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M.  S.  BOWIiN. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


mtm^utimmm 


jmmmm 


THE 


LAW   OF   CONTRACTS. 


BY 


THEOPHILUS  PARSONS,  LL.  D., 

T)ANE    PKOFESSOE    OF    LAW   IN   HARVAED    UNIVERSITY,    AT    CAMBRIDGE. 


VOLUME   I. 


THIRD      EDITION. 


BOSTON: 
LITTLE,     BROWN    AND     COMPANY. 

1857. 


%^n 


Entered  according  to  the  Act  of  Congress,  in  the  yeai*  1857,  by 

THEOPHILUS    PARSONS, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE: 
ALLEN    AND    FAKNHAM,     PRINTERS 

1% 


%^l\l,rT  ■^ 


'/-.'I'.-r  Q-./.  ,- 


f 


TO 


WILLIAM    H.    PRESCOTT,    ESQ., 

THE   HI8TORIAX   OF   SPAIN,   MEXICO,   AXD   PERU. 

• 

I  MIGHT,  perhaps,  find  some  excuse  for  dedicating  this  work 
to  you,  in  the  natural  desire  of  connecting  my  own  labors  with 
those  which  have  won  for  you  and  for  our  country  so  much 
renown.  And  even  more  in  the  friendship  which  began  so 
long  ago  we  cannot  remember  its  beginning;  and  in  the  long 
years  that  through  childhood,  youth,  and  manhood,  have 
brought  us  upon  the  confines  of  age,  if  not  beyond  them,  has 
never  for  a  moment  been  broken. 

But  neither  of  these  is  my  principal  motive.  That,  I  must 
confess  to  be,  a  strong  and  irrepressible  desire  to  speak  of  your 
father;  to  express,  however  imperfectly,  my  gratitude  to  him; 
and  to  execute,  even  in  this  slight  degree,  the  purpose  I  have 
long  had,  of  putting  on  record  my  testimony  to  the  excellence 
of  one  who  stood  for  many  years  at  the  head  of  his  profession, 
who  was  my  master  during  my  apprenticeship  to  the  law,  and 
ever  after  my  revered  instructor  and  invaluable  friend. 

It  was  in  1815  that  I  entered  his  office  as  a  student.  I 
had  been  accustomed  all  my  life  to  see  him  often,  and  hear 
him  often  spoken  of,  for  our  families  were  intimate,  and  ho 
was  among  my  father's  most  valued  friends ;  and  I  had 
always  heard  him  mentioned  with  a  kind  and  degree  of  respect 
that  seemed  to  be  paid  to  him  alone.  I  knew  that  he  had  held 
tlie   highest  place   in   his  profession    for  some  years;  but  the 


IV  DEDICATION. 

regard  and  reverence  generally  accorded  to  him  were  more 
than  any  mere  professional  success  could  win.  When  I 
entered  his  office,  he  had  already  given  up  a  large  part  of  his 
business.  He  did  not  go  often  into  court ;  but  I  heard  him  in 
some  important  cases,  and  was  a  constant  observer  of  the 
relations  between  him  and  his  numerous  clients.  And  it 
was  not  long  before  I  learned  the  grounds  of  his  high  social 
and  professional  position. 

In  the  first  place*  let  me  speak  of  his  judgment  and  sagacity. 
I  cannot  conceive  of  any  person  possessing,  in  greater  perfec- 
tion, that  admirable  thing  we  call  good  sense.  I  doubt 
whether,  in  his  long  and  active  life,  he  ever  made  any  one 
mistake  of  importance.  Whoever  employed  him  in  any 
business,  soon  saw  that  the  wisest  thing  that  could  be  done 
in  his  case,  and  at  every  step  of  it,  was  always  the  very  thing 
that  was  done.  Hence  a  confidence  without  limit  was  reposed 
in  his  opinion  ;  and  his  advice  was  accepted  and  followed  by 
all  who  received  it,  as  if  it  made  further  inquiry  or  consider- 
ation wholly  unnecessary. 

The  next  quality  I  would  mention  was  a  kindred  and 
connected  one ;  I  mean  his  perfect  truthfulness.  It  seemed 
as  if  he  could  not  deceive ;  and  if  he  had  the  faculty  originally 
he  must  have  lost  it  by  non  user.  It  made  no  difference  on 
which  side  of  a  question  the  party  propounding  it  to  him 
stood ;  for  his  answer  was  to  the  question,  and  not  to  the  man. 
Whether  he  dealt  with  a  client,  an  adverse  party,  a  witness, 
the  jury,  or  the  court,  he  dealt  with  them  all  honestly.  He 
had,  what  I  am  sorry  to  call  the  rare  quality,  of  loving  truth  so 
well,  that  his  view  of  it  was  not  to  be  distorted  or  obstructed 
either  by  any  interest  or  any  feeling  of  his  own  or  of  those 
whom  he  represented,  or  by  any  disturbing  influences  of  cir- 
cumstances or  position. 

I  speak  last  of  his  learning,  although  this  was  perhaps  more 


DEDICATION.  V 

frequently  remarked  upon  than  his  moral  qualities,  however 
deeply  they  were  felt.  He  had  passed  many  years  in  laborious 
and  well-directed  study ;  for  he  was  led  to  this,  both  by  his 
sense  of  duty  to  his  clients,  and  by  his  sagacity,  which  told  him 
that  here  he  must  find  the  means  of  sound  judgment  and  use- 
fulness and  success  ;  and  also  by  the  love  of  his  profession  and 
of  the  law  as  a  science.  For  many  years  after  he  had  with- 
drawn from  the  profession,  both  as  advocate  and  chamber- 
counsel,  he  still  continued  his  legal  studies ;  and  often  when  I 
have  called  upon  him  and  stated  some  difficult  question  which 
had  occurred  in  my  practice,  he  would  —  not  for  a  fee  —  but  in 
his  kindness  to  me,  and  his  love  of  the  law,  enter  upon  the 
investigation  with  the  zeal  of  earlier  days,  and  give  me  the 
whole  benefit  of  his  vast  knowledge  and  his  unerring  sagacity. 

To  these  qualities  I  must  add  that  of  universal  kindness  and 
unfailing  courtesy.  And  certainly  I  have  given  good  reasons 
why  he  held  so  long  the  headship  of  a  ]3rofession  in  which  it  is 
not  easy  to  climb  to  the  high  places,  and  very  difficult  to  hold 
them;  and  also,  why,  outside  of  his  profession  and  by  society 
at  large,  he  was  venerated  during  his  long  life  as  few  men 
among  us  have  ever  been.  Let  me  add  that,  while  he  mani- 
fested, wherever  in  the  conduct  of  his  affairs  it  was  needed,  the 
firmness  and  fearlessness  that  he  inherited  from  a  father  who 
^>tood  like  a  tower  of  strength  in  command  of  the  American 
forces  at  Bunker  Hill,  he  was  ever,  and  remarkably,  unassum- 
ing, retiring,  and  modest.  It  is  difficult  to  believe  that  he  could 
not  measure  his  own  success,  or  that  he  did  not  know  his  high 
position  ;  but  no  one  ever  heard  a  word  or  a  tone  from  him 
which  indicated  such  knowledge. 

He  was  not  eloquent,  and  never,  to  my  knowledge,  attempted 
to  be  ;  and  yet  he  was  a  most  successful  advocate.  It  was  his 
purpose  and  endeavor  to  do  for  every  client,  and  in  every  case, 
all  that  could  be  done  by  learning,  sense,  industry,  and  honesty  ; 


vi  DEDICATION. 

this  he  knew  he  could  do,  and  did.     And  more'  than  this  he  had 
no  desire  to  do. 

Such  was  William  Prescott.  When  he  died  in  1844,  at 
the  age  of  82,  I  had  known  him  intimately  for  twenty-nine 
years,  and  had  known  of  him  many  more.  And  I  never  yet 
heard  a  word  spoken,  and  I  never  heard  of  a  word  spoken,  to 
his  disparagement  or  dispraise,  during  his  long  life  or  since  its 
close,  by  any  person  whomsoever;  not  even  have  I  heard  the 
"but"  or  "  if"  with  which  many  indulge  themselves  in  qualify- 
ing and  clouding  the  commendation  they  cannot  but  render. 
He  has  left  behind  him  no  brilliant  speeches  to  be  remembered 
and  quoted  ;  no  books  in  which  the  fruits  of  his  learning  and 
wisdom  were  gathered  and  preserved ;  and  they  who  knew  him 
are  passing  away,  and  already  his  reputation  is  becoming 
traditional.  And  very  glad  shall  I  be,  if,  by  this  slight  memo- 
rial, I  may,  for  a  single  moment,  arrest  the  waves  of  time,  in 
their  advancing  flow  over  the  sands  in  which  are  written  his 
name,  and  the  names  of  many  others  of  our  best  and  greatest. 

TIIEOPHILUS  PARSONS. 

Cambridge,  October,  1853. 


P  E  E  F  A  C  E 


TO     THE     FIRST     EDITION 


The  title  of  the  thirtieth  chapter  of  the  Second  Book 
of  Blackstone's  Commentaries  is,  '•'  Of  title  by  gift,  grant, 
and  contract ;'"  and  in  no  other  chapter  does  he  treat  of 
the  law  of  contracts  under  that  name.  Since  the  publi- 
cation of  that  work,  many  treatises  on  this  subject  have 
been  published  in  England  and  in  this  country ;  some  of 
them  are  large  volumes,  and  the  latest  are  the  largest. 
But  I  have  thouQ-lit  that  a  work  of  still  wider  extent, — 
that  is,  embracing  some  topics  not  usually  presented  in 
these  treatises,  and  exhibiting  the  principles  of  law  upon 
many  subjects  more  fully, —  would  be  useful  to  the  stu- 
dent and  the  practitioner.  There  is,  perhaps,  no  definite 
standard  by  which  we  may  determine  what,  and  how  much, 
a  work  on  this  branch  of  the  law  should  contain.  The 
law  of  contracts  may  be  said  to  include,  directly  or  indi- 
rectly, almost  all  the  law  administered  in  our  courts.  But 
the  line  must  be  drawn  somewhere  ;  and  I  hope  it  will  be 
found  that  I  have  not  wandered  too  far  from  the  proper 


Vlll  PREFACE. 

limits  of  my  subject,  in  my  desire  to  present  it  fully,  and 
to  give  to  all  its  principles  the  light  they  reflect  upon  each 
other. 

This  work  is  larger  than  any  of  its  predecessors  ;  but, 
for  finding  room  in  the  text  for  all  I  wished  to  say  in  it, 
I  have  relied  mainly  on  a  peculiarity  in  its  plan, —  that 
is,  on  the  rigorous  exclusion  from  the  text  of  all  cases. 
I  have  endeavored  to  state  in  the  text  the  principles  and 
rules  of  the  law,  as  accurately,  as  compactly,  and  as  logi- 
cally as  I  could ;  and  in  the  notes,  and  there  only,  I  have 
given  my  authorities.  Such  was  my  rule ;  and  the  excep- 
tions to  it  are  few ;  and  my  reason  for  it,  in  addition  to 
the  saving  of  space,  was  this :  If  the  text  of  any  book  is 
composed,  in  any  considerable  degree,  of  selected  cases, 
whoever  uses  the  book  (whether  in  learning  or  in  prac- 
tising the  law),  will  naturally  suppose  that  these  cases 
contain  the  prevailing,  if  not  the  whole,  authority  on  that 
topic,  for  they  are  selected  and  presented  for  that  very 
purpose ;  but,  if  he  relies  upon  them,  he  may  be  after- 
wards surprised  by  the  exhibition  of  other  cases,  equally 
authoritative,  but  leading  to  opposite  conclusions.  These 
also  may  have  been  referred  to  by  name  in  the  notes,  and 
even  the  word  "contra"  affixed  to  them,  but  perhaps  they 
are  not  within  the  reader's  reach,  or  he  has  not  time  to 
examine  them ;  and,  at  all  events,  nothing  which  is  said 
of  them  in  a  foot-note,  would  place  them  on  an  equality 
with  their  favored  opponents.  Undoubtedly,  a  text-writer 
upon  any  branch  of  the  law  has  strong  inducements  to 
make  up  his  book  by  quotation  from  authorities.     Not 


PREFACE.  IX 

merely  because  it  fills  a  page  and  disposes  of  a  topic  with 
little  labor,  but  because  on  all  obscure  and  controverted 
questions  it  is  easy,  by  ample  quotation,  to  seem  to  state 
the  law,  and  yet  avoid  both  the  toil  of  investigation,  and 
the  responsibility  of  the  decision. 

I  have  endeavored  to  state  in  the  text  what  I  think  to 
be  the  law ;  and  in  the  notes  I  have  endeavored  to  enable 
the  reader  to  judge  for  himself  whether  I  am  right.  Cases 
which  are  only  direct  authorities  for  the  statements  in  the 
text  are  generally  referred  to  only  by  name  and  place. 
If  they  illustrate  these  statements,  still  more  if  they 
modify  them,  or  contradict  them,  they  are  given  by  quo- 
tation, or  abstract,  at  greater  or  less  length,  as  their 
respective  importance  seemed  to  demand.  Indeed,  I  have 
wished  to  enable  the  reader  to  investigate  a  question  as 
he  would  do  it  in  a  complete  library,  so  far  as  a  single 
work  of  moderate  size  could  accomplish  this.  The  Re- 
ports are  now  so  numerous  that  few  persons  endeavor  to 
possess  them  all;  and  it  was  thought  that  this  circum- 
stance would  give  additional  value  and  utility  to  a  full 
exhibition  of  authorities.  At  this  School,  w^e  have,  I  be- 
lieve, a  more  complete  collection  than  exists  elsewhere  of 
law  books  in  the  English  language ;  for  in  England,  they 
have  not,  as  far  as  I  know,  full  collections  of  American 
law,  and  nowhere  else  in  this  country  is  it  attempted,  as 
I  suppose,  to  make  the  series,  both  of  English  and  Ameri- 
can text-books  and  reports,  absolutely  perfect ;  this  we 
aim  at,  and,  with  few  exceptions,  accomplish.  And  only 
where  I  could  use  such  a  library  should  I  have  endeavored. 


X  PREFACE. 

to  give  to  all  the  parts  of  so  wide  a  subject  as  the  law 
of  Contracts  this  fulness  of  annotation. 

Nor  would  it  have  been  possible  for  me  to  have  per- 
formed alone  all  the  labor  necessary  for  this  purpose ; 
and  in  the  preparation  of  these  notes  I  have  been  very 
greatly  indebted  to  Mr.  E.  H.  Bennett,  one  of  the  able 
editors  of  the  very  valuable  reprint  of  English  Law  and 
Equity  Reports,  to  Mr.  A.  W.  Machen,  formerly,  and  to 
Mr.  C.  C.  Langdell,  now,  Librarian  of  our  Law  School,  and 
to  Mr.  E.  L.  Pierce  and  other  gentlemen  connected  with 
it  as  students.  Few  things  are  more  vexatious  than  to 
search  for  an  authority  referred  to  as  pertinent  to  a  ques- 
tion under  investigation,  and  either  fail  of  finding  it,  or 
discover  that  it  is  wholly  irrelevant.  I  believe  I  may  say, 
that  all  that  labor  and  care  could  do  to  prevent  this  has 
been  done.  More  than  six  thousand  cases  are  referred  to 
in  this  volume ;  but  from  the  beginning  to  the  end  of  the 
book  no  case  is  cited  because  cited  elsewhere,  none  merely 
on  the  authority  of  an  index  or  digest,  or  of  a  marginal 
or  head  note,  none  without  actual  investigation  of  the 
case  in  its  whole  extent,  and  none  without  a  subsequent 
and  independent  verification  of  the  citation.  But  no  care 
nor  labor  can  wholly  avoid  mistakes ;  and  as  the  plan  of 
this  work  is  somewhat  novel,  and  it  embraces  a  great 
variety  of  topics,  and  presents  questions  which  it  is  not 
only  difficult,  but,  at  present,  impossible,  to  settle  on 
authority,  I  dare  only  to  hope  that  the  errors  of  the  work 
will  not  be  found  so  numerous  or  so  grave  as  to  impair 
materially  its  utility.     And  if  other  editions  are  called 


PREFACE.  XI 

for,  great  care  will  be  taken  to  profit  by  all  the  defects 
discovered,  and  all  the  emendations  suggested. 

It  may  be  noticed,  that  the  citations  and  references  are 
confined,  not  absolutely,  but  very  much,  to  adjudged  cases. 
I  hope  it  will  not  be  supposed  that  I  wish  to  intimate  that 
I  have  made  my  book  without  using  the  labors  of  those 
who  have  preceded  me ;  for  I  have  supposed  it  to  be  not 
only  my  right,  but  my  duty,  to  make  the  utmost  possible 
use  of  all  our  text-books.  But  I  do  not  often  refer  to  them. 
They  have  not  the  same  authority  as  adjudications  ;  and 
a  mere  reference  to  a  text-book  would  be  of  little  use  to 
a  reader  who,  not  having  access  to  the  volume,  could  not 
verify  it;  while  one  who  could  turn  to  the  book  would 
generally  find  with  great  ease,  by  means  of  the  index, 
the  author's  view  of  the  topic  under  consideration.  I 
have  therefore  avoided  these  references  generally ;  and 
have  thereby  gained  what  I  needed  most,  space  for 
authorities. 

The  order  under  which  the  various  topics  of  the  very 
comprehensive  subject  of  this  work  should  be  considered 
is  not  determinable  by  any  precise  rules ;  and  without 
supposing  that  I  have  invented  a  division  and  arrange- 
ment which  may  be  regarded  as  logically  precise  and  ac- 
curate, I  have  found  one  which  was  very  convenient  to 
me,  and  I  have  not  seen  reason  to  believe  that  those  who 
use  the  book  will  find  it  particularly  objectionable.  But 
one  effect  of  this  method  should  perhaps  be  suggested ; 
and  that  is  the  difference  in  the  apparent  proportions  of 
the  space  given  to  different  topics.     Thus,  "  Sales  "  may 


XU  PREFACE. 

be  thought  to  occupy  a  comparatively  small  space ;  but 
it  will  be  found  that  under  the  distinct  heads  of  Consider- 
ation, Assent,  Warranty,  Guaranty,  Stoppage  in  Transitu, 
Construction,  Statute  of  Frauds,  &c.,  &c.,  many  things  are 
said  which  would  be  said  in  connection  with  Sales,  if  that 
were  the  only  or  the  chief  topic  of  the  book.  But  these 
same  things  are  to  be  noticed  also  in  connection  with 
other  topics ;  and  it  was  thought  best  to  speak  of  them 
once  for  all,  when  discussing  the  distinct  subjects  to  which 
they  more  particularly  belong.  And  in  this  way  I  have 
perhaps  avoided  some  portion  of  the  repetition  which, 
both  from  the  nature  of  the  subject  as  presenting  many 
topics  again  and  again  under  a  great  variety  of  aspects, 
and  from  the  difficulty  which  others  have  found  in  escap- 
ing it,  might  be  thought  to  belong  almost  inevitably  to 
any  treatment  of  the  law  of  contracts. 

T.  P. 

Cambridge,  October,  1853. 


CONTENTS. 


PART    I. 

THE  LAW  OF  CONTRACTS   CONSIDERED  IN  REFERENCE  TO 
THE   OBLIGATIONS   ASSU:^IED   BY   THE   PARTIES. 


PRELIMINARY    CHAPTER. 
SECTION  I. 

Page 

Of  the  extent  and  scope  of  the  law  of  contracts .3 

SECTION  II. 
Definition  of  contracts 5 

SECTION   III. 
Classification  of  contracts ^    ,  7 


BOOK   I. 

OF  PARTIES   TO  A; CONTRACT. 

CHAPTER    I. 

CLASSIFICATION  OF  PARTIES. 

B 


XIV  CONTENTS. 

CHAPTER    II. 

OF   JOINT    PAKTIES. 

SECTION  I. 
Whether  parties  are  joint  or  several 11 

SECTION   II. 
Of  some  incidents  of  joinder 21 

SECTION   III. 
Of  contribution Si 

CHAPTER    III. 

AGENTS. 

SECTION   I. 
Of  agency  in  general 38 

SECTION  II. 

In  what  manner  authority  may  be  given  to  an  agent 42 

SECTION   III. 
Subsequent  confirmation 44 

SECTION  IV. 
Signature  by  an  agent 47 

SECTION   V. 
Duration  and  extent  of  authority 49 

SECTION   VI. 
The  right  of  action  under  a  contract 53 

SECTION  VII. 
Liability  of  an  agent 54 

SECTION   VIII. 
Revocation  of  authority 58 

SECTION   IX. 

How  the  principal  is  affected  by  the  misconduct  of  his  agent .     .     .     G2 


CONTENTS.  XV 

SECTION   X. 
Of  notice  to  an  agent 64 

SECTION  XL 
Of  shipmasters 66 

SECTION   XII. 

Of  an  action  against  an  agent  to  determine  the  rights  of  a  principal      67 

SECTION   XIII. 
The  rights  and  obligations  of  principal  and  agent  as  to  each  other  .     09 

I 

CHAPTER    IV. 

FACTORS    AND   BROKERS. 

SECTION  I. 
Who  is  a  factor  and  who  a  broker 78 

SECTION  II. 
Of  factors  under  a  commission 78 

SECTION   III. 
Of  the  duties  and  the  rights  of  factors  and  brokers 79 

CHAPTER    V. 

SERVANTS.  86 

CHAPTER    VI. 

ATTORNEYS.  94: 

CHAPTER    VII. 

TRUSTEEtS. 

SECTION   I. 
Oriffin  of  trusts 100 


XVI  CONTENTS. 

SECTION  II. 
Classification  of  trusts 101 

SECTION  III. 
Private  trustees 102 

SECTION  IV. 
Public  trustees 104 

CHAPTER    VIII. 

EXECUTORS  AND  ADMIXISTRATORS.  107 

CHAPTER     IX. 

GUARDIANS. 

SECTION  I. 
Of  the  kinds  of  guardians 113 

SECTION  II. 
Of  the  duty  and  power  of  a  guardian 114 

CHAPTER    X. 

CORPORATIONS.  117 

CHAPTER    XI. 

JOINT-STOCK   COMPANIES.  121 

CHAPTER    XII. 

PARTNERSHIPS. 

SECTION  I. 
What  constitutes  a  partnership 124 

SECTION  11. 
Of  the  real  estate  of  a  partnership 125 


CONTENTS.  XVU 

SECTION    III. 
Of  the  good-will 130 

SECTION  IV. 

0?  t\iQ  delectus  personarum 131 

SECTION  V. 
How  a  partnership  may  be  formed 131 

SECTION   VI. 

Of  the  right  of  action  between  partners 139 

SECTION  VII. 
Of  the  sharing  of  losses 141 

SECTION   VIII. 
Of  secret  and  dormant  pai'tners 142 

SECTION   IX. 
Of  retiring  partners 143 

SECTION   X. 
Of  nominal  partners 145 

SECTION   XL 
"When  a  joint  liability  is  incurred 147 

SECTION  XII. 
Of  the  authority  of  each  partner 151 

SECTION   XIII. 
Power  of  a  majority 1G8 

SECTION   XIV. 
Of  dissolution 170 

SECTION    XV. 

Of  the  rights  of  creditors  in  respect  to  partnership  funds       .     .     .     174 

SECTION   XVI. 

Limited  partnei'ships 185 

B  * 


Xviii  CONTENTS. 


CHAPTER    XIII. 

NEW    PARTIES   BY   NOVATIOX.  187 

CHAPTER    XIV. 

NEW  PARTIES   BY   ASSIGNMENT. 

SECTION  I. 
Of  assignment  of  choses  in  action 192 

SECTION  II. 
Of  the  manner  of  assignment 197 

SECTION  III. 
Of  the  equitable  defences 198 

SECTION  IV. 
Covenants  annexed  to  land 199 

CHAPTER    XV. 

INDORSEMENT. 

SECTION  I. 
Of  negotiable  bills  and  notes 202 

SECTION  II. 
Of  the  essentials  of  negotiable  bills  and  notes 206 

SECTION  III. 
Of  indorsement 211 

SECTION  IV. 
Of  indorsement  after  maturity 213 

SECTION  V. 
Notes  on  demand 217 


CONTENTS.  XIX 

SECTION  VI. 
Of  presentment  for  acceptance 221 

SECTION  VII. 
Of  presentment  for  payment 223 

SECTION   VIII. 
Of  whom,  and  when,  and  where,  the  demand  should  be  made   .     .     228 

SECTION  IX. 
Of  notice  of  non-payment 231 

SECTION   X. 
Of  protest 237 

SECTION   XI. 
Of  damages  for  non-payment  of  bills 238 

SECTION   XII. 
Bills  of  lading 239 

SECTION   XIII. 
Of  property  passing  with  possession 239 

CHAPTER    XVI. 

INFANTS. 

SECTION   I. 
Incapacity  of  infants  to  contract 242 

SECTION  II. 

Of  the  obligations  of  parents  in  respect  to  infant  children      .     .     .     247 

SECTION   III. 
"Voidable  contracts  for  necessaries 2 GO 

SECTION   IV. 
Of  the  torts  of  an  infant 264 


XX  CONTENTS. 

SECTION  V. 
Of  the  effect  of  an  infant's  avoidance  of  his  contract 268 

SECTION   VI. 
Of  ratification    .     .     .     .    ' 269 

SECTION  VII. 
Who  may  take  advantage  of  an  infant's  liability 275 

SECTION  VIII. 

Of  the  marriage  settlements  of  an  infant 277 

SECTION   IX. 
Infant's  liability  with  respect  to  fixed  property  acquired  by  his  con- 
tract     279 

CHAPTER    XVII. 

OF    THE   COXTKACTS    OF    MARRIED   WOMEN. 

SECTION  I. 

Of  the  general  effect  of  marriage  on  the  rights  of  the  parties     .     .     283 

SECTION  II. 

Of  the  contracts  of  a  married  woman  made  before  marriage      .     .     284 

SECTION   III. 
Of  the  contract  of  a  married  woman  made  during  the  marriage     .     286 

CHAPTER    XVIII. 

BANKRUPTS  AND  INSOLVENTS.  307 

CHAPTER    XIX. 

PERSONS    OF   INSUFFICIENT   MIND    TO    CONTRACT. 

SECTION  I. 
Non  compotes  mentis 310 


CONTENTS.  XXI 

SECTION   11. 
Spendthrifts 315 

SECTION  III. 
Seamen 316 

SECTION  IV. 
Persons  under  duress 319 

CHAPTER    XX. 

ALIENS.  323 

CHAPTER    XXI. 

SLAVES. 

SECTION  I. 

Nature  of  the  relation  of  master  and  slave 326 

SECTION  II. 
Action  for  freedom 328 

SECTION  III. 
The  capacity  of  slaves  to  contract 334 

SECTION  IV. 
Liability  of  the  master  for  the  slave 335 

SECTION  V. 
Of  contracts  between  a  slave  and  one  not  his  master 337 

SECTION  VI. 
Of  gifts  to  a  slave 338 

SECTION  VII. 
The  peculium 340 

SECTION  VIII. 
Of  the  marriage  of  slaves       341 


XXll  CONTENTS. 

SECTION   IX. 
Emancipation 342 

SECTION  X. 
Of  slaves  for  a  limited  time,  or  statu-liberi 346 

CHAPTER    XXII. 

OF    OUTLAWS,    PERSONS    ATTAINTED,   AND    PERSONS    EXCOMMUNI- 
CATED. 348 


BOOK    II. 

CONSIDERATION  AND  ASSENT. 

CHAPTER    I. 

CONSIDERATION. 

SECTION  I. 
The  necessity  of  a  consideration 353 

SECTION  11. 
Kinds  of  considerations 356 

SECTION  III. 
Adequacy  of  consideration 362 

SECTION  IV. 
Prevention  of  litigation 363 

SECTION  V. 
Forbearance 365 

SECTION  VI. 
Assignment  of  debt 370 

SECTION  VII. 
Work  and  service 370 


CONTENTS.  XXm 

SECTION   VIII. 
Trust  and  confidence 372 

SECTION  IX. 
A  promise  for  a  promise 373 

SECTION  X. 
Subscription  and  contribution 377 

SECTION  XL 
Of  consideration  void  in  part 379 

SECTION  XII. 
Illegality  of  consideration        380 

SECTION  XIII. 
Impossible  considerations        383 

SECTION    XIV. 
Failure  of  consideration 386 

SECTION  XV. 
Rights  of  a  stranger  to  the  consideration 389 

SECTION   XVI. 
The  time  of  the  consideration      .  « 391 

CHAPTER     II. 

ASSENT   OF    PARTIKS. 

SECTION  I. 
"What  the  assent  must  be 399 

SECTION  II. 
Contracts  on  lime 403 


XXIV  CONTENTS. 

BOOK    III. 

THE    SUBJECT-MATTER    OF    CONTRACTS. 

CHAPTER    I. 

PRELIMINAUY   REMARKS.  411 

CHAPTER     II. 

PURCHASE   AND    SALE    OF    REAL    PROPERTT.  414 

CHAPTER    III. 

HIRING   OF   REAL   PROPERTY. 

SECTION  I. 
Of  the  lease 421 

SECTION  IL 
Of  the  general  liabilities  of  the  lessor 422 

SECTIOi^  HI. 
Of  the  general  liability  and  obligation  of  the  tenant 423 

SECTION  IV. 
Of  surrender  of  leases  by  operation  of  law 428 

SECTION  V. 
Of  away -going  crops 429 

SECTION  VI. 
Of  fixtures 430 

SECTION  VII. 
Of  notice  to  quit 432 


CONTENTS.  XXV 

CHAPTER     IV. 

SALE  OF  PERSONAL  PROPERTY. 

SECTION  I. 
Essentials  of  a  sale 435 

SECTION  11. 
Absolute  sale  of  chattels 436 

SECTION  III. 
Price,  and  agreement  of  parties 439 

SECTION  IV. 
The  effect  of  a  sale 440 

SECTION   V. 
Of  possession  and  delivery 441 

SECTION  VI. 
'  Conditional  sales 449 

SECTION  VII. 
Mortgages  of  chattels 452 

CHAPTER    V. 

WARRANTY.  457 

CHAPTER    VI. 

STOPPAGE   IN   TRANSITU.  476 

CHAPTER    VII. 

HIRING   OF   CHATTELS.  491 

VOL.    I.  C 


XXVI  CONTENTS. 

CHAPTER    VIII. 

GVARANTY   OR   SURETYSHIP. 

SECTION  I. 
What  is  a  guai-anty 493 

SECTION  11. 
Of  the  consideration 496 

SECTION  III. 
Whether  a  promise  is  original  or  collateral 497 

SECTION  IV. 
Of  the  agreement  and  acceptance 500 

SECTION  V. 
Of  the  change  of  liability 503 

SECTION   VI. 
How  a  guarantor  is  affected  by  indulgence  to  a  debtor     ....     509 

SECTION  VII. 
Of  notice  to  the  guarantor 514 

SECTION  VIII. 
Of  the  guaranty  by  one  in  office 515 

SECTION    IX. 
Of  revocation  of  guaranty 517 

CHAPTER    IX. 

HIRING   OF   PERSONS. 

SECTION  I. 
Servants 518 

SECTION  II. 
Apprentices 533 


CONTENTS.  XXVii 

CHAPTER    X. 

CONTRACTS  FOR  SERVICE  GENERALLY.  537 

CHAPTER    XI. 

MARRIAGE. 

SECTION  I. 
Contracts  to  marry 543 

SECTION  II. 
Promises  in  relation  to  settlements  or  advances 554 

SECTION   III. 
Contracts  in  restraint  of  marriage 556 

SECTION  IV. 
Contracts  of  marriage 557 

SECTION   V. 
Divorce 56G 

CHAPTER    XII. 

BAILMENT. 

Preliminary  remarks 569 

SECTION  I. 
Depositum 572 

SECTION   II. 
Mandatum 580 

SECTION  III. 
Commodatum 590 

SECTION  IV. 
Pignus 591 


XXviii  CONTENTS. 

SECTION  V. 
Locatio 603 

SECTION  VI. 
Who  is  a  common  carrier 639 

SECTION  VII. 
Obligations  of  a  common  carrier 648 

SECTION   VIII. 
"When  the  responsibility  begins 650 

SECTION   IX. 

When  the  responsibility  ends      .     .     .  [ 658 

SECTION  X. 
Where  a  third  party  claims  the  goods 677 

SECTION  XL 
Compensation 680 

SECTION  XII. 
Of  the  lien  and  agency  of  the  carrier ;  and  his  responsibility  beyond 

his  own  route 681 

SECTION  XIII. 
Common  carriers  of  passengers    .     .  690 

SECTION   XIV. 
Of  special  agreements  and  notices 703 

SECTION   XV. 
Offraud 719 


INDEX  TO   CASES   CITED. 


[The  paging  of  the  first  edition  is  preserved  at  the  top  of  the  page  in  all  the  subsequent  editions 
the  new  paging  being  at  the  bottom.     But  the  notes  are  in  some  instances  changed  from  one  page  to 
the  next,  and  the  cases  cited  from  these  notes  will  be  found  in  the  pages  after,  (in  a  Tery  few  in- 
stances in  the  page  before,)  that  given  in  the  table.] 


Abby  I'.  Chase 

Page 
48,  58 

Abbott  V.  Goodwin 

454 

V.  Kojiers 

383 

Abbot  V.  Bayley 
V.  Hcrmon 

306  n 
393 

V.  Hendricks 

215 

Abecl  I'.  Kaddiff 

422 

Abell  V.  Warren 

245,  24G 

ex  parte 
Abney  r.  Kinpsland 

180 
444 

Ahsolon  V.  Marks 

208 

Acebal  V.  Levy 

440 

Acey  V.  Femie 
Acker  v.  Phoenix 

41,  50 
414 

Ackeman  i\  Emott 

104 

Ackley  v.  Kcllop:f)^          619 
V.  Hoskins 

,  G20, 

687,  689 
535 

Acome  v.  The  Am.  Mineral  Co. 

397 

Adair  v.  Wincliester 

193 

Adams  v.  Hardy 

206 

V.  Johnson 

464 

V.  Jones 

493,  501 

V.  Lambert 

415,  452 

V.  Lindsell 

406,  407 

V.  New  Orleans  Stcam-Tow- 

Boat  Co. 

646 

V.  Otterback 

235 

V.  Robinson 

189 

V.  Smith 

217 

V.  Torbert 

231 

V.  Wheeler 

443 

r.  Woonsocket  Co. 

528 

Adamson  v.  Jarvis 

37,  69 

Addison  ?'.  Gandasscqui 
Adellc  V.  Beiiregard 
Adlard  r.  Booth 

82 
330 
387 

Adm'rs  of  Doimington  v. 

Adm 

rs  of 

aiitcliell 

306  ?i 

Page 

Agawam  Bank  v.  Strever  509 

Agnew  V.  Bank  of  Gettysburg  234 

Aguire  v.  Parmclee  486 

Aiken  v.  Barkley  216 

Ainslie  i'.  Bovnton  191,  199 

V.  Medlycott  376 

Akerman  v.  Humphrey  489 

Albertson  v.  Hallowuy  389 

Albin  V.  Presby  631 

Albro  V.  Aganam  Canal  Co.  528 

Alchorne  i\  Gomme  428 

Alden  v.  Clark  496 

Alderson  v.  Pope  142,  146,  163 

V.  Temjile  490 

Aldis  V.  Chapman  293 

Aldrich  v.  Grimes  273 

V.  Warren  206 

Aldridge  v.  Turner  496 

Alfred  v.  Pitzjames  531 

Alexander  v.  Alexander  71 

V.  Deneale  443 

V.  Gardner  441,  446 

V.  Gibson  52 

V.  Greene  645 

V.  Hcriot  273 

V.  Hutclicson  269 

V.  Pierce  320 

)'.  Thomas  208 

Alkinson  i'.  Horridgc  474 

Allan  f.  Gripper  485 

Allein  v.  Sliarp  343,  .344 

Allen  V.  Aldrich  293,  297 

V.  Anderson  475 

r.  Brvan  75 

V.  Cameron  388 

t'.  Centre  Vallev  Co.  18(» 

r.  Culver           '  425 

V.  Davis  '"'2 

V.  Dunn  17G 


XXX 


INDEX   TO    CASES    CITED. 


Allen  V.  Dykers 

596,  598 

Armfield  v.  Tate 

273 

V.  Hayward 

89,  92 

Armistead  v.  White 

626 

i\  Hooker 

475 

Armitage  v.  Insole 

445 

V.  Merchants'  Bank 

73 

Arms  V.  Ashley 

.355 

V.  Minor 

243,  261 

Armstrong  v.  Baldock 

442 

r.  Pink 

472 

V.  Christian! 

235 

V.  Sewell                         645 

655,  657 

V.  Hussey 

143 

V.  Smith's  Adm'r 

225,  227 

V.  Lewis 

132 

i\  Suydam 

74 

i\  McDonnald 

258 

V.  Thompson 

497 

V.  Robinson 

168 

V.  Wells 

175,  180 

V.  Toler 

85 

380 

V.  Williams 

239 

Arnold  V.  Brown                     156, 

160 

173 

Allison  V.  Haydon 

539 

r.  Halenbake 

645 

AUnutt  r.  Ashenden 

509 

V.  Lyman 

188 

390 

Allwood  V.  Haseldon 

224 

V.  Richmond  Iron  works 

275, 

Alston  i\  Balls 

605 

311 

Alvord  V.  Smith 

131 

Arnot  v.  Biscoe 

462 

Ambler  i'.  Bradley 

136 

Arnott  V.  Hughes 

462 

American  Bank  v.  Doolittle 

.162 

Arnsby  v.  Woodward 

427 

V.  Jenness 

217 

Arrott  V.  Brown 

74 

American  Ins.  Co.  v.  Oakley 

118 

Arthur  v.  Barton 

67 

Amherst  Academy  v.  Cowls 

378 

V.  Wells 

333 

Amidown  v.  Osgood 

145 

Arton  V.  Booth 

162 

Amies  v.  Stevens 

637 

Ash  V.  Putnam 

490 

Amor  ?;.  Fearon 

521,  522 

V.  Savage 

454 

Amory  v.  Broderick 

445,  4.50 

Ashburnham  v.  Thompson 

103 

Ancher  r.  Bank  of  England 

212 

Ashby  V.  Ashby 

109 

Anderson  v.  Anderson 

567 

Ashmole  ;;.  Wainwright 

649 

V.  Coonley 

39 

Aston  V.  Heavan 

690 

V.  Davis 

496 

Aspdin  V.  Austin 

529 

V.  Drake 

229 

Asijinall  v.  AVake 

111 

V.  Hodgson 

446 

Astley  V.  Reynolds 

320 

321 

V.  Maiinon 

513 

Astor  V.  Miller 

200 

V.  Martindale         14, 

17,  26,  31 

Atchinson  v.  Baker 

547 

549 

V.  Miller 

196 

Atkin  V.  Acton 

.521 

526 

V.  Tompkins          153, 

155,  156, 

V.  Barwick 

441 

490 

160 

Atkins  V.  Curwood 

288 

,  289 

V.  Turnpike  Co. 

27 

1-.  Hill 

107 

V.  Van  Alen 

198 

V.  Howe 

472 

Andrew  v.  Allen 

54 

Atkinson  v.  Bayntun 

366 

Andrews  v.  Bond 

195,  212 

V.  Brooks 

216 

V.  Boyd 

226 

V.  Manks 

208 

V.  Estes 

49 

V.  Ritchie 

446 

V.  Franklin 

211 

V.  Settree 

367 

V.  Kneeland 

52,  467 

Atkyns  v.  Amber 

83 

V.  Planters  Bank 

162 

Atlee  V.  Backhouse 

320 

,  365 

V.  Wheaton 

389 

Atwood  V.  Gillett 

173 

Andrus  v.  Foster 

531 

Attwood  V.  Clark 

450 

Angel  i\  McLellan 

255,  259 

V.  Munnings 

41,  52 

Angerstcin  v.  Handson 

426 

V.  Small 

63 

Angier  v.  Angler 

301 

Att'y-Gcn.  v.  Alford 

103 

Anonymous                                   11,  50,  627 

V.  Ansted 

62 

Antram  c.  Chace 

376 

V.  Brooke 

422 

Applet )y  V.  Dodd 

317 

V.  Davy 

120 

Appleton  V.  Binks 

54,  515 

V.  Riddle 

43 

(.'.  Chase 

376 

V.  Sands 

100 

V.  Donaldson 

600 

V.  Siddon 

88 

Archard  v.  Hornor 

520,  527 

Aubin  V.  Bradley 

449 

Archer  v.  Hudson 

116 

Austen  v.  Wilward 

25 

Ardeu  v.  Pullen 

422,  423 

Austin  V.  Boyd 

206 

V.  Tucker 

23 

r.  Bvirns 

208 

Ai-ding  f.  Lomax 

522 

V.  Charlestown  Female  Scmt 

Argali  V.  Smith 

186 

nary 

* 

"276 

INDEX   TO   CASES   CITED. 


XXXI 


Austin  V.  Hall 

22 

Ball  0.  Dunster\'ille 

94 

V.  The  M.,  S.,  &  L. 

Kailway 

V.  Newton 

399 

Co.                  707, 

715,  716, 

718 

Ballard  v.  Child 

200 

Auwortli  r.  Johnson 

425 

Ballon  V.  Talbot 

58 

Averline  r.  VVhisson 

96 

Balmain  v.  Shore 

127, 

173 

Avcrill  V.  Hedfj:e 

407 

Bamford  v.  lies 

504 

V.  Loucks 

128 

V.  Shuttleworth 

67 

Avery  v.  Cheslyn 

432 

Bancroft  v.  Dumas 

382 

V.  Lauve 

124 

v.  Hall 

229 

V.  Stewart 

235 

Bancroft's  Case 

676 

Awde  V.  Dixon 

212 

Bandy  v.  Cartwriprht 

422 

Ayer  v.  Bartlctt 

449 

Bannor  Bank  v.  Treat 

12 

V.  Ciiase 

535 

Banjrs  v.  Strong 

513 

i".  Hutcliins 

215, 

217 

Bank  v.  Myers 

230 

Avers  V.  Hewitt 

274 

Bank  of  Australasia  v.  Bank  of 

Au- 

Ayliffe  V.  Arelidalc 

261 

stralia 

381 

V.  Tracy 

555 

Bank  of  Cape  Fear  r.  Seawell 

235 

Ayraar  v.  Ashtor 

645 

Bank  of  Catskill  v.  Messenger 

24 

V.  fcjlieldon 

231 

Bank  of  Chenango  i'.  Osgood 
V.  Root 

24 
163 

B. 

Bank    of    Columbia    v.    Patter 

<on's 

Babb  V.  Clemson 

442 

Adm'r                                      94, 

118, 

540 

Babcock  v.  Herbert 

645 

Bank  of  Commerce  v.  Union  Bank 

220 

V.  Stone 

161 

Bank  of  Louisiana  v.  Tournillon 

234 

V.  Wilson 

376 

Bank  of  jNIetropolis  v.  Guttschlit 

k 

47 

Bach  V.  Owen 

445, 

450 

Bank  of  ISIontgomery  v.  Walker 

210 

Bachelder  i:  Fiskc 

3 

,33 

Bank  of  Kochester  r.  Jones 

84 

Baeluirst  v.  Clinckard 

176 

Bank  of  Salina  v.  Babcock 

217 

Baekhouse  v.  Sneed 

636 

Bank  of  Sanduskv  v.  Scoville 

217 

Bacon  v.  Brown 

463 

Bank  of  St.  Albans  v.  F.  &  M.  Bank 

220 

t'.  Dyer 

227 

Bank  of  U.  S.  v.  Binncy 

158 

V.  Sondley 

53 

V.  Carneal 

221 

Bacot  V.  rarnell 

610 

V.  Dandridge 

118 

Baddeley  v.  Mortlock 

548 

549 

r.  Davis              64,  66 

234 

Badpcr  v.  Phinney 

266 

268 

V.  Leathers 

238 

Badlam  v.  Tucker 

601 

V.  Lyman 

53 

Badnall  v.  Samuel 

236 

Bank  of  Utica  v.  Bender 

233 

Ba},dehole  v.  Walters 

473 

V.  McKinstcr 

586 

Baikie  v.  Chandless 

98 

V.  Smith 

228 

Bailey  r.  Adams 

511 

513 

Banks  v.  Mitchell 

141 

V.  Bamberger 

268 

V.  Walker 

324 

V.  Bidwell 

206 

V.  White 

423 

V.  Freeman 

496 

Bannes  i\  Cole 

701 

V.  JMojrg 

539, 

540 

Banorgec  r.  Hovey 

42,  94 

V.  Porter 

235 

Barber  r.  Fox 

107 

367 

V.  Quint 

681 

V.  Gingell 

44 

Bailevvillc  r.  Lowell 

370 

V.  Hartford  Bank 

176 

Baillie  r.  Kcll 

526 

f.r  }i(irtfi 

235 

Bainbrid;,'e  v.  Firmston 

373 

Barclay  v.  Bailey 

2£2 

V.  Wade 

497 

V.  Lucas                    506, 

507 

508 

Baird  v.  Matliews 

465 

Barden  v.  Keverberg 

306 

Baker  v.  Adams 

433 

Bardwcll  v.  Lydall 

496 

r.  Barney 

302 

v.  I'erry 

174 

180 

V.  Corey 

540 

Barger  v.  Collins 

195 

r.  .Tacoi) 

367 

Baring  v.  Clark 

238 

V.  Unas 

581 

r.  Corie 

84 

V.  Keen 

248 

371 

V.  Lyman 

141 

r.  White 

556 

Barker  v.  Braham 

47 

I'.  Woodruff 

614 

r.  Clarke 

233 

Balch  V.  Sniitii 

197 

V.  Goodair 

173 

180 

Baldey  r.  Parker 

417 

444 

V.  Harrison 

414 

Bald}'  r.  Straton 

552 

,553 

V.  Mar.  Ins.  Co. 

7."i 

Balfe  V.  West 

581 

586 

V.  Parker 

507 

oOS 

xxxn 


INDEX   TO   CASES    CITED. 


Barker  ?;.  RiL-hardson 

22, 

162 

Baum  V.  Stevens 

464 

V.  Koherts 

615 

Baviufiton  r  Clarke 

263 

Barklie  i'.  tScott 

125, 

164 

Baxendale  v.  Hart 

719 

Barksdale  v.  Brown 

51 

Baxter  v.  Baxter                    518 

519,  567 

Barlow  v.  Bishop 

212, 

293 

V.  Earl  of  Portsmouth 

311,  312 

V.  Oi'can  Ins.  Co. 

364 

V.  Little 

215 

V.  Planters'  Bank 

235 

I'.  Nurse 

518 

V.  Waiiiwri<;ht 

429 

V.  Wales 

363 

Barnard  c.  Bridycnian 

67 

Bay  i\  Church 

238 

V.  Eaton 

454, 

455 

I'.  Cook 

58,  106 

V.  Yates 

467 

V.  Coddington 

212,  217 

Barnehurst  v.  Cabbot 

368 

V.  Gunn 

242 

Barnes  i'.  Hedley 

358 

359 

Bayard  v.  Lathy 

222 

V.  llolconib 

453 

V.  Shunk 

221 

V.  jMarshall 

680 

Baylcy  v.  Culverwell 

441 

r.  Terine 

377,  378 

379 

V.  Gouldsmith 

450 

Barnett  v.  Goinos 

306  n 

V.  Lawrence 

425 

V.  Lambert 

50 

V.  Rimraell 

518 

V.  Stanton 

470 

Bayliffe  v.  Butterworth 

50,  69 

Barney  v.  Brown 

443 

Baylie  v.  Clare 

322 

V.  Currier 

163 

Baylis  v.  Dinely       243,  244, 

261,  269, 

V.  I'rentiss 

719 

273 

V.  Saunders 

103 

11.  Usher 

675 

V.  Smith 

173 

Baylor  v.  Smithers 

443 

Baron  v.  Husband 

191 

Bayly  v.  Garford 

23 

Barouj^h  v.  White 

217 

V.  Schofield 

477 

Ban-  V.  Hill 

357 

Baynham  i\  Guy's  Hospital 

422 

V.  jMarsh 

233 

Baynon  v.  Batley 

301 

V.  M}ers 

447 

Beach  v.  Hotchkiss 

140 

Barratt  v.  Allen 

235 

V.  Olmstead 

463,  469 

Barrett  v.  Buxton 

311 

V.  State  Bank 

161,  222 

V.  Goddard 

441 

485 

Bcale  V.  Sanders 

426 

V.  Hall 

466 

Beall  V.  Joseph 

239 

i\  Pritchard 

449 

Beals  V.  Peck 

235 

V.  Swan 

142 

158 

Beat's  Adm'r  v.  Alexander 

235 

V.  Union  M.  F.  Ins 

Co. 

195 

Bean  v.  Burbank 

355,  440 

BaiTOW  V.  Paxton 

453 

594 

V.  Green 

713,  719 

Ban-y's  Case 

325 

V.  Herrick 

462 

Barstow  v.  Hiriart 

235 

V.  Simpson 

198,  447 

Bartholomew  v.  Jackson 

372, 

531, 

V.  Sturtevant 

643,  657 

541 

581 

Beard  v.  Kirk 

59 

Bartlett  v.  Jones 

13G 

V.  Webb 

306 

V.  Pearson 

196 

Bcardeslcy  v.  Baldwin 

208 

V.  Pentland 

69 

Beardslcy  v.  Richardson 

587 

V.  Vinor 

382 

Bears  v.  Ambler 

425 

V.  Williams 

443 

Beattie  v.  Robin 

443 

V.  Wyman 

318 

Beatty  v.  Gilmore 

702 

Barton  v.  Hanson 

148 

Beaufort  v.  Neeld 

41 

V.  Wolliford 

639 

Beavan  i\  Delahay 

430 

Barti-am  v.  Farebrothcr 

490 

Beck  r.  Evans 

711,  714 

Basliore  r.  Whistler 

457 

V.  Rebow 

432,  433 

Bass  V.  Clive 

220 

V.  Robley 

218 

Basset  V.  CoUis 

474 

Beckham  v.  Drake                 7,  48,  53, 110 

Bastow  V.  Bennett 

508 

Bcckley  v.  Munson 

34 

Bate  V.  Burr 

53 

Beckman  i'.  Sliouse       606,  643 

707,719, 

Bates  V.  Cort 

374 

382 

720 

V.  Uelavan 

417 

Beckwith  v.  Cheever 

404,  407 

V.  Stanton 

621,678 

679 

Beddoe's  Ex'r  v.  Wadsworth 

110 

V.  Watson 

361 

Bebee  v.  Dudley 

509,  515 

Batson  v.  Donovan       677, 

711,  714, 

719, 

Becl)ee  v.  Robert 

53    467 
132^166 

720 

Beeeham  r.  Dodd 

Batty  V.  McCundie 

146 

Beecker  v.  Bcecker 

108,  191 

Baudier,  ex  parte 

180 

Beek  v.  Robley 

214 

INDEX 

rO   CASES   CITED. 

xxxni 

Beeler  v.  Young 

245,  246, 

261 

BcroUes  r.  Ramsay 

246 

Beeraan  v.  Buck 

264 

Berry  v.  Robinson 

231 

Beer  i\  Beer 

23 

V.  Scott 

540 

Beeston  v.  Collyer 

578 

Bertrand  v.  Barkman 

217 

Beirne  v.  Dord 

468 

Besford  v.  Saunders       270,  271, 

308, 

309 

Belcher  v.  Mcintosh 

425 

Best  V.  Barber 

308 

Bel  don  v.  Campbell 

67 

V.  Givens 

270 

Belknap  v.  Wendell^ 

133 

V.  Jolly 

379 

Bell  V.  Bruen 

495 

V.  Osltome 

474 

V.  Chaplain 

20 

V.  Stow 

414 

V.  CunninghanQ 

44,  74 

Betsey  v.  Rhoda 

317 

V.  Francis 

122 

Betts'v.  Gibbins                         37 

,  69, 

483 

V.  Hagerstown  Bank 

2.34 

Bevan  v.  Lewis 

157, 

159 

V.  Locke 

131 

Bevans  v.  Sullivan 

139 

V.  Martin 

506 

Beverley's  case 

310 

V.  Moss                    477 

,  478,  482 

487 

Beverley  v.  Beverley 

555 

V.  Newman 

180 

V.  The  Lincoln  Gas  Light 

V.  Phynn 

127 

and  Coke  Co. 

118, 

450 

V.  Quin 

.382 

Beverleys  ik  Holmes 

355 

V.  Speight 

111 

Bexweli  v.  Christie 

420 

r.  Welch 

497 

Bianchi  v.  Nash 

4.50 

Bellairs  v.  Ehsworth 

506 

Bickerton  v.  Bun-ell 

55 

Bellows  V.  Lovell 

509, 

511 

Bickford  r.  Gibbs 

497 

514 

Belton  I'.  Hodges 

262 

Bidden  i-.  Dowse 

374 

376 

Belworth  r.  Hassell 

452 

Biddlecomb  v.  Bond 

477 

Bench  v.  Merrick 

549 

Biddlup  V.  Poole 

429 

V.  Sheldon 

462 

Bigelow  V.  Benton 

494 

Bend  ?'.  Hoyt 

67 

V.  Davis 

391 

Benden  v.  Manning 

585 

V.  Dennison 

44,  47 

Benedict  v.  Davis 

151 

V.  Gran  n  is 

270 

271 

V.  Morse 

433 

V.  Heaton 

681 

r.  Smith 

46 

V.  Huntley 

449 

Benham  v.  Bishop 

269 

270 

V.  Kinney 

273 

Benjamin  v.  Benjamin 

288 

V.  Wilson 

193 

197 

v.  Tillman 

211 

Bilbie  v.  Lumley 

363 

Benners  v.  Howard 

445 

Biles  V.  Holmes 

605 

Bonnet  v.  Mel  lor 

627 

Billings  V.  Billings 

567 

V.  Paine 

364 

365 

Bingham  v.  Rogers                707 

710 

722 

Bennett  v.  Dutton 

696 

Bingham  r.  Sessions 

320 

V.  Davis 

243 

V.  Maxcy 

457 

V.  Filvaw 

688 

689 

Birch  V.  Earl  of  Liveq)Ool 

529 

V.  P.'&  0.  Steanr 

boat  Co. 

696, 

V.  Sharland 

308 

698 

Bird  V.  Astcock 

676 

V.  Sims 

449 

V.  Blosse 

555 

V.  Stickncy 

163 

V.  Boulter 

97 

V.  Womack 

423 

V.  Brown                            45,  47 

,478 

V.  Woolfolk 

139 

V.  Gammon 

188 

,  191 

ex  parte 

75 

V.  Jones 

295 

Benson  ?•.  Remington 

252 

,  257 

r.  Le  Blanc 

233 

Bent  c.  Hartshorn 

508 

Birdscye  r.  Ray 

178 

V.  Manning 

245 

,  246 

Birgc  V.  Gardener 

701 

V.  Puller 

444 

Birkenhead,  Lancashire  &  ChesI 

ire 

Bently  v.  Griffin 

289 

Railway  i-.  Pilcher 

281 

282 

Benton  i .  Chamberlain 

143 

Birkctt  V.  Willan 

711 

Benyon  v.  Ncttkfold 

380 

Birkley  v.  Presgravo 

35 

Berard  v.  Berard 

529 

Bisel  J.  Hol)bs 

152 

Bergen  i'.  Bennett 

61 

Bishop  V.  Bishop 

431 

Berkeley  v.  Watling 

239 

,487 

V.  Breckles 

171 

Berkley  v.  Hardy 

94 

r.  Elliott 

431 

Berkshire  Bank  v.  Jones 

233 

r.  Montague 

47 

Berkshire  Woollen  Co.  v 

.  Proctor 

627, 

V.  Shcplierd 

523 

628 

,  629 

V.  Williamson 

623 

Bernard  v.  Torrance 

145 

V.  Wraith 

422 

XXXIV 


INDEX   TO    CASES    CITED. 


Bishop  of  Chester  v.  John  Frechind     381 

Bisscll  V.  Hopkins  443,  454 

Bixby  u.  Whitney  447 

Bixlcr  V.  Ream  368 

Black  i^.  Bush  174 

V.  Webb  439 

Blackburn  r.  Mackey  248,  250 

Blackett  v.  Weir  32 

Blackhurst  v.  Clinkard  175 

Blackmore  v.  Thill  345 

Blackstone  Bank  v.  Hill  513 

Blades  v.  Free  294,  295,  304,  305 

Blague  V.  Gold  421 

Blair  v.  Bank  of  Tenn.  227 

Blake  v.  Buchannan  196 

Blake  v.  Cole  370 

V.  Ferris  91 

V.  Howe  428 

V.  Lanj'on  532 

V.  Parlin  496 

V.  Peck  367 

Blake,  Admin'r,  v.  Midland  Railway 

Co.  700 

Blanchai-d  v.  Coolidge  136 

V.  Dixon  333 

V.  Isaacs  652 

Bland  v.  Negro  Dowling,  336,  345 

Blane  v.  Proudfit  44 

Bleeker  v.  Hyde  493,  501 

Blennerhasset  v.  Monsell  285 

Bligh  V.  Brent  280 

Blight  V.  Page  383 

Blin  V.  Pierce  188,  196 

Blood  V.  Enos  526 

V.  Goodrich  47,  95 

V.  Palmer  450 

Bloss  V.  Kittridge  463 

Blot  V.  Boiceau  58 

Blount  V.  Hawkins  499 

Blowser  v.  Sturtevant  294,  295,  297 

Bloxam  v.  Sanders  441,  447,  479 

Bluett  V.  Osborne  470 

Blunt  V.  Boyd  188,  191 

V.  Me'lcher  535 

Blydenburg  v.  Welsh  462 

Blythe  v.  Dennett  434 

Boardman  v.  Gore  161 

V.  Paige  34,  35,  36 

Bobo  V.  Hansen  270 

Bodenham  v.  Bennett  711,  714,  719 

V.  Purchas  506 

Boehm  v.  Sterling  218 

Boehme  v.  Carr  235 

Boggs  V.  Curtin  31,  35 

Bohtlingk  r.  Inglis  485 

Bolan  r.  Williamson  623 

Boliu  V.  Hutfnagle  485 

Bolton  V.  Hillersden  46 

V.  Lee  12 

V.  Prentice  290,  293 

V.  Puller  212 

Bomar  v.  Maxwell  673,  720,  721 

Bonar  v.  Macdonald  505 


Bonar  v.  Mitchell 

238 

Bonbonus,  ex  parte 

157 

Bond  V.  Farnham 

226 

V.  Gibson 

159, 

160, 

161 

V.  Hays 

140 

-    V.  Pittard 

141 

Bonham  v.  Badgley 

564 

Bonner  v.  Wellborn 

624 

Bonney  v.  Seeley 

34 

Boodj'  V.  McKenney 

269, 

272, 

273 

Bool  V.  Mix                    243, 

269, 

272 

280 

Boorman  v.  Jenkins 

467 

472 

Booth  V.  Hodgson 

37 

V.  Parks 

173 

V.  Terrell 

591 

Boraston  v.  Green 

430 

Borden  v.  Houston 

503 

Borradaile  v.  Hunter 

625 

Borrekins  v.  Bevan 

465 

468 

474 

Borthwick  v.  Carruthers 

242 

Bosanquet  v.  Wray 

141 

Boson  V.  Sandford 

646 

647 

Boss  V.  Litton 

700 

Bostick  V.  Winton 

457 

Boston  Bank  v.  Chamberlin 

273 

Boston  &  Maine  R.  R.  v.  Bartlett        403 

Bostwick  V.  Dodge  217 

Botiller  v.  Newport  279 

Bott  V.  McCoy  51 

Bouchell  V.  Clary  261 

Boucher  v.  Lawson  646 

Boultbee  v.  Stubbs  237 

Boulter  v.  Peplow  32,  35 

Boulton  V.  Welsh  '      235 

Bound  V.  Lathrop  163 

Bourne  v.  Diggles  74 

V.  Freeth  122 

V.  IMason  389 

Bovil  r.  Hammond  139,  140 

Bowdell  V.  Parsons  445 

Bowen  v.  Burke  441 

V.  Newell  230 

Bower  v.  Major  433 

V.  Swadlin  162 

Bowerbank  v.  Monteiro  108 

Bowes  V.  Howe  224,  233 

V.  Tibbets  531,  535 

Bowie  V.  Napier  80 

Bowles  t'.  Round  418 

Bowman  v.  Bailey  139 

IK  Ilening  443 

V.  Hilton  681 

V.  TeaU  637,  675 

Bowyer  V.  Blight  417 

Bovce  V.  Anderson  333,  691,  694 

V.  Edwards  222 

V.  Ewart  509 

Boyd  V.  Anderson  3ti^ 

V.  Bopst  4d8 

V.  Cleaveland  231 

V.  Croydon  117 

V.  Plumb  162 

V.  Vanderkemp  64 


INDEX   TO    CASES   CITED. 


XXXV 


Boyden  v.  Boyilen 

273, 

276 

Brewster  v.  Hammett 

174, 

175 

Boyers  v.  Elliott 

126 

Brice  v.  Stokes 

28 

Boyle  V.  McLaun-hlin 

660, 

674 

Bricheno  v.  Thorp 

98 

Boynton  v.  Dyer 

103, 

104 

Bridge  V.  Hubbard 

381 

V.  Kellogg 

543, 

549 

V.  Niagara  Ins.  Co. 

391 

Boyson  v.  Coles 

80 

V.   The   Grand  Junction 

R. 

Bracegirdle  v.  Heald 

529 

Co. 

702 

Bracey  v.  Carter 

98 

Bridges  V.  Berry 

224 

Brackett  v.  Blake 

194 

V.  Hitchcock 

422 

V.  Billiard 

455 

Bridgeman's  Case 

432 

V.  Hoyt 

383 

Bridgewater  Academy  v.  Gilbert 

377 

Bracken  v.  Miller 

65 

Brien  v.  Williamson 

345 

Bradljume  v.  Botfield 

17,  U 

,  26 

Briggs  V.  Georgia 

539 

V.  Bradburne 

379 

Brighara  v.  Peters 

44 

Bradbury  v.  "Wright 

423 

Bright  V.  Carpenter 

206 

Bradford  v.  Bush 

52, 

464 

V.  McKnight 

502 

V.  ^[anley 

467, 

472 

Brind  v.  Dale                 605, 

633, 

642, 

650 

V.  Tappan 

439 

Bringloe  v.  Morrice 

.591 

Bradish  v.  Henderson 

588 

Brinley  v.  Mann 

119 

Bradlee  v.  Boston  Glass  Co. 

48 

Brisban  v.  Boyd 

407 

Bradley  v.  Gary 

493 

Bristol  V.  Warner 

211 

V.  Holdsworth 

280 

Britton  v.  Bishop 

215 

V.  Pratt 

261 

V.  Turner 

524 

526 

V.  Richardson 

79 

Brix  I'.  Braham 

308 

V.  "Waterhouse 

711 

Broad  i-.  Thomas 

84 

V.  White 

136 

Broadwater  v.  Blot 

618 

Bradshaw  v.  Bennett 

416 

Broadwell  v.  Gctraan 

529 

Bradstreet  v.  Supervisors  of  Oneida 

Brockelbank  i\  Su^nic 

43 

County 

324 

Brockway  v.  Burnap 

136 

Brady  v.  Giles 

92 

Broennen  burgh  v.  Haycock 

474 

V.  Haines 

443 

Brothers  v.  Brothers 

75 

V.  Mayor 

539 

Bromage  v.  Lloyd 

205 

212 

Bragg  V.  Fessenden 

95 

Bromley  v.  Holland 

58 

Braithwaite  v.  Scofield 

122 

Brooke  v.  Enderby 

143 

V.  Skinner 

107 

V.  Evans 

148, 

153 

,  157 

Bramah  v.  Roberts 

122 

217 

V.  Gaily 

271 

Bramhall  r.  Beckett 

215 

217 

V.  Pickwick 

711, 

719 

,  721 

Branch  v.  Ewington 

535 

V.  Washington 

142 

Branch  Bank  u.  Boykin 

309 

Brooker  v.  Scott 

246 

Brand  v.  Boulcott 

20,  31,  35 

Brooks  ;;.  Ball 

370 

Brandon  v.  Hubbard 

31 

V.  Mitchell 

217 

V.  Old 

311 

V.  Minturn 

49 

V.  Planters'  Bank 

336 

.338 

V.  Powers 

443 

Brandt  v.  Bowlby 

239 

V.  Stuart 

24 

Bray  r.  Hadwen 

234 

Broom  v.  Broom 

126 

V.  Mayne 

602 

Broome,  ex  parte 

173 

Brealey  v.  Andrew 

369 

Broughton  v.  Broughton 

75 

V.  Collins 

414 

Brower  v.  Lewis 

468 

Breckenridge's  Heirs  r.  Ormsb] 

•    244 

,  276 

Brown  v.  Adams 

355 

Breckinridge  v.  Shricvc 

1.58 

V.  Aldeu 

285 

Brecknock  Co.  v.  Pritchard 

425 

,  661 

V.  Allen 

25 

Bredin  v.  Dubarrj* 

46 

V.  Bellows 

439 

Breed  v.  Hillhousc 

225 

,.574 

V.  Bement 

453 

i\  Judd 

261 

V.  Chase 

116 

Breinig  v.  Meitzlcr 

294 

V.  Collier 

308 

Bremner  v.  Williams 

698 

,  699 

V.  Compton 

332 

Brent  v.  Green 

403 

I'.  Crump 

396 

42.^ 

,  426 

Brenton  v.  DavLs 

469 

V.  Davics 

213 

,214 

,  215 

Breverton's  Case 

193 

V.  Denison 

619 

Brewer  v.  Dyer 

391 

V.  De  Winton 

206 

,  207 

V.  Salisbur}' 

441 

,  443 

V.  Doyle 

12 

V.  Sparrow 

47 

V.  Durham 

264 

Brewster  v.  Baker 

449 

V.  Eastern  R.  R.  Co 

719 

XXXVl 


INDEX   TO    CASES    CITED. 


Brown  v.  Ed<<;ington 

469 

Buckmastcr  v.  Smith 

449 

V.  Elkingtou 

474 

Buckmyr  v.  Darnell 

494 

V.  Furfcuson 

234,  236,  238 

Bucknam  v.  Barnum 

133, 

152 

I'.  Gibbins 

148 

V.  Goddard 

458 

V.  Joddrell 

311 

Buckner  v.  Finley 

238 

V.  Langford 

380 

V.  Smyth 

286 

V.  Lasselle 

306  n 

Budd  V.  Fairmaner 

463 

i:  Leonard 

142 

Buffington  v.  Curtis 

239 

V.  Litton 

77,  173 

V.  Quantin 

475 

V.  Lull 

316 

Buffam  V.  Merry 

614 

i\  Maine  Bank 

196 

Buford  V.  McNeely 

172 

V.  Marsh 

25 

Bulkley  v.  Dayton 

22 

V.  Maxwell 

264,  528,  701 

r.  Derby  Fishing  Co. 

120 

V.  McCune 

264,  265 

Bull  V.  Ilobison 

445 

'v.  McGran 

58,  59,  80 

Bullard  v.  Young 

673 

V.  Mott 

216 

Buller  V.  Fisher 

648 

V.  Fatten 

295,  297 

V.  Harrison 

67 

V.  Sloan 

364 

Bullet  V.  Bank  of  Penn. 

241 

V.  Tapscott 

139 

Bullock  V.  Atheam 

208 

V.  United  States 

324 

V.  Babcock 

264 

V.  Wooton 

12 

V.  Dommit 

425 

in  re- 

230 

Bunker  v.  Athearn 

209 

Browne  V.  Lee 

32,  35 

V.  Miles 

75 

Browuell  v.  Flagler 

701 

Bunn  V.  Guy 

357 

V.  Hawkins 

595,  600 

Bunney  v.  Payntz 

420 

483 

Browning  v.  Reane 

563 

Burbridge  v.  Manners 

233 

Broxham  v.  Wagstaffe 

520,  527 

Burckle  v.  Eckart 

136 

Bruce  v.  Bruce 

219 

Burden  v.  Ferrers 

12 

V.  Lytlo 

226,  233 

Burdett  v.  Withers 

425 

I'.  Foarson 

399 

Burgan  r.  Lyell 

145 

Bruen  v.  Manjuand 

22,  162 

Burgess  v.  Atkins 

177 

Brumby  v.  Smith 

611 

V.  Clements 

626 

627 

Brummel  r.  Stockton 

443 

V.  Gray 

&2 

Brush  V.  Scribncr 

217 

Burghart  v.  Angerstein          245 

246 

262 

Brutton  v.  Burton 

94 

V.  Gardner 

97 

,  539 

Bryan  v.  Jackson 

250 

V.  Hall 

245 

V.  Lewis 

438 

Burham  v.  Webster 

215 

V.  Weatherhead 

421 

Burk  V.  Baxter 

433 

Bryant  v.  Craig 

103 

Burke  v.  Cruger 

513 

V.  Eastman 

206 

V.  McKay 

238 

V.  Flight 

538 

V.  Negro  Joe 

330 

V.  Goodnow 

370,  378 

V.  AVinkle 

306 

V.  Jackson 

311 

Burks  V.  Shain 

553 

V.  Kelton 

443 

Burley  v.  Russell 

264 

Bryce  v.  Brooks 

84 

Burlingame  v.  Burlingame 

258 

Bryden  v.  Taylor 

237 

Bumester  v.  Barrow 

233 

Bryer  v.  Weston 

152 

Burn  V.  Morris 

47 

Buchan  r.  Sumner 

126,  129 

Burnby  v.  Bollett 

471 

Buchanan  r.  Curry 

168 

Burneil  v.  Minot 

35 

V.  Marshall 

233 

Burness  v.  Pennell                   43, 

122 

146 

Buck  V.  Albee 

381 

Burnet  v.  Bisco 

355 

V.  Buck 

85 

Burnham  v.  Tucker 

215 

V.  McCaughtry 

417 

V.  Wood 

215 

V.  Winn 

126 

Burns  v.  Fletcher 

470 

Buckingham  r.  Burgess 

151 

Burnside  v.  Merrick 

128 

,  129 

Buckland  v.  Buttcrfield 

432 

Buron  v.  Denman 

47 

433 

Buckley  V.  Barber 

112,  173 

Burrall  v.  Acker 

177 

V.  Buckley 

126 

V.  Jacob 

441 

V.  Fiiriii.ss 

483,  485,  490 

Burrell  v.  Jones 

95 

515 

ex  pdHe 

103 

V.  North 

655 

Bucklin  v.  Thompson 

454 

Burrough  v.  Moss 

215 

V.  Ward 

195 

Burroughes  v.  Clarke 

538 

Buckman  v.  Levi 

446,  654 

Burroughs  v.  Hanegan 

226 

INDEX   TO   CASES   CITED. 


XXXVll 


Burrou 

rhs  r.  Richmond 

311 

Burson 

V.  Kincaid 

162 

Burton 

ex  parte 

308 

V.  Great  Northern  li 

y.  Co. 

374 

V.  Griffiths  • 

106 

V.  Hutches 

578 

V.  Issit 

163 

V.  Philadelphia, 

&c., 

Railroad  117 

V.  Wilkinson 

621 

Burwell  v.  Maudeville's 

Ex 

r        172 

173 

Bush  V. 

Barnard 

309 

V. 

Davies 

441 

V. 

Miller 

607 

V. 

Steinman 

93 

Busk  V 

Davis 

441 

Busard 

V.  Levering 

230,  233 

235 

Buson 

:.  Doughertv 

449 

Butcher  i-.  Dresser' 

173 

V.  London  &  Southwestern 

Ry.  Co.  665 

Butler  V.  Basing  655 

V.  Brcck  246,  286 

V.  Kraig  329,  332 


V.  Heane 

719 

V.  Tufts 

458 

V.  Wigge 
Butnam  v.  Abbot 

381 
538 

Butt  V.  Great  Western  R.  R. 

Co.          605 

Butterfield  v.  Fon-ester 

702 

I'.  Haitshom 

189,  191 

Buttcrwortli  v.  McKinley 

441 

Buxton  V.  Jones 

61,  229 

Bvnuni  i\  Bostick 

326,  336 

Byrd  v.  Boyd 
V.  Fox 

520,  521 
139 

Byers  v.  Dobey 

V.  McClanahan 

11 
37,95 

Byrne  c.  Doughty 

46 

Byrne  v.  Fitzhugh 

13,  20,  24 

By  water  v.  Richardson 

472 

Cabell  V.  Vaughau 
Cabellaro  v.  Slater 
Cabot  V.  Haskins 
Cadman  v.  Horner 
Cadogan  v.  Kennctt 
Cadv  V.  Shepherd 
Cahill  V.  Bigalow 
Caiiitl"  V.  Dunvers 
Cain  V.  Spann 
Caine's  Case 
Caines  r.  Smith 
Cairncs  r.  Blccckcr 
Caldecott  v.  Smith 
Calder  r.  Rutherford 
Caldwell  v.  Cassidy 
r.  Drake 
r.  Murphy 
v.  Siiepiicrd 
Calhoun  v.  Vechio 

VOL.  I. 


12 

375 

363,  391 

414 

442 

94 
499 
618 
215 
235 
548 

47 
430 

29 
227 
305 
690 
539 
462 


Call  V.  Ward 
Callagan  r.  Hallett 
Calleu  V.  Thompson 
Callo  V.  Brounckcr 
Callow  V.  Lawrence 
Calvert  v.  Gordon 
Calvin's  Case 

Caiye's  Case  627 

Cambridge  Ins.  for  Savings  v.  Little- 
field 
Camden  Sc  Amboy  Railroad,  &c.,  Co. 

V.  Belknap 
Camden  &  Amboy  Railroad  Co.  v. 
Baldauf  707,  710,  718 

V.  Burke 
Cameron  v.  Baker 
Camidgc  v.  AUenby 
Cammack  v.  Johnson 
Cammer  v.  Harrison 
Camp  V.  Camp 
V.  Grant 
V.  Scott 
Campanari  v.  Woodbum 
Campbell  v.  Baldwin 

V.  Butler 

V.  Campbell 

V.  Hall 

V.  Knapp 

V.  Leach 

V.  Lewis 

V.  Mesier 

V.  Morse 

V.  Stakes 
Canal  Bank  v.  Bank  of  Albany    219 
Canal  Fund  !;.  Peiry 
Cantield  v.  Hard 

V.  Vaughan 
Cannon  v.  Alsbury  276 

V.  Mitchell 
Canovcr  v.  Cooper 
Cany  v.  Patton 
Cape  Fear  Bank  v.  Stincmetz 
Capel  V.  Thornton 
Capen  v.  Barrows 
Garden  v.  General  CcmctcrA-  Co. 
Carle  )-.  Hall 
Carleton  v.  Leighton 
Carlcy  v.  Vance 

V.  Wilkins 
Carlton  v.  Bailey 
Carnegie  v.  Morrison 
Camociian  v.  Gould 
Carpenter  v.  American  Ins.  Co 

V.  Dodge 


252 
363 
442 
521 
218 
517 
324 
631 

308 

653 

719 

691 

260 

218,  224,  225 

176,  178 

230 

455 

180 

218 

61 

306  n 

206 

342 

67 

497 

71 

199,  201 

33 

637 

264 

220 

378 

172 

493 

376 

416 

258 

295,  302 

238 

420 

26 

123 

92 

438 

227 

464 

381 

222,  390,  391 

467 

64 

358 

r.  Thompson  428 

Carpnc  v.  L.  &  B.  Railway  Co.  695,  699 

Carr  f.  Clough 

r.  Ellison 

V.  Jackson 

V.  King 

V.  Roberts 

I'.  The  L. 

*    pany 


243,  269 

422 

55 

304 

110 

&  Y.  Railway  Com- 

707.  715,  718 


XXXVlll 


INDEX   TO   CASES   CITED. 


Carrington  ?•.  Cantillon  163 

Carrol  v.  Blencow  306 
Canoll  V.  Now  York  &  N.  H.  R.  R. 

Co.  702 
V.  Weld  206 
Carrnthers  v.  West                         215,  216 
Carson  v.  Blazer  430 
Carter  v.  Burley                              233,  238 
V.  Burris  453 
V.  Carter  300 
V.  Rollard  256 
V.  Southall  163 
V.  Stennel  474 
V.  Toussaint  443 
V.  Walker  475 
V.  Whalley  143 
V.  United  Ins.  Co.  193 
Carthrae  v.  Brown  31 
Cartwright  v.  Cooke  373 
V.  Rowley  649 
Carwick  v.  Vickery  164 
Carville  v.  Crane  500 
Cary  v.  Curtis  67 
V.  Gruman  475 
V.  Matthews  117 
Casamajor  V.  Strode  417 
Casbornc  v.  Dutton  208 
Case  V.  Boughton  355 
V.  Hart  137 
V.  Mechanics'  Banking  Associa- 
tion 206 
V.  Winship  455 
Casey  v.  Brush  140 
Cash  V.  GiUes  475 
Cassel  V.  Dowes  222 
Cassiday  v.  McKenzie  61 
Casteel  v.  Casteel  306  n 
Castello  V.  Bank  of  Albany  602 
Castleman  v.  Holmes  506 
Caswell  I'.  Coare  475 
V.  Districh  137 
Catin  V.  D'Orgenoy  346 
Catlcy  r.  Wiiitringham  666 
Catlin  V.  Barnard  30 
V.  Bell                                69,  72,  84 
Caton  V.  Ruraney  645 
V.  Shaw  501 
Catskill  Bank  v.  Gray  133 
V.  Messenger  162 
Catt  V.  Howard  167 
Cattlin  V.  Hills  702 
Cave  V.  Coleman  464 
Cavode  v.  McKelvv  364 
Caudell  v.  Shaw    "  306 
Caul  r.  Gibson  379 
Caustcn  v.  Burke          "  139 
Cayle's  Case  626 
Cayuga  Bank  v.  Hunt  222 
Cayuga  County  Bank  v.  Warden         235 
Central  Bank  v.  Allen                   226,  230 
Chare  v.  Brooks  513 
Chadwick  v.  Madon  54 
Chadworth  i-.  Edwards  •76 


ChafFoe  v.  Jones 

33,  3£ 

,  36 

Chalmers  v.  Lanior 

2,  213, 

214 

Chamberlain  v.  Chandler 

697 

V.  Farr 

443 

V.  Williamson 

110, 

553 

Chambers  v.  Crawford 

469 

V.  Griffiths 

417 

V.  Minchin 

28 

Champion  v.  Bostick 

136, 

700 

Chancellor  v.  Wiggins  . 

458 

Chaiidelor  v.  Lopus 

463 

466 

Chandler  v.  Drew 

215 

V.  Belden 

239 

V.  Braiuard 

164 

V.  Fulton                477,  479, 

489 

Channel  v.  Fassitt 

131 

Chauoine  v.  Fowler 

235 

Chanter  v.  Hopkins 

470 

V.  Leese 

19,  26 

Chapel  V.  Hickes 

387 

388 

Chapin  v.  Lapham 

370 

Chaplin  v.  Hawes 

702 

Chapline  v.  Moore 

286 

Chapman  v.  Crane 

535 

V.  Keane 

235 

V.  Lemon 

306 

V.  Murch 

463 

464 

V.  Searle 

483 

V.  Speller 

457 

V.  Sutton 

509 

V.  Walton 

73 

Chappcl  V.  Marvin 

443 

Chappie  r.  Cooper 

245 

Chard  v.  Fox 

235 

Charles  v.  Marsden 

216 

Charlestown  r.  Hubbard 

393 

Charlton  v.  Lay 

386 

Charnley  v.  AV'instanley 

61 

Charter  v.  Trevelyan 

75 

Charters  v.  Bayntun 

246 

Chase  v.  Dwinal 

322 

V.  Garvin 

139 

,140 

V.  AVashburn 

64 

Chase's  Ex'r  i'.  Burkholder 

381 

V.  Washington  Ins.  Co.  635 
Chastain  v.  Bowman  333 

Chater  v.  Beckett  380 

Chedworth  v.  Edwards  76 

Cheek  v.  Roper  221 

Cheesman  v.  Excell  621 

Cheetham  v.  Hampson  608 

Chenowith  v.  Dickinson  618 

Cherry  v.  Homing  96,  529 

Chesapeake  &  Ohio  Canal  v.  Knapp    540 
Cheshire  v.  Barrett  268,  273 

Chester  Glass  Company  v.  Dewey        377 
Chcsterman  v.  Lamb  475 

Chestnut  Hill  Turnpike  v.  Ruttcr         118 
Che  vail  ior  v.  Straham  634,  637,  641 

Chevaillier  v.  Fatton  638 

Chew  V.  Gary  347 

Chick  V.  Fillslnirv  233 

Chickering  v.  Fowler  667,  668,  670 


INDEX   TO   CASES   CITED. 


XXXIX 


Chicopee  Bank  v.  Chapin 
Child  V.  Hardyman 

V.  Morley 
Childs  V.  Monins  102, 

Chiles  V.  Xelson 
Chilson  V.  Phillips 
Chippendale  v.  L.  &  Y.  Railway  Co. 
Chism  V.  Woods 
Chiswell  V.  Gray 
Cholmondclcy  v.  Clinton 
Chouteau  v.  Merry 

I'.  Steamboat 
Chouteaux  v.  Lcaeh 
Chorley  v.  Bolcott 

Christie  v.  Gn<>;gs  691,  695, 

Christy  v.  Douj,^Ias 

V.  Smith 
Chudlcigh's  Case 
Chumar  t\  Wood 

Church  v.  Barlow  216, 

V.  Brown 
V.  Clark 

V.  Imperial  Gas  Co. 
V.  Knox  176, 

V.  Landers 

V.  Mar.  Ins.  Co.  7.5, 

V.  Sparrow 
Churchill  r.  Rosehuck 
Chute  ('.  Pattcc 

Citizens'  Bank  v.  Nantucket  Steam- 
boat Co.  645,  650,  652, 
Citv  of  Buffiilo  u.  HoUoway 
Clajiett  V.  Sahiion  "  162, 
Glamorgan  v.  Lane                269,  272, 
Clancey  i-.  Kol)ertson 
Claridge  i:  Mackenzie 
Clark  V.  Barnwell          637,  638,  648, 

V.  Bigelow 

V.  Boyd  205, 

V.  Burdett 

V.  Bush 

V.  Clark 

V.  Dales 

V.  Dibble 

V.  Dignum 

V.  Dinsmore 

V.  Ely 

V.  Farmers  Man.  Co. 

V.  Faxton  643, 

V.  Foxcroft 

V.  Guardians  of  Cuckfield  Union 

V.  Houghara 

V.  King 

V.  Lyman  174, 

V.  Mauran 

V.  McDonald  333, 

V.  Morse 

V.  Needles 

V.  Reed 

V.  Remington 

V.  Russel 

I'.  Shee 

V.  Sigourney  205, 


217 

Clark  V.  Small 

355 

,496 

295 

V.  Smith 

540 

33 

V.  Spence 

606, 

622, 

722 

108 

V.  Swift 

110 

407 

Clark's  Ex'rs  v.  Van  Riemsdyk 

44 

257 

Clarke  r.  Courtney 

48 

714 

V.  Henty 

236 

458 

V.  Ilutchins 

446 

180 

V.  Leslie 

246 

98 

V.  Morey 

325 

306 

V.  Perrier 

69 

657 

V.  Tliompson 

195 

50 

Clarkson  i-.  De  Peyster 

103 

539 

V.  Hanway 

356 

698 

Clay  r.  Hamson 

479 

481 

539 

V.  Cothell 

215 

623 

V.  Crowe 

241 

100 

V.  Wood 

701 

702 

443 

ex  }Kirte 

180 

234 

Clayards  v.  Dethick 

702 

426 

Clayton  v.  Adams 

306 

221 

V.  Hunt 

719 

118 

r.  Kvnaston 

23 

177 

V.  Warden 

560, 

561 

562 

288 

Cleaves  v.  Stockwell 

73 

115 

Cleghom  v.  Ins.  Bank  of  Columbus 

180 

1.58 

Clement  v.  Clement 

191 

197 

702 

v.  Henley 

23 

504 

V.  Mattison 
V.  Reid 

293 

297 
414 

655 

V.  Repard 

215 

93 

Clements  v.  Smith's  Adm 

'rs 

475 

237 

V.  Williams 

249 

273 

Clerk  V.  Blackstock 

11 

520 

Cleveland  v.  Covington 

34 

429 

Cleveland  0.,  &  C.   R. 

R.    Co.   V. 

677 

Kearny 

528 

233 

Clifford  V.  Burton 

292 

212 

V.  Laton 

288, 

294, 

295 

508 

Clifton  V.  Phillips 

328 

333 

503 

Clincn  v.  Cooke 

43,  95 

558 

Clinton  V.  York 

258 

407 

Clapp  V.  Rogers 

144 

140 

Clodfelter  v.  Cox 

198 

71 

Clopper  V.  Union  Bank  of  Mary 

and 

216 

27 

Cloud  V.  Hamilton 

258 

217 

Clowes  I'.  Brooke 

246 

240 

V.  Clowes 

565 

710 

u.  Van  Antwerp 

115 

495 

Clutc  V.  Banow 

75 

118 

V.  Wiggins 

631 

632 

111 

Coates  r.  Stephens 

473 

208 

I'.  Wilson 

246 

177 

Coats  V.  Hollirook 

324 

482 

Cobb  V.  A!)l)ot 

700 

692 

V.  Becko 

73 

443 

V.  Page 

496 

6.54 

Cobban  v.  Downo 

652 

164 

Cobbett  ('.  Hudson 

288 

502 

Coiiden  v.  Bolton 

719 

368 

Cobham,  e.r  parte 

180 

240 

Coburn  v.  Pickering 

443 

212 

V.  Ware 

389 

xl 


INDEX  TO   CASES   CITED. 


Cochran  v.  Perry  171 

Cocke  V.  Bank  of  Tennessee  164 

Cockell  V.  Taylor  362 

Cocker  v.  Franklin  Hemp  &   Flax 

Man.  Co.  450 

Cockran  v.  Irlam  72,  84 

CodcUngton  v.  Davis  226,  233 

Coe  V.  Clay  422 

V.  Smith  522 

■Coffin  I'. Dunham  304 

V.  Jenkins  151,  318 

V.  Lnnt  433 

Coggs  V.  Bernard  372,  569,  571,  573, 

583,  584,  590,  593,  634,  637,  694 


Cohea  v.  Hunt 
Cohen  c.  Hume 
Colcock  V.  Ferguson 

V.  Goode 
Cole  V.  Cottingham 
V.  Davics 
V-  Goodwin 


V.  Jessup 
V.  Kerr 
V.  Pennoyer 
V.  Bobbins 
V.  Saxby 
V.  Turner 
V.  Wade 
Coleman  v.  Riches 

V.  Sherwin 
Coles  V.  Coles 
V.  Gurney 
V.  Trecothick 


Colgin  V.  Henley 
Collard  v.  Groom 
Collier 
cicty 
Collingwood  v.  Pace 
Collins  V.  Barrow 
V.  Blantem 
V.  Butler 
V.  Canty 
V.  Forl)cs 
V.  Godcfroy 
V.  Lemasters 
V.  Martin 
V.  Myers 
V.  Pellerin 
V.  Price 
V.  Prosser 
V.  Westbury 
V.  Woodruff 
Collman  v.  Collins 
CoUumer  r.  Foster 
Collycr  ('.  Fallon 
Colt  r.  IMcMcchen 
Colville  ('.  Besley 
Columbus  V.  Howard 
Coman  v.  State 
Combe's  Case 
Comegys  v.  Vasse 


222 

645 

243,  261 

458 

546,  547 

442 

673,  704,  706,  707, 

709,  710,  713 

237 

448 

244 

311 

270,  271,  309 

20 

101 

42,  652 

11 

127,  160 

163 

43,  75,  95,  362,  414, 

415 

366 

417 

Baptist   Educational    So- 

379 

324 

422,  471 


380 
229 
434 
615 
363 
12 
80,  206,  212 
455 
443 
527 

12,  162 
321 
610 
683 
140 
194 
637 
386 
608 
'  513 

71,  119 
195 


Comfort  ?;.  Duncan 

Commercial  Bank  v.  Colt 

V.  Cunningham 

V.  Hamer 

?'.  Kortright      50, 

V.  Martin 

V.  Nolan 

V.  Wilkins      174, 

of  Pa.    V.   Union 
Bank  of  N.  Y. 
Commissioners  v.  Perry 
Commonwealth  v.  Collins 
V.  Cushing 
V.  Gamble 
V.  Hantz 
V.  Harrison 
V.  Manley 

V.  Murray  257, 

V.  Power 

V.  Turner  326, 

Comp  V.  Henchman 
Comstock  V.  Farnum 

V.  Hutchinson 
V.  Ray  ford 
Comyns  v.  Boyer 
Conant  v.  Guesnard  '' 

V.  Raymond  535, 

V.  Seneca  County  Bank 
Cone  V.  Baldwin 
Conger  v.  King 
Congrcve  v.  Evetts 
Conkcy  v.  Hopkins 
Conn  V.  Coburn  246, 

V.  Wilson 
Conner  ?;.  Henderson 

V.  Coffin 
Connerat  v.  Goldsmith 
Connery  v.  Kendall  215, 

ConoUy  v.  Kettlewell 
Conroe  v.  Birdsall  261,  264, 

Conroy  v.  Wan-en 
Const  V.  Harris 
Constable  v.  Cloeberry 
Constantia,  Tlie 
Conwell  V.  Sandridge 
Cook  ('.  Bank  of  Louisiana 

V.  Bradley        8,  259,  355,  360, 


602 


V.  Champlain  Trans.  Co. 
V.  Darlin 
V.  Husted 
V.  Litchfield 
V.  Moseley 

V.  Newman  111, 

V.  Satterlee 
V.  Wotton 
Cooke  V.  Booth 

V.  Callaway 

V.  Clayworth 

V.  Colehan 

V.  Cooke 

V.  Eyre  148, 


430 
196 
216 
222 
118 
592 
375 
175, 
177 

71 
377 
306 
263 
263 
263 
263 
212 
263 
696 
334 

75 
196 
475 
443 
382 
345 
536 
199 
214 

75 
438 
497 
494 
553 
463 
431 
494 
218 
500 
274 
206 
168 

12 
477 
171 

47 
361, 
370 
701 
230 
530 
235 
463 
194 
208 

18 
422 
228 
311 
211 
343 
,  153 


INDEX   TO    CASES    CITED. 


xli 


Cooke  V.  French 
V.  Oxley 
Cooke's  Case 
Cookes  V.  Mascall 
Coolidge  V.  Brigham 
V.  Payson 
V.  Ruggles 
Coombs  V.  Emery 


235 
406 
432 
555 
458 
217,  222 
196 
382 


Coon  V.  Syracuse  &  Utica  E.  R.  528 

Cooper  V. 452 

V.  Martin  257,  359 

V.  Phillips  248,  527 

V.  Rankin  42 

V.  Stevenson  98 

V.  TwihiU  471 

V.  Willomatt  606 

Coopwood  r.  Wallace  539 

Cope  V.  Albinson  400 

V.  Burt  565 

V.  Cordova  666,  669 

V.  Rowlands  382 

V.  Smith  509 

Copeland  v.  Mercantile  Ins.  Co.  46 

V.  Bosquet  449 

V.  Wattss  430 

Copis  !,•.  Middleton  495,  496 

Copland,  eo;  ;)«/-te  180 

Copp  V.  McDugall  225 

Coppin  V.  Braithwaite  697 

V.  Craig  83,  390,  419 

V.  Walker  419 

Coppock  I'.  Bower  365 

Cork  V.  Baker  547 

Cork   &   Bandon   Railway  v.    Caze- 

nove  281,  282 

Corlies  v.  Cumming  81 

Comfoot  V.  Fowke  52 

Corn  fate  v.  Dale  333 

Cornwall  v.  Ilovt  306 

r.  Ha'itrht  441,  449 

V.  Wilson  71,  81 

Cornwell  v.  Voorhecs  623 

Corp  V.  McComh  230,  233 

Corps  V.  Robinson  163 

Cortelyou  v.  Lansing  594 

Cory  V.  Cory  311 

Coster  V.  Tiiomason  163 

Costigan  v.  Ncwland  67 

V.  The  Mohawk  &  Hudson 

Railroad  Co.  520 

Cotes  v.  Davis  293 

Cothay  1-.  Fennell  49,  53 

V.  Tute  446 

Cottcrill  ('.  Stark ey  700,  701 

Cottin  V.  Blane  495 
Cottrill  V.  Van  Duzcn            134,  151,  152 

Cotv  V.  Barnes  453,  455 

Couch  V.  Mills  24 

Coulston  v.  Carr  •     379 

Coukcr  V.  Roliertson  380 

Courcier  r.  Ritter  69 
Couturier  v.  Ila.stie                   79,  437,  500 

Cowas-jee  v.  Thompson  486 


Cowel  V.  Simpson 

84 

Cowell  V.  Edwards 

34,  36 

V.  Watts 

109 

Coules  V.  Harts 

235 

Cox  V.  Adams 

520 

V.  Kitchin 

306 

V.  McBurney 

126,  130 

V.  Midland  Railway  Co. 

43 

I'.  Prentice 

67 

V.  Runnion 

306  n 

Coxe  V.  Harden 

485 

Coylc  r.  Fowler 

355,  357 

Cozzins  V.  Whitaker               458 

467,  474 

Cral)tree  v.  May 

262 

Craft  V.  Isham 

502,  503 

Cragg  V.  Bowman 

295 

Craig  V.  Leslie 

115 

V.  Childress 

641 

Cram  v.  Cadwell 

162 

V.  French 

178 

Cramer  v.  Bradshaw 

465 

Crane  v.  Conklin 

311 

V.  French 

177 

Cranston  v.  Clarke 

423 

Crantz  i'.  Gill 

247 

Craven  v.  Ryder 

490 

Crawford  v.  Clark 

665 

V.  Louisiana  State  Bank         73 

V.  Smith  441 

V.  Stirling  162 

Crawshay  v.  Collins  139,  170,  173 

V.  Eades  483 

V.  Slaule       127,  131,  170,  171, 

.  173 

Craythome  v.  Swinburne  33,  36,  495 

Crelncr  v.  Higginson  162,  501,  508 

Cresingcr  r.  Lessee  of  Welch        272,  273 

Cresson  c.  Stout  432 

Cripps  V.  Golding  379 

Crisp  V.  Churcliill  246 

V.  Gamel  379 

Crocker  v.  Higgins  391 

V.  Whitney  195,  196,  198 

Crockford  r.  Winter  63 

Croft  t'.  AUson  87 

Crofts  I'.  Beale  217 

V.  Watcrhouse  691,  693,  698 

Crook  V.  Jadis  214 

V.  Williams  75 

Croom  V.  Shaw  52 

Crosby  r.  Fitcii  645 

V.  Wvatt  573 

Crosley  v.  Arkwright  381 

Cross  V.  Andrews  310,  626 

V.  Black  329 

Crosse  i-.  Androcs  263 

V.  Gardner  456 

V.  Smith  233 

Crouch  V.  The  London,  &c.,  Railway 

Co.  649,  650,  710 

Crow  I'.  Rogers  389 

Crowder  v.  Austin  418 

Crowdus  V.  Siielby  35 


xlii 


INDEX   TO    CASES   CITED. 


Crowcll  V.  Gleason 

320 

Damon  i'.  Inhabitants  of  Granl 

>y          94 

Crowfoot  V.  Gurney 

188 

V.  Osborne 

441 

Crowhurst  i'.  Laverack 

363 

Damough  v.  N.  0.  &  CaroUton  R.  R. 

Crowley  v.  Vitty 

429 

Co. 

701 

Cruger  v.  Armstrong 

206 

Dana  v.  Coombs 

273 

Crump  V.  U.  S.  Mining  Co. 

52 

V.  Lull 

155, 172 

Crusoe  v.  Bughy 

426 

V.  Sawyer 

222 

Crymeo  v.  Day 

268 

Dancey  v.  Richardson 

623,  628 

Cud  V.  Ruttcr 

414 

Dane  v.  Kirkwall 

31» 

Cuffy  V.  Castillon 

327,  328 

Danforth  v.  Scoharie  Turnpike 

Co.      118 

CuUen  V.  Duke  of  Queensbury 

106 

Daniel  v.  Adams 

40,  50,  51 

Culver  V.  Ashley 

47 

V.  Ballard 

34,37 

Cumber  v.  Wane 

191 

V.  Bowles 

546,  548 

Cumberland  Bank  v.  Hann 

215 

V.  Mitchell 

462 

Cuming  v.  Hill 

533,  .534 

Daniels  v.  Pond 

431,  4.32 

Cummings'  Appeal 

306  n 

D'Anjou  V.  Deagle 

655 

Cummings  v.  Denett 

355 

Dana  v.  Dolman 

381 

V.  Powell               245 

268,  269 

V.  Spurrier 

428 

Cundcll  V.  Dawson 

382 

Darby  v.  Boucher 

246, 293 

CunlifFe  v.  Booth 

214 

Darbyshire  v.  Parker 

234 

Cunningham  v.  Ashbrook 

440,  441 

Darling  v.  March 

162,  164 

V.  Cunningham 

336 

Darst  V.  Roth 

94 

V.  Irwin 

297 

Dartnall  r.  Howard 

73,  74,  373 

V.  Knight 

263 

Daubigny  v.  Duval 

51,  79 

Curling  v.  Chalklen 

503 

V.  Davallon 

325 

Currier  v.  Barker 

433 

Dance  v.  Girdler 

507 

V.  Currier 

448 

Davenport  v.  Gear 

139 

V.  Fellows 

34 

V.  Rackstrow 

28 

V.  Ilodgdon 

195 

V.  Woodbridge 

198 

Curry  v.  Rogers 

378 

Davey  v.  Chamberlain 

603 

Curtin  v.  Patton 

270,  274 

V.  Mason 

655 

Curtis  V.  Drinkwater 

698 

Davidson  v.  Little 

362 

V.  Hall 

311 

Davies  v.  Davies 

537 

V.  Vernon                        • 

112 

V.  Humphreys          33, 

36,  37,  393 

Curtis's  Ex'r  v.  Bank  of  Somerset        108 

V.  Mann 

701,  702 

Cushman  v.  Bailey 

133 

V.  Smith 

271,  309 

I'.  Holyoke 

441 

Davis  V.  Allen 

145 

Cussons  V.  Skinner 

526 

V.  Boardman 

53 

Cutler  V.  Close 

387 

V.  Bradford 

393 

V.  Everett 

496 

V.  Bradley 

449 

V.  How 

363 

V.  Coburn 

197 

V.  Hinton 

500 

V.  Connop 

430 

V.  Johnson 

363 

V.  Curry 

330 

V.  Winsor 

136 

V.  Dodd 

241 

Cutter  i\  Copeland 

443 

V.  Duke  of  Marlborough             194 

V.  Powell 

522 

V.  Emerson 

34 

)'.  Reynolds 

355 

V.  Garrett 

74 

Cutts  V.  Perkins 

196 

V.  Gowen 

158 

V.  Salmon 

75 

V.  Hanly 

233 

Cuxron  v.  Chadley 

189,  190 

V.  Higgins 

509 

Cuyler  v.  Stevens 

234,  235 

V.  Hill 

441 

V.  Huggins 

571 

V.  Hunt 

457 

r>. 

V.  Jaciuin 

346 

V.  Jones 

433 

Dabney  r.  Stidger 

163,  164 

V.  Lane 

61,  173,  218 

D'Aquila  v.  Lambert 

479 

V.  IMaxwell 

579,  522 

Dails  V.  Lloyd 

76 

r.  Meeker 

463 

Dalby  v.  Hirst 

426 

V.  Morgan 

369 

V.  Pullen 

417 

V.  Smith 

270 

Dale  V.  Hall 

646 

V.  Symonds 

414 

Dalrymplo  v.  Dalrymple 

558,  564 

V.  Willan 

719 

Dalton  V.  Irvin 

84 

V.  Wood 

331 

INDEX   TO   CASES    CITED. 


xliii 


Davoue  v.  Fanning 

75, 

115  : 

Den  (I.  Freeman  v.  Heath 

428 

Dawes  v.  Boylston 

196  1 

Den  d.  Howell  v.  Ashmore 

428 

Dawes  v.  Cope 

442 

Denegre  v.  Hiriart 

235 

V.  Howard                   252, 

256, 

257 

Denman  r.  Bloomer 

50 

V.  Peck 

446 

Denn  d.  Burne  i-.  Rawlins 

433 

Dawkes  v.  Lord  De  Lorainc 

208, 

211 

Dennett  i'.  Cutts 

539 

Dawson  v.  Chamney 

624, 

625 

V.  Wyman 

217 

V.  CoUis 

475 

Denew    v.  Daverell 

74,85 

V.  Lawes 

510 

Dennie  v.  Walker 

225 

V.  Morrison 

43 

Dennis  v.  Morrice 

2.33 

V.  Ecal  Estate  Bank 

512 

Denny  v.  Cabot 

136 

Day  V.  Newman 

415 

V.  Lincoln 

554 

V.  Ridgway 

572 

V.  Palmer 

224 

Deacon  r.  Gridley 

369 

Denston  v.  Hendei-son 

239 

Dean  v.  Allalley 

433 

Denton  i'.  East  Anglian  Railway 

118 

V.  Hall 

206 

V.  Noyes 

97 

V.  Kcate 

602 

De  Peyster  v.  Clarkson 

103,  104 

V.  Mason               386,  460 

467 

472 

Depuy  V.  Swart 

308,  309 

V.  Newhall 

23,  24  i 

Derby  r.  Phcljis 

547 

V.  Richmond 

567 

De  Ridder  v.  McKnight 

441 

Deane  v.  Annis 

251 

V.  Schermerhom 

11 

Dearborn  v.  Dearborn 

98 

De  Rothschild  v.  R.  M.  Steam 

Pac- 

V.  Bowman 

395 

ket  Co. 

648 

V.  Turner 

450 

Derworl  r.  Loomer 

690, 

691,  693 

Dcason  v.  Boyd 

268 

,  273 

Desha  v.  Holland 

142 

De  Bcgnis  i-.  Annistead 

382 

V.  Sheppard 

173 

Decks  V.  Stnitt 

107 

Despatch  Line  i-.  Bellamy 

Man. 

Co.     47, 

Deering  v.  Chapman 

380 

453 

i\  Winchelsea 

36 

De  Tastet  v.  Baring 

239 

Deer  Isle  v.  Eaton 

393 

De  Tastctt  v.  Crousillat 

74 

Deerly  r.  Mazarine 

306 

De  ToUenerc  v.  Fuller 

608 

De  Berdt  v.  Atkinson 

225 

,  233 

Devon  r.  Pawlett 

110 

De  Berkom  v.  Smith 

164 

Dewces  v.  Morgan 

467 

De  Boom  v.  Priestly 

542 

De  Wolf  ('.  Murray 

235 

De  Bouchout  v.  Goldsmid 

51,  79 

Dhegctoft  V.  London  Ass. 

Co. 

193 

De  Bras  v.  Forbes 

215 

Dickenson  v.  Naulc 

112 

De  Briar  i-.  Mintum 

520 

Dickey  v.  Linscott 

524 

De  Camp  v.  Stevens 

524 

Dickinson  v.  FoUett 

474 

Dccharms  v.  Horwood 

•  26 

V.  Legarc 

115 

Dcckard  v.  Case 

155 

V.  Naule 

419 

Decker  v.  Livingston 

22 

V.  Survivors  of  Bolds 

and 

Decreet  v.  Burt 

36 

Rhodes 

133 

Dedham  Bank  v.  Chickering 

380 

V.  Valpy 

122, 

124,  168 

De  Forest  v.  The  Fire  Ins.  Co. 

80 

Dickson  v.  Hannnond 

678 

De  Forrest  v.  Wright 

89,  9.-J 

V.  Jordan 

440,  470 

Dcfrance  v.  Austin 

532 

V.  Zizinia 

472 

Defreeze  v.  Trumper 

458 

Dicttorich  v.  Heft 

103 

104,  115 

De  Gaillon  v.  L'Aigle 

82 

,  306 

Ditfcilorfer  r.  Jones 

430 

Delaficid  r.  Illinois              40,  50,  5i 

,  241 

Diggle  V.  London  &  Blackwell  R.  R.   118 

Delamator  v.  Miller 

235 

Dilk  r.  Kcighley 

261 

Delano  v.  Bartlett 

211 

Dill  r.  South  Carolina  R. 

R.  Co.         672 

r.  Blake 

273 

Dillard  v.  Moore 

459 

Delery  r.  Mornet 

330 

Diplock  r.  Blackburn 

75,  77 

De  Lisle  /•.  Priestman 

602 

Dix  V.  Cobb 

193 

,  19.5,  196 

Delmonico,  Assistant  V.  C.  i' 

Gui 

- 

V.  Otis 

124 

laume 

126 

Dixon  V.  Bell 

532 

Delonev  r.  Hutclieson 

127 

V.  Durham 

665,  671 

De  Medciros  r.  Hill 

446 

V.  HuiTcll 

303 

Demi  r.  Bossier 

430 

V.  Johnson 

233 

De  Mott  r.  Laraway 

645,  659 

!•.  Myers 

441 

Demott  r.  Swain 

163 

r.  Kankcn 

529 

Den  r.  Hanimcl 

76 

V.  Stansficld 

84 

xliv 


INDEX   TO    CASES    CITED. 


Dixon  V.  Yates      441,  477,  483,  487,  490 
Dob  V.  Halsey  26 
Dobell  V.  HutcIiinsoQ  416,  452 
Dockray  r.  Dunn  226,  373 
Dodd  V.  Ackloni  430 
Dodge  I'.  Adams  3G1 
V.  Bank  of  Kentucky  233 
V.  Burdell  355,  496 
r.  Enieison  210 
V.  Perkins  77 
V.  Tileston  85 
Dodgson  I'.  Bell  286 
Doc  V.  Aheniathy  272 
d.  Nash  V.  Birch  427 
d.  Higginhotham  v.  Barton    428,  429 
d.  Boscawen  o.  Bliss  427 
d.  Plevin  v.  Brown  429 
V.  Burt  421 
d.  Cainijbell  v.  Hamilton  23 
V.  Carter  246 
d.  Lewis  v.  Cawdol  428 
d.  Tomes  v.  Chambcrlaine  433 
V.  Clarke  427,  433 
V.  Cox  433 
d.  Williams  v.  Cooper  428 
d.  Macartney  v.  Crick  433,  434 
d.  Fisher  v.  Cuthell  433 
d.  Neville  v.  Dunbar  434 
d.  Davies  v.  Evans  428,  433 
d.  Elliott  V.  Hulme  433 
d.  Calvert  v.  Erowd  428,  433 
V.  Galloway  422 
V.  Glenn  112 
i\  Goldwin  45 
d.  Harrop  i\  Green  433 
d.  Grnbb  v.  Grubb  428 
V.  Guy  107 
V.  Hawke                            '  426 
d.  Kindersley  v.  Hughes  433 
d.  King  V.  Gratton  433 
V.  Hulme  163 
d.  Huddleston  v.  Johnston  433 
d.  Moore  v.  Lawder  433 
d.  Bennett  v.  Long  428 
d.  Buross  V.  Lucas  434 
d.  Lyster  v.  Goldwin  433 
V.  M'artin  63 
(/.  Williams  v.  Pasquali  429,  433 
d.  Dean  and   Chapter  of  Roch- 
ester V.  Pierce  434 
V.  Pitcher  381 
d.  Pitt  v.  Laming  426,  623 
d.  Whiteliead  v.  Pittman  428 
d.  Shore  v.  Porter  433 
d.  Knight  v.  Quiglcy  433 
d.  Gatehouse  i\  Rees  427 
d.  Thomas  v.  Roberts  243 
V.  Robinson  71,  73 
V.  Taniere  392 
d.  Phillips  V.  Rollings  433 
d.  Leeson  v.  Saver  433 
d.  Williams  v.  Smith  433 


Doe  d.  Knight  v.  Smythe  428 

d.  Gray  i\  Stanion  428 

d.  Aslin  V.  Soramorsett  433 

d.  Mann  v.  Walters  433 

d.  Bradford  v.  Watkins  434 

d.  Martin  v.  Watts  433 

d.  Jefferies  v.  Whittick  428 

d.  Hull  V.  Wood  429 

d.  Ambler  v.  Woodbridge  427 

Doggett  V.  Emerson  462 

Dogget  w.  Vowell  371 

Dole  V.  Gold  235 

V.  Stimpson  444 

V.  Weeks  205,  218 

Dolph  I).  White  390 

Donallen  v.  Lennox  380 

Donath  v.  Broomhead  482,  484 

Donellan  v.  Read  529 

Donelson  v.  Posey  174 

Doner  v.  Stauffer  177 

Domiington  v.  Mitchell  285,  286 

Doremus  v.  McCormick  161 

Doorman  v.  Jenkins       73,  372,  574,  575, 

584,  633 
Dorman  v.  Bigclow  512 
Dormer  v.  Williams  565 
Dorr  V.  N.  J.  Steam  Nav.  Co.  704,  706, 
707,  710,  718 
Dorsey  w.  Gilbert  114 
V.  Goodenow  304 
V.  Jackman  458 
V.  Rockwood  374 
Doty  V.  Wilson  395 
Doubleday  v.  Muskett  122,  123 
Dougal  V.  Cowles  160 
Dougherty  v.  Van  Nostrand  130 
V.  Western  Bank  of  Geor- 
gia 227 
Doifglass  V.  Howland  502 
V.  Reynolds  514 
I'.  Vincent  555 
Douglass  V.  Winslow  174,  175 
Dow  V.  Say  ward  175,  179 
Down  V.  Hailing                     214,  215,  218 
Downer  v.  Rowcll  615 
Downing  v.  Funk  367 
Downs  17.  Planters  Bank  233 
Dows  V.  Cobb                         239,  660,  661 
V.  Greene  43 
Drake  v.  Elwyn  132,  166 
V.  Ramey  136 
V.  Ramsey  272 
Draper  v.  Romcyn  514 
Drayton  v.  Dale'  220 
Dresser  v.  Ainsworth  458 
Drew  V.  Towle  389 
Drewe  v.  Hanson  417 
Drinkwater  v.  Goodwin  83 
r.  Tebbetts  231,  233 
Druid,  The  88 
Drummond  v.  Burrell  529 
V.  Hopper  311 


INDEX   TO   CASES   CITED. 


xlv 


80 

94 

382, 

277 

547 

495,  507 

R.  V.  Black     271, 

282 

542 

4.32 

261 

610 

693,  697 

433 

684,  711,  714,  719 

464 


Dnimmond  v.  Wood 
Drumriylit  i\  Philpot 
Drury  v.  Defontaine 

V.  Drury 

V.  Hooke 
Dr}'  r.  Daw 
Dublin  &  Wicklow  R. 

Dubois  V.  Del.  and  Hud.  Canal  Co. 

V.  Kelly  431, 

Duhose  i\  Wbeddon 
Dudireon  v.  Teass 
Dudley  v.  Smith 

V.  Warde 
DuflFr.  Budd 
Duffee  V.  Mason 
Duke  of  Beaufort  v.  Necld  41 

Duke  of  Norfolk  v.  Worthy     53,  416,  451 
Dulty  V.  Brownfield  268,  276 

Dumper  V.  Symms  117 

Dunbar  v.  Tredennick  75 

V.  Williams  336,  527 

Duncan  i'.  Course  238 

I'.  McCullough  226,311 

V.  Rail  Road  Co.  608 

u.  Tombeckbee  Bank  163 

V.  Topham  407,  408 

Dnnklee  v.  Greenfield  Steam 

Co. 
Duncomb  v.  Tickridge 
Duneuft  v.  Albrecht 
Dundas  v.  Dutens 
Dunham  v.  Rogers 
Dunklee  v.  Locke 
Dunkley  v.  Fanis 
Dunlap  V.  Hunting 

r.  Thoitipson 
Dunlop  V.  Higgins 

V.  Munroo 

r.  Waugh 
Dunn  V.  Sayles 
V.  Sice 
V.  Snell 
Dunnage  ;•.  Joliffee 
Dunnell  i-.  Mason 
Dunstoml)  r.  Dunscomb 
Durant  v.  Tirley 
Dui-cU  V.  Wendell 
Durham  i".  Arledge 
i".  Price 
r.  Wadlington 
Durnford  r.  Lane 
Duscnberry  v.  Ellis 
Dutton  V.  Gerrish 

V.  Morrison-  17 

V.  Poole 

V.  Solomonson 
Duvall  V.  Craig 

r.  Farmers'  Bank 
Dwight  V.  Blackmar  75 

V.  Brewster       639,  643,  700,  720 

t".  Emerson  231 


40' 
Mills 

196 

259 

414 

554 

136 

539 

63 

578 

233 

407,  408 

623 

463 

529 

34 

196,  197 

666 

79 

104 

300 

24 

499 

226 

364 

376 

55,  58 

471 

3,  177,  180 

389,  391 

446 

54 

226 


Dye  V.  Kerr 
Dyer  v.  Clark 
Dykers  v.  Allen 
Dykes  v.  Blake 


532 

126,  128,  132 

6U0,  601 

415,  417,  452 


E. 


Eaden  v.  Titchmarsh  12 

Eagle  V.  White  658,  673 

Eagle  Bank  v.  Chapin  234 

V.  Smith  219,  220 

Eagle  Fire  Co.  v.  Lent  274 

Eardley  v.  Price  527 

Earl  of  Bristol  v.  Willsmore  441 
Earl  of  Buckinghamshu-e  v.  Drury      277, 

281 

Earle  v.  Peale  246,  293  • 

V.  Reed  261 

Early  v.  Garrett  457,  473 
Eastern  Counties  Railway  Co  v. 

Broom  117 

East  India  Co.  v.  Henchman  75 

V.  Hensley  40 

V.  Pullen  651 

East  Haddam  Bank  v.  Scovil  73 

Eastman  v.  Coos  Bank  97 

r.  Wright  195 

Eastwood  I'.  Brown  442 

V.  Kenyon  358,  361 

Eaton  V.  Bell  ,102 

i;.  Benton  532 

Eberman  v.  Reitzell  382 

Eccleston  v.  Clipsham  14 

Eddie  v.  Davidson  177 

Eddy  r.  Hcrrin  320 

Edgdl  i:  Hart  455 

Edgcr  V.  Kiiapp  32,  35 

Edgerly  v.  Emerson  496 

Edick  v.  Crim  458 

Edie  V.  East  India  Co.  209,  215 

Edmonson  v.  Davis  161 

V.  Stephenson  529 

Edson  V.  Fuller  222,  370 

Edwards  v.  Baugh  368 

V.  Brewer  '  479,  482 

V.  Burt  362 

V.  Davis  252,  260 

V.  Etiicrington  423,  471 

V.  Footner  63 

V.  IIarl)cn  443 

V.  Hodding  67 

V.  McFall  143 

V.  Siierratt  650,  677 

r.  The  Great  Western 

R.  R.  Co.  649,  650 

r.  Towels  295 

Egberts  V.  Wood  155,  180 

Ehle  V.  Judson  361 

V.  I'urdy  11 

Eichclbcrgcr  v.  Baraitz  462 


xlvi 


INDEX   TO   CASES   CITED. 


Ekins  V.  Marklish 

80 

Emmons  i'.  Littleficld 

356 

Elam  V.  Carrutli 

47 

V.  Lord 

527 

Elder  v.  Warfield 

496 

JImmott  V.  Kearns 

368 

Elderton  v.  Emmens 

529 

Empson  v.  Soden 

432 

Eldred  v.  Hawes 

227 

Ender  v.  Scott 

464 

Eldridge  r.  Benson 

450 

English  V.  Blundell 

11,  14,  26 

V.  Long  Island  R.  R.  Co. 

693 

V.  Har\'ey 

103 

104 

i\  Rowe 

520 

Enioks  v.  Powell 

36 

V.  Wadleigh 

458 

Ensminger  v.  Mar\'in 

158 

Ellen  V.  Topp 

535 

Enys  V.  Donnithorne 

12,  15,  31 

Ellersiuiw  v.  Magniac 

486 

Episcopal  Cliaritable  Society  v. 

Elford  V.  Teed 

221 

Episcopal  Church 

118 

Eliason  v.  Henshaw 

399 

407 

Epler  V.  Funk 

219 

Elkins  V.  Boston  &  Maine  R.  R 

639 

648 

Epps  V.  Hinds 

626 

V.  Parkluirst 

382 

Erie  Bank  v.  Gibson 

509 

Elkington  v.  Holland 

98 

Ernst  V.  Bartle 

12 

EUicott  V.  Martin 

206 

Erwin  v.  Bank  of  Kentucky 

443 

Elliot  V.  Collier 

285 

V.  Blake 

99 

V.  Cooper 

208 

V.  Maxwell 

464 

Elliott  V.  Bishop 

430 

V.  Saunders 

308 

V.  Davis 

94,  96 

Esdaile  v.  La  Nauze 

41 

V.  Giese 

496 

Eskridge  v.  Glover 

399 

V.  Gurr 

563 

Esmay  v.  Fanning 

609 

V.  Horn 

263 

Ess  v' Truscott 

72 

V.  Rossell 

645 

Etheridge  v.  Binney 

158 

V.  Smith 

428 

Etherington  v.  Parrot             288 

290 

294 

V.  Swartwout 

67 

Etting  V.  Schuylkill  Bank 

224 

Ellis  V.  Brown 

206 

Eubanks  v.  Peak 

277 

v.. Commercial  Bank 

225 

229 

Eugenie  i'.  Preval 

345 

V.  Essex  Merrimack  Bridge 

114 

Evans  v.  Birch 

532 

i\  Hamlen 

388 

522 

V.  Drummond 

143 

V.  Hunt 

447 

485 

V.  Evans 

55 

,298 

V.  James 

681 

i\  Harris 

443 

V.  Paige 

433 

V.  Kennedy 

328 

V.  Schmoeck 

123 

V.  Keeland 

497 

V.  Sheffield  Gas  Consumers  Co. 

89 

V.  Llewellyn 

415 

V.  Thompson 

450 

V.  Soule                    • 

708 

V.  Turner 

87 

708 

V.  Underwood 

211 

V.  Wild 

221 

V.  Wells 

49 

Ellison  V.  Chapman 

139 

Evelyn  v.  Chichester 

280 

Elmore  v.  Stone 

443 

444 

Everard  v.  Watson 

235 

Elsee  V.  Gatward 

586 

Everett  v.  Desborough 

52 

Eltham  v.  Kingsraan 

58 

Everitt  v.  Chapman      132,  133, 

136, 

1.52, 

Elting  V.  Vanderlyn 

366 

166 

Elton  V.  Brogden 

473 

474 

Everman  ik  Reitzel 

382 

V.  Jordan 

473 

474 

Everson  v.  Carpenter             270 

271 

309 

ex  parte 

180 

Evertson  v.  Tappen 

103 

Elwes  i\  Maw 

432 

Ewart  V.  Nagel 

306 

Elysville  ftlanuf.  Co.  v.  Okisko 

118 

V.  Stark 

628 

Emanuel  v.  Bird 

180 

i;.  Street 

636 

Emblin  v.  Dartnell 

226 

Ewer  V.  Jones 

107 

Emerson  v.  Brigham 

471 

Ewers  v.  Hutton 

- 

303 

V.  Harmon 

158 

Ewing  V.  Ewing 

358 

i\  Howland 

520 

V.  French 

613 

V.  Knower 

162 

V.  Osbaldiston 

132 

Emery  v.  Chase 

355 

V.  Tees 

42 

V.  Emery 

294 

Exall  V.  Partridge 

11 

,  393 

V.  Hersey 

658 

685 

Exeter  Bank  r.  Rogers 

504 

V.  Neighbour 

303 

v.  Gordon 

592 

Emly  V.  Lye 

147 

157 

Exon  V.  RuncU 

228 

Emmerson  v.  Heelis 

97 

417 

Emmett  v.  Norton      42,  43,  293 

301 

302 

V.  Tottenham 

205 

IXDEX   TO    CASES   CITED. 


xlvii 


Fabens  v.  Mercantile  Bank 
Fahv  V.  North 
Fairchild  v.  Slocum 
Fairclough  v.  Pavia 
Fairfax  v.  Hunter 
Fairlee  v.  Herring 
Faithome  i\  Blaquire 
Falkland  v.  Cheney 
Fallowcs  V.  Tavlor 
Falls  V.  Gaithef 
Fanning  r.  Cliadwick 
Fanton  r.  Fairfield  Co.  Bank 
Farehrother  v.  Ansley 
Faris  v.  Reigle 
Farlow,  ex  parte 
Farmer  v.  Francis 
V.  Stewart 
Farmers'  Bank  v.  Bowie 

V.  Duvall 

V.  Raynolds 

V.  AVaples 
Farmers'   &   Mechanics'  Bank  v. 

Champlain   Trans.  Co.    657,    661, 

665,  687,  689,  690,  707,  710,  713 

r.  Kercheval  502,  506,  509,  514 

Farmers'  Loan  Co.  v.  Walworth  47 

Farmington  Academy  r.  Allen     378,  530 

Farnswonh  v.  Garrard 

V.  Sliepard 

V.  StOlTS 

Farimm  v.  Perry 
Farn  worth  v.  Packwood 
Farr  v.  Sumner 
Farrar  v.  Adams 
r.  Beswick 
V.  Granard 
r.  Xigiitingal 
FaiTow  V.  Turner 
Faiwell  V.  Boston  &  "Worcester  R.  R. 

Co.  528 

Fash  V.  Ross  54 

Faulder  v.  Silk  313 

Faulkner  r.  Wright  637 

Fauntlcrov's  case  161 

Favor  v.  Philhrick  658 

Fawcett  v.  Cash  578 

Faxon  v.  Mansfield  522 

Fay  V.  Howe  103 

V.  Jones  198 

V.  Steamer  New  World  695 

Fayle  v.  Bird  226 

Feathei-stonaugh  v.  Fenwick  173 
Feeter  v.  Heath                                   54,  58 

Feigley  r.  Sponebergcr  157 

Feise  v.  Wray  482 

Felichy  f.  Hamilton  153 

Felker  v.  Emerson  288 

Fell  V.  GosUn  12 

V.  Knight  627 

Fellowes  v.  Gordon  587 


58 

524 

687 

206 

324 

222 

306 

168 

354 

399,  407 

139,  140 

198 

37 

692,  696 

180 

542 

369 

235 

224,  233 

511,  513 

231 


388 

443 

349 

441 

626 

268,  269 

638,  677 

133 

306 

414,  438 

391 


Fellows  V.  Mitchell  28 

Fellows  V.  Prentiss  509 

J  Felt  V.  School  District  .         611 

Felton  V.  Dickinson  391 

1              V.  I'uller  441 

Fenl)y  v.  Pritchard  217 

Fenly  v.  Stewart  49 

'  Fenn  v.  Harrison  52,  55,  204 

Fenner  v.  Duplock  429 

i  Fenton  v.  Browne  414 

V.  Clark  524,  526 

V.  Dublin  Steam  Packet  Co.      90 

V.  Hollo  way  311 

j               V.  Reed  559,  564 

I               V.  White  261 

Fentum  v.  Pocock  216 

Fenwick  v.  Chapman  343,  344 

Fcrebe  v.  Gordon  462 

Ferguson  v. 424,  608 

V.  Oliver  474 

I                   V.  Porter  69 

V.  Thomas  '     455 

V.  Tucker  536 

Fergusson  r.  Norman  382 

Fenis  v.  Saxton  233 

Person  v.  Monroe  174 

Fewings  v.  Tisdall  520,  527 

Field  V.  Field  120 

V.  Maghee  194 

V.  Nickerson  224 

V.  Schieffelin  114 

V.  Simco  443 

Fielder  v.  Starkin  474 

Fielding  v.  Kvmer  80 

Fields  V.  Mallett  229 

V.  The  State  326 

Figes  V.  Cutter  132 

Figgins  I'.  Ward  163 

Filer  v.  Peebles  532 

Filley  v.  Phelps  174 

Fillicul  V.  Armstrong  521 

Filmer  v.  Gott  356 

Filson  V.  Himes  380 

Finch  I'.  Finch  252,  255 

Findlay  v.  Smith  103,  104 

Finney  v.  Bedford  Comm.  Ins.  Ce.         48 

V.  Fairhaven  Ins.  Co.  45 

Finnucane  v.  Small  605 

Fish  V.  Chapman   635,  636,  641,  705,  710 

V.  Dodge  92 

Fisher  i;.  Clisbce  645 

V.  Cutter  495,  499 

V.  Ellis  378 

V.  Evans  229 

V.  May  364 

V.  Morris  Canal  &  B.  Co.  241 

V.  Mowbray  2G1 

r.  Pyne  397 

r.  Salmon  215,  503 

V.  Seltzer  403 

V.  Shattuck  320.  322 

V.  Tavler  157 


xlviii 


INDEX   TO    CASES   CITED. 


Fishmonger's    Company 

V.   Robcrt- 

Forster  v.  Fuller              54, 

108,  116, 

357 

son 

375,  392 

Forster  v.  Taylor 

11 

Fisk  I',  ropoliind 

163 

Forsyth  v.  Milne 

250 

V.  Herrick 

175,  176 

Forsyth  v.  Nash 

330, 

331 

V.  Newton 

658,  660 

Forsytiie  v.  Ellis 

457 

Fitch  V.  Newheny 

682 

Fort  V.  Cortes 

225 

V.  Peckham 

531 

Forth  V.  Simpson 

617, 

681 

V.  IJeading 

211,  225 

Forward  y.  Pittard         619, 

634,  635, 

637 

V.  Sutton 

191 

V.  Thamer 

343 

Fitts  V.  Hall 

265,  268 

Fosgate,  Allen  v. 

11 

Fitzgerald  v.  Eeed 

311 

Foshay  v.  Ferguson 

321 

Fitzherbert  ?\  ^Mather 

52,  62,  64 

Foss  11.  Crisp 

324 

V.  Shaw 

433 

Foster,  ex  parte 

193 

Fitzhugh  r.  Wilcox 

313 

V.  Bates 

45 

111 

Fitzsimmons  v.  Joslin 

52,  62 

V.  Caldwell 

464 

Flagg  V.  Mann 

440 

V.  Essex  Bank     87, 

118,  573, 

605 

Flanders  v.  Barstow 

453 

V.  Frampton 

485 

V.  Clarke 

112 

V.  Hilliard 

115 

V.  Crolius 

500 

V.  Hooper 

29 

Flarty  v.  Odium 

194 

V.  Pettibone 

614 

Fleckner  v.  U.  S.  Bank 

44 

V.  Peyser 

472 

Flemihg  v.  Gooding 

428 

V.  Pugh 

443 

V.  Hayne 

308,  309 

V.  Schoffield 

553 

Flemyng  v.  Hector 

40,  43,  122 

V.  Stewart 

535 

Fletcher  r.  Bowsher 

473 

Fouldcs  V.  Willoughby 

607 

V.  Cole 

445 

Foulkes  V.  Sellway 

549 

V.  Grover 

33,  35 

Fourth  School  District   in 

Rumford 

V.  Gushee 

213 

V.  Wood 

118 

V.  Howard 

442 

Fowler  v.  Bott 

425 

426 

V.  Jackson 

34,  35 

V.  Brooks 

506 

Flewellin  v.  Rave 

593 

V.  Kymer 

486 

Flight  V.  Booth 

451 

r.  Foling 

200 

V.  McLean 

206,  207 

V.  Stuart 

358 

Flint  V.  Day 

206 

Fowles  V.   Great   Western 

Railway 

V.  Rogers 

222 

Co. 

689 

Flintum,  ex  parte 

180 

Fox  V.  Clifton 

121,  122 

166 

Flory  r.  Denny 

453,  601 

V.  Hanbury 

173 

177 

Floyer  v.  Sherard 

362 

V.  Mackreth 

75 

462 

Fluck  V.  Tollemache 

248 

V.  McGregor 

681 

Foard  v.  Womack 

225 

V.  Southack 

324 

Foden  v.    Sharp 

227 

V.  Wilcocks 

104 

Fogg  V.  Sawyer 

221 

Foxcroft  Academy  v.  Favoi 

^7 

Foggart  V.  Blackwellcr 

464 

Fraley  v.  Bispham 

465 

Foley  V.  Addcnbrooke 

14,  16,  26 

Francis  v.  Felmit 

263 

V.  Mason 

441 

Francois  i\  Lobrano 

327 

Fonda  v.  Van  Home 

244 

Frank  v.  Edwards 

505 

Foorde  v.  Hoskins 

100 

Frankland  v.  Nicholson 

565 

Foot  V.  Tewksbury 

311 

Franklin  v.  Beatty 

362 

Foote  V.  Burnet 

110 

V.  Ezell 

64 

V.  Sabin 

162 

r.  Miller 

386 

V.  Storrs 

606,  618,  622 

V.  Neate 

195 

,600 

Forbes  v.  Davison 

152 

Franklin,  The 

173 

V.  Parker 

454,  455 

Franklin  Bank  v.  Cooper 

497 

Ford  V.  Adams 

190,  195 

Franklyn  v.  Lamond 

54 

418 

V.  Bronaugh 

13 

Franks,  ex  parte 

306 

?•.  Rchman 

366 

Frazer  v.  Hilliard 

485 

Ford  V.  Stuart 

197 

r.  Mai-sh 

657 

V.  Phillips 

269,  270,  271 

Frazier  v.  Dick 

236 

Forde  v.  Herron 

130 

V.  Rowan 

262 

Forgret  v.  Moore 

380 

Frcar  v.  Hardenbergh 

360 

371 

Forman  v.  Walker 

41 

Fredd  v.  Evez 

293 

294 

Forrestier  v.  Boardman 

69,  SO 

Free  v.  Hawkins 

231 

INDEX   TO    CASES    CITED. 


xlix 


Freeman  v.  Baker  473 

V.  Baldwin  453 

V.  Boynton  363 

V.  Fenton  308 

V.  Perry  196 

V.  Kosher  ^6 

Freeman's  Bank  v.  Rollins  236,  512 

Freestone  i-.  Butcher  289 

French  v.  Chase  176 

V.  French  188,  190 

V.  Reed  582 

Freto  V.  Brown  257,  258 

Fridge  v.  The  State  243,  244 

Friedlv  v.  Sc'heetz  457 

Friend  v.  Woods  635,  637 

Frisbie  v.  IVIcCa'rty  358 

Frith  V.  Sprague  33 

Fromont  v.  Coupland  139,   140,    687, 

700 

Frontier  Bank  v.  Morse  221 

Frontin  v.  Small  53,  119 

Frost  V.  Kellogg  137 

V.  Willis  295,  302 

Frothingham  i'.  Everton  58,  74 

Fry  V.  Hill  221 

V.  Koiisseau  208 

Fryatt  v.  The  Sullivan  Co.  609 

FuUam  v.  Valentine  514 

Fuller  V.  Abbott  381 

V.  Abrahams  •  418 

V.  Bennett  65 

V.  Bradley  681 

V.  Brown  524 

V.  Jocelvn  *                62 

V.  McDonald  231 

V.  Milford  512 

V.  Naugatuck  Railroad  Co.       690, 

691 

f.  Smith  219 

V.  Wilson  52,  64 

Fulton  V.  Shaw  327 

Fulton  Bank  v.  N.  Y.  &  S.  Canal 

Co.  66 

V.  Phoenix  Bank            218 

Furber  v.  Carter  134 

Furillio  v.  Crowther  260 

Furlong  r.  Ilysom  288 

Funnan  i-.  Ilaskin  217 

Fumes  v.  Smith  266 

Fumival  v.  Crew  422 

r.  Weston  162 

Furze  i'.  Sherwood  235 

Fusselman  v.  Worthingtoa  428 


Gaby  r.  Grivcr 
Gafficld  V.  Ilapgood 
Gahn  v.  ^'icmccwicz 
Gaines  i'.  McKinlcy 
Gale  V.  Kein])cr's  Heirs 

r.  lA'ckic 

V.  Lindo 

VOL.    I. 


418 
432 
623 
52 
227 
139 
555 


Gale  V.  Parrott  258 

V.  Walsh  237 

V.  Ward  432 

V.  Wells  116 

Galena  &  Chicago  Union  R.  R.  Co. 

V.  Yarwood  701 

Gall  V.  Comber  79,  500 

Gallagher  v.  Waring  466,  467 

Gallaher  v.  Thompson  540 

Galpin  v.  Hard  225 

Gait's  Exr's  v.  Swain  377 

Galway  v.  Matthew  457 

Gamble  v.  Grimes  380 

Gambling  v.  Read  449 

Game  r.  Harvie  583 

Gammon  v.  Chandler  539 

Gandell  r.  Pontigny  520,  527 

Ganguere's  Estate,  in  re             -  313 

Gardiner  v.  Childs  148 

V.  Gray  466 

V.  Hopkins  500 

Gardner  r.  Adams  194,195 

V.  Bailie  41 

V.  Gardner  96,  289 

V.  Hopkins  497 

V.  Heartt  93 

V.  McCutchcon  '  85 

V.  Watson  573 

(j&r Aova,  ex  parte  161 

Garland  v.  Chambers  443 

ex  parte  17.3 

Garment  v.  Barrs  474 

Garnett  t'.  Willan  714,719 

V.  Woodcock  222 

Garrard  i".  Hardey  121 

Garret  v.  Malone  373 

Gan-et  v.  Taylor  28 

Garrett  v.  Handlcy  53 

Garside  v.  Trent  &  Mcrsev  Naviga- 


tion 
Gascoyne  v.  Smith 
Gaskcll  I'.  King  • 
Gasque  v.  Small 
Gassctt  V.  Godfrey 
Gaters  v.  Madelcy 
Gatlitfc  V.  Bourne 
Gaunt  V.  Hill 
Gaussen  v.  Morton 
Gazinsky  et  ux.  v.  Colbum 
Gay  V.  Lander 
Gcer  V.  Archer 
Gcill  V.  Jeremv 
Gclley  V.  Clerk 
Gennings  i>.  I^ke 
George  r.  Clagett 

r.  Elliott 

V.  Harri.s 
George  Home,  The 
Geralopiilo  v.  Wider 
tJcrmaine  r.  Burton 
Gethcr  r.  Capper 
Gibbon  V.  Paynton 
Gibbs  V.  Freeniont 


619,  687,  689 

217 

381 

362 

445 

•  285 

670 

402 

58,  62 

20 

207 

361 

234 

630 

421 

53 

610 

377,  378 

318 

233 

475 

401 

720 

230 


INDEX   TO    CASES    CITED. 


Gibbs  V.  Merrill 

274 

Glyijn  V.  Baker 

240 

Gibson  V.  Boyd 

592 

Gober  V.  Gober 

328 

330 

V.  Carruthers 

476, 

479 

Gobu  V.  Gobu 

330 

V.  Colt 

52 

Goddard  i:  Hodges 

139 

V.  Cooke 

188, 

191 

V.  Mercliauts  Bank 

220 

V.  Culver 

658,  661, 

665 

0            V.  Pratt 

143 

V.  Dickie 

556 

Godefroy  v.  Dalton 

98 

V.  East  India  Co. 

118 

Godfrey  v.  Furzo 

445 

V.  Love 

443 

Godin  V.  Lond.  Ass.  Co. 

84 

V.  Lupton 

12, 

164 

Goft'  V.  Clinkard 

646 

V.  Minet 

190 

Golden  v.  Manning 

658 

V.  Moore 

140 

Golder  v.  Ogden 

441 

V.  Spurrier 

417 

Goldsbury  v.  May 

443 

V.  Stevens 

178 

Gompertz  ik  Bartlett 

219 

V.  Wells 

425 

V.  Denton         ^ 

475 

V.  "Winter 

22 

Gonzales  v.  Sladen 

82 

Giddinjjs  v.  Coleman 

189 

Goodall  V.  Ricbai'dsoa 

592 

Giflbrd  v.  Allen 

314 

V.  PolbiU 

238 

ex  parte 

36 

237 

Goodburn  v.  Stevens 

126 

128 

Gilbach's  Appeal 

263 

Goode  V.  Harrison 

262 

Gilbert  i\  Dennis 

226 

235 

V.  M'Cartney 

136 

V.  Lynes 

260 

Goodenow  v.  Dunn 

454 

V.  Whidden 

152 

V.  Tyler 

81 

Gilby  V.  Sino'leton 

163 

Goodman  v.  Griffin 

571 

Giles  V.  Ackles 

366 

i\  Harvey 

214 

571 

V.  Grovcr 

578 

V.  Kennell 

87 

V.  Perkins 

444 

V.  Pocock 

520 

527 

Gill  V.  Cubitt 

214 

Goodnow  V.  Smith 

162 

V.  Kuhn 

133 

Goodrich  v.  Gordon 

222 

Gillespie  v.  Edmonston 

407 

i\  Jones 

431 

V.  Hannaban 

229 

Goodridge  v.  Ross 

271 

i\  Hamilton 

173 

Goodright  d.  Hall  v.  Richardson 

428 

Gillett  V.  Fuirchild 

192 

d.  Walter  v.  Davids 

427 

V.  Ellis 

676 

GoodscU  V.  "Myers 

270 

271 

V.  Hill 

441 

Goodson  V.  Brooke 

50 

V.  Mawman 

611 

Goodspeed  v.  East  Haddam  Bank 

117 

V.  Rippon 

33 

Goodtitle  v.  Southern 

421 

Gillighan  v.  Boardman 

496 

V.  Woodward 

163 

Gillis  V.  Bailcv 

72 

Goodwin  v.  Blackburne 

583 

Gilman  v.  Hall 

526 

V.  Cunningham 

199 

V.  Kibler 

366 

V.  Holbi-ook               ^ 

447 

V.  Peck 

221 

V.  Richardson 

127 

Gilmore  v.  Black 

131 

V.  Willoughby 

367 

v.  Carman 

637 

Goodyear  v.  Rumbaugh 

306  n 

Gilpin  V.  Enderbey 

134 

141 

V.  Watson 

496 

V.  Temple 

132,  134 

152 

Gookin  v.  Graham 

458 

Gilpins  V.  Conseqiia 

385 

,  446 

Goold  V.  Chapin                     672 

673 

,  674 

Girard  v.  Taggart 

447 

Gordon  v.  Buchanan                71 

645 

,647 

Girod  V.  Lewis 

341 

V.  Bulkeley 

42 

Gisbourn  v.  Hurst 

639 

V.  Hutchinson 

639 

,  641 

Gist  u.  Lybrand 

226 

V.  Potter 

253 

,  260 

Gittings  V.  Mahew 

377 

V.   Rolt 

88 

Givens  v.  Manns 

342 

Gore  V.  Buzzard 

333 

Glasgow  V.  Sands 

285 

i\  Gibson 

310 

,  312 

Gleason  v.  Dyke 

395 

Gorgier  v.  Mieville 

240 

Glen  Cove  Mut.  Ins.  Co.  v 

Harrold 

357 

Gorton  v.  Dyson 

107 

Glendenning,  ex  parte 

237 

Goslin  V.  Hod  son 

537 

Glenn  v.  Gill       . 

136 

,  174 

Gosling  V.  Birnie 

621 

Gloucester  Bank  v.  Salem 

Bank 

220 

V.  Higgins 

675 

Glossop  V.  Colman 

28 

Gott  V.  Gandy 

422 

Glover  v.  Glover 

115 

Gough  V.  Farr 

5.52 

V.  Ott 

246 

v.  Howard 

426 

V.  Proprietors  of  Di 

■ury  Lane 

286 

Gould  V.  Armsti'ong 

366 

INDEX   TO    CASES   CITED. 


35,133 
06,  707 
309 
429 
219 
152 
193 


148, 


Gould  V.  Gould 

V.  Hill  704,  705, 

V.  Shirley 
Gouldsworth  c.  Knights 
Goupy  V.  Harden 
Gouthwaite  v.  Duckworth 
Govcr  V.  Christie 
Governor,  &.c.,  of  Copper  Miners  v. 

Fox  120, 374 

Governor,  &c.  v.  Fetch  400 

Govier  v.  Hancock  296 

Gowan  v.  Jackson  164 

r.  JeftVies  173 

Gower  v.  Ca])per  373 

V.  Mainwaring  101 

v.  Moore  224,  225 

Grace  r.  Hale  245,  240 

V.  Smith  134 

Graeff  v.  Hitchman  147,  157,  159 

Grart"  V.  Bloomer  659 

Graham  v.  Brettlo  304 

V.  Hope  61,  144,  145 

V.  Hunt  309 

V.  Grade  195,  370 

V.  Kinder  197 

V.  Musson  95 

V.  O'XioI  497,  500 

V.  Itobertsoa  30,  35 

V.  Sangston  235 

V.  Wichelo  429 

Gram  v.  CadwcU  22 

V.  Seton  94 

Granl)v  v.  Amherst  114 

Grand"  Bank  v.  Blanchard  233 

Granger  v.  Collins  396,  425 

Grangiac  v.  Ardcn  358 

Grant  r.  Da  Costa  211 

V.  Ellieott  216 

V.  Healev  239 

I'.  King  "  615,616 

V.  Naylor  493 

V.  Norway  42,  652 

V.  Kid.sdale  508 

v.  Thompson  311,  313 

V.  Vaughan  206,  240 

in  re  280 

Grantham  v.  Hawley  437,  438 

Gratz  i:  Bayard  173 

Gravenor  v.  Woodhousc  428 

Graves  r.  Boston  Mar.  Ins.  Co.  48 

1-.  Dash  239 

V.  Merry  144 

V.  Tucker  497 

Gray  v.  Brackenridge  539 

V.  Cox  470 

V.  Donahoc  208 

V.  Handkinson  355 

V.  lloidsiiii)  433 

Gray's  Ex'rs  i\  Brown  513 

Grays!  irook  v.  Fox«  112 

Great  Northern  li.  Co.  v.  Shepherd    720, 

722 

Greaves  v.  Ashlin  441 


Grcely  v.  Bartlett 

I'.  Dow 

V.  Hunt 
Green  v.  Barrett 

V.  Bcesley 

V.  Farley 

V.  Goings 

V.  Home 

V.  Hulett 

V.  Kojjka 

V.  Lane 

i\  Sargeant 

V.  S])erry 

V.  Tanner 

V.  Winter 
Greenaway  r.  Adams 
Grecnby  r.  Wilcocks 
Greene  v.  Bateman 
V.  Darling 
V.  Dodsre 


51 

236,  512 

231 

173 

700 

233 

227 

53 

521 

82 

344 

75 

204,  288 

147,  159 

103,  115 

426 

110,  200 

399 

196 

514 


V.  First  Parish  in  Maiden         433 

V.  Greene  126,  128 

V.  Hatch  199 

Greenland  v.  Chaplin  702 

Greeno  v.  Munson  428 

Greenslade  v.  Dower  157 

Greenway,  ex  parte  244,  256 

Greenwood  v.  Bishop  of  London  381 

Gregg  I'.  Tliom]>son  337 

Gregoiy  t\  Frazier  311 

V.  Harman  107 

V.  Paul           '  306  n 

V.  Pierce  306 

V.  Piper  88,  89 

r.  Striker  612 

IK  Thomas  454 

Gremare  v.  Le  Clerk  Bois  Valon         382 

Grencaux  r.  Wheeler  217 

(Jreenough  v.  Smcad  206 

Grendelfr.  Godmond  293 

Grenfell    v.   Dean    and  Canons    of 

Windsor    "  194 

Grey  v.  Cooper  276 

Griffin  v.  Doe  132 

i\  Macaulay  28 

Griffith  V.  Buffum  133 

Griffiths  V.  Puleston  430 

Grigshy  r.  Nance  140 

(Jrimaldi  v.  Wiiite  475 

(irinman  v.  Lcgge  429 

(Jrinnarc  v.  Baton  Rouge  Mills  Co.      144 

Grimshaw  v.  Bender  239 

Cirindcll  v.  Godmond  304 
Grinneil  v.  Cook            624,  629,  630,  632 

GrisscU  r.  Kohinson  393 

Griswold  v.  Sheldon  443 

V.  Waddington  131,  170,  173, 
2:53 

Graning  v,  Mcndhara  475 

Grounx  v.  Abat  338 

Grosvenor  v.  Llovd  143 

(irote  V.  The  C.  &  U.  R.  Co.        699,  700 

Groton  v.  Dalheira  224 


Hi 


INDEX  TO   CASES   CITED. 


Grove  V.  Brien 

495 

Hall  V.  Huffam 

31 

V.  Dubois 

78 

V.  Leigh 

29 

Groves  v.  Perkins 

415 

V.  ]Marston 

191 

391 

V.  Slau},fhter 

345 

V.  MuUin                336,  338 

,341 

342 

V.  Smith 

132 

V.  Potter 

556 

Grugcon  v.  Smith 

235 

V.  Robinson 

192 

195 

Grynies  v.  Boweren 

432,  433 

V.  Smith 

11 

Guardian  of  Sally  v.  Beatty 

340 

V.  Snowhill 

453 

Guerry  v.  Ferryman 

196 

V.  Wilson 

205, 

213 

Guerreiro  v.  Peile 

51,  80,  420 

and  Hinds,  in  re 

571 

Guidon  v.  Robsoa 

25 

Hallen  v.  Runder 

431 

Guild  V.  Guild 

.531 

Halliday  v.  McDougall 

238 

Gulick  V.  Gulick 

139,  140 

Halsey  v.  Fairbanks 

22 

Gullett  V.  Lamberton 

276 

V.  Whitney 

162 

Gully  V.  Bishop  of  Exeter 

357 

V.  Woodruff 

25 

Gunnis  v.  Erhart 

416 

Halstead  v.  Shepard 

156 

Gunter  v.  Astor 

532 

Halwerson  v.  Cole 

676 

Gurney  v.  Behrend 

489 

Haly  V.  Lane 

212 

I'.  Womersley 

219 

Hamaker  v.  Eberley 

366 

367 

Guth  V.  Guth 

298 

Hamil  v.  Stokes 

173 

Guthrie  v.  Murphy 

259 

Hamill  v.  Purvis 

162 

Gwinnell  ;;.  Herbert 

220 

Hamilton  v.  Cunningham 

74 

Gwynn  v.  Lee 

213 

V.   Lycoming  Mutual  Ins. 

Gwynne  v.  Heaton 

415 

Co. 

407 

ex  parte 

479 

V.  Pearson 

220 

Gylbert  v.  Fletcher 

262,  533 

V.  Royse 
V.  Russell 
V.  Terry 

71 
443 
399 

H. 

V.  Watson 
Hamilton  College  v.  Stewart 

497 
377 

Hacker  v.  Storer 

110 

Hamlin  v.  Stevenson 

243 

Hacket  v.  Glover 

422 

Ham  mat  v.  Emerson 

389 

V.  Tilly 

381 

Hammon  v.  Roll 

162 

367 

Hackctt  V.  Martin 

196 

Hammond  v.  Anderson 

441 

483 

Haddock  v.  Bury 

225 

V.  Chamberlin 

206 

V.  Murray 

233 

V.  Douglas 

130, 

173 

Hadley  v.  Clarke 

660 

V.  Han)mond 

342 

Hagedorn  v.  Oliverson 

45,  46 

V.  McClures 

677 

Hageman  v.  Western  R.  R.  Corpora- 

V. Messenger      ^ 

193 

194 

tion 

690 

Hamond  v.  Holiday 

84,  85 

Hager  v.  Nolan 

537 

Hamper,  ex  parte 

133 

136 

Haggerty  v.  Palmer 

449 

Hancock  v.  Fairfield 

48,  54 

Hakes  v.  Hotchkiss 

367 

Hanchct  v.  Whitney 

433 

Haigh  V.  Brooks 

369 

Hand  i\  Baynes 

658, 

661 

Haight  V.  Badgeley 

532 

Handford  v.  Palmer 

608 

Haine  v.  Tarrant 

246 

Hands  v.  Slaney 

246 

Haines  v.  Busk 

85 

Hankey  v.  Garratt 

177 

V.  Corlin 

286 

Haiikinson  ?;.  Sandilaus 

12 

Hair  v.  Bell 

524 

Hanks  v.  Deal 

261 

264 

Haldane  v.  Johnson 

424 

V.  McKee 

466 

Hale  V.  Gerrish 

270,  271 

Hansard  v.  Robinson 

241 

V.  Henderson 

382 

Hanson  v.  Meyer                   441 

447, 

483 

V.  N.  J.  Steam  Nav.  Co. 

637 

V.  Roberdeau 

418 

V.  Smith 

458 

V.  Rowe 

96 

Halifiix  ('.  Chambers 

426 

V.  Stetson 

377 

Hall  V.  Ashurst 

99,  515 

Harbcrt's  Case 

32 

V.  Cannon 

537 

Harden  v.  Gordon 

316, 

317 

V.  Conn.  River  Steamboat  Co.     691 

Hardie  v.  Grant 

295 

296 

V.  Dewey 

428 

Hardin  v.  Ho-yo-po-Nubby's  Lessee 

97 

V.  Dyson 

380 

Harding  v.  Wilson      ■ 

422 

V.  Fuller 

220 

V.  Foxcroft 

133, 

137 

V.  Gardner 

197 

Hardman  v.  Wilcox 

75 

V.  Hall 

180,  295 

V.  Willcock 

678 

INDEX   TO   CASES    CITED. 


liii 


Hanlwicke  v.  Vernon 

76 

Haryous  v.  Stone 

4G8 

Har^reaves  v.  Kothwell 

64 

Harker  r.  Dement 

600 

Harkins  v.  Slioup 

215 

Harlan  r.  Harhui 

362 

Harland's  Case 

103,  104 

Harman  v.  Anderson 

485,  621 

V.  Fishar 

490 

Harmer  v.  Killing 

270 

Harmon  v.  Johnson 

158 

Harmony  r.  Bingham 

660 

Harney  v.  Owen 

263,  268 

Harper  v.  Gilhert 

263 

r.  Little 

58 

Harrell  v.  Owens 

660 

Harriett  v.  Ridgely 

329 

Harrington  ;■.  Brown 

75 

r.  Hinuliam 

168 

V.  Lyles 

645 

r.  ^ic-Shane 

684 

V.  Snyder     602, 

606, 

608,  610 

V.  Stratton 

388 

Harris  v.  Cani])bcll 

12 

r.  Costar 

691 

V.  Harris 

358 

V.  Hunt!)ach 

494 

V.  Lee 

293 

V.  Morris 

293, 

295,  296 

V.  Packwood 

650, 

711,  719 

r.  Kand 

675 

V.  Wall 

269,  270 

V.  Warner 

36,  37 

V.  Watson 

363 

V.  Wilson 

152 

Harrison  v.  Cage           544, 

547, 

548,  550 

V.  Clifton 

242 

V.  Close 

24, 162 

V.  Crowder 

222 

I'.  Fane 

245,  246 

V.  Gardner 

131 

r.  Mall 

302 

V.  Ileathom  ' 

121,  122 

V.  Jackson 

94 

V.  Kniglit 

370 

V.  Lemon 

311 

V.  Lord  North 

426 

V.  Mc Henry 

75 

V.  Miirrali 

610 

V.  I'liseoe 

53 

r.  Sterry 

155 

42,  59 

30 

Harrold  r.  AVhitaker 

Harry  r.  Decker 

345 

Hart  f.  Aldriilgc 

532 

V.  Crow 

306  H 

r.  Dcamer 

313,  314 

v.  Ilammett 

465 

V.  I'rater 

246 

V.  Stei)liens 

285 

V.  Ten  Eyck 

76,  602 

r.  AVindsor             422, 

423 

426,  471 

r.  Wright 

470,471 

Harter  v.  INIoore 

571 

Haitfield  v.  Kopcr 

2C4,  701 

Hartford  Bank  v.  Stedman 

228,  233 

Hartley  v.  Case 

235 

Hartley  v.  Cnmmings 

520 

V.  Harman 

520,  527 

V.  Kice 

548,  556 

V.  Wharton 

242,  269,  270 

Hartop  I'.  Hoare 

578 

Harvey,  ex  parte 

505 

V.  Brydgcs 

434 

V.  Crickett 

173 

V.  Gibbons 

385 

V.  Harvey 

432,  433 

Harvie  ?\  Oswel 

427 

Harwood  v.  Bland 

417 

V.  Heffer 

294 

Hasbrook  ?-.  Palmer 

208 

Hasbronck  r.  Andervoort 

598 

Hascall  r.  Whitmore 

214 

Haskell  v.  Adams 

139 

V.  Hilton 

193 

V.  Whittemore 

213 

Haslet  V.  Street 

163 

Hassell  i\  Long 

517 

Hassingcr  r.  Diver 

538 

Hastings  v.  Bangor  House 

46 

V.  Lovering 

465 

V.  Pepper 

638,  045 

Hatch  V.  Purcell 

393 

V.  Searles 

206 

V.  Taylor 

40,  50 

V.  Trayes 

211 

Hatchell  v.  Odom 

361 

Hatcher  v.  RIcMorine 

231 

Hatchett  i-.  Gibson 

618 

Hatsall  r.  Griffith 

11,  24,  29 

Haughey  v.  Strickler 

152 

Haughton  v.  Bayley 

23 

V.  Ewbank 

43,  44 

Haven  i\  Low 

443 

ILivcns  V.  Hussey 

155 

Hawcroft  v.  Great  Northern  Raihvav 

Co. 

649 

Hawcs  V.  Tillinghast 

137 

Hawkes  v.  Salter 

234 

Hawkins  v.  Appleby 

161 

r.  Berry 

463 

i>.  Cardy 

218 

V.  Cooper 

700 

V.  Craig 

286 

V.  Gilbert 

522 

t\  Hoffman 

720,  721 

V.  Phythian 

602 

r.  Vanwincklo 

330 

Hawley  v.  Fairar 

360 

V.  James 

115 

V.  Smith 

631 

Hawtayne  r.  Bonrne 

4 1 ,  50 

Hawthorn  r.  Hammond 

627 

Haxtnn  r.  Bishop 

227 

!  Hay  V.  Ayling 

381 

Hay  den  r.  ALulison 

393,  523 

liv 


INDEX   TO    CASES   CITED. 


Hajdou  V.  Williams 
Haydou  ex  parte 
Hayes  v.  Heyer 

V.  ^yarl•en 
Haynes  r.  Birks 

r.  Covington 
Hays  V.  Borders 
v.  JVIouille 
V.  l^iddle 
V.  Stone 
Hayward  i\  Middleton 
r.  Scousrall 


309 
180 
155 
371 
235 
513 
532 
477,  482,  485 
601 
46 
681 
446 


V.  The  Pilgrim  Society  118 

Hazard  v.  Hazard  142 
V.  New  Eng.  Mar.  Ins.  Co.      399 

V.  Treadwe'il  59 

Head  v.  Goodwin  438 

Health  v.  Hall  370 

Heapy  v.  Paris  62 

Heard  v.  Stamford  285,  286 

Hearle  v.  Green  bank  94 

Hearsey  v.  Pruyn  67 

Hearshy  v.  Hicliox  84 

Heartt  v.  Chipman  539 

Heatcheock  v.  Pennington  605 

Heath  v.  Chilton  109 

V.  Hall  197 

V.  Sansom  172 

V.  West  269 

Heathuoate  v.  Crookshanks  191 

V.  Hulme  173 

Heaton  v.  Angier  188 

Hebden  v.  Rutter  373,  544 

Hedger  v.  Steavenson  235 

Hedges  v.  Rikcr  114 

V.  Scaly  196 
Hedglcy  v.  Hoft                       246,  261,  528 

Heermance  v.  Vcrnoy  458 

Heffer  v.  HcfFer  565 

Hellaby  v.  Weaver  643,  690 

Hellawell  v.  Eastwood  432 

Helmsley  v.  Loader  97 

Helsby  v.  Mears  687 

Helyear  v.  Hawke,  50,  52 

Hemmenway  v.  Stone  11 

Hcni)>hill  r.  Chenie  660,  668 

Henck  v.  Todlmnter  97 
Henderson  v.  Australian  Royal  Mail 

Steam  Nav.  Co.  1 1 8 

V.  Barnewall  72 

V.  Clarke  242 

V.  Hudson  131 

V.  Lauck  441 

V.  McDuffee  35 

V.  Stringer  297 

JTendren  v.  Colgin  285 

Hendricks  v.  Franklin  239 

V.  Jiidah  217 

V.  Phillips  334 

Henry  v.  Goldncy  34 

V.  Leo  229 

r.  Nunn's  heirs  336,  342 

Hcnshavv  v.  Robins  464,  406 


Hensly  v.  Baker 

Hepburn  r.  Auld 

Heran  v.  Hall 

Herbert  v.  Turhall 

Hergman  v.  Dettlebach 

Herlakenden's  Case 

Hern  v.  Nichols 

Herrick  v.  Borst 

V.  Carman 

Herrin  ik  Butters 

Herring  v.  Hoppock 

Hervcy  v.  Hervey 

Hersfield  v.  Adams 

Hersom  v.  Henderson 

Hesketh  v.  Blanchard 

Heudebourck  v.  Langton 

Hewitt  V.  Charier 
V.  Wilcox 

Hey  V.  Moorhouse 

Heydon  v.  Hcydon 

Heydon's  Case 

Heyhoe  v.  Burge 

Hiatt  V.  Gilmer 

Hibbert  v.  Shee 

Hibblewhite  v.  McMorine 

Hickey  v.  Burt 

Hickok  V.  Buck 

Hicks  V.  Hankin 
?'.  Hinde 

Higgins  V.  Breen 

V.  Emmons 
V.  Livingstone 
V.  Morrison 


457 
417 
125 
243 
178 
432 

63 
509,  510 
215 
530 
449 
559 
643 
472 
133 
106 
540 
539,  540 
365 
176 

25 
136 
533 
417 
95,  240,  438 
195 
607,  609 

41 

48 
530 
578 
106 
238 


V.  Senior  48,  49,  53,  54 

Hildrcth  v.  Pinkerton  A^demy  358 

Hill  V.  Anderson  269 

V.  Buckminster  215 

V.  Calvin  501 

V.  Ely  215 

V.  Featherstonaugh  85,  98 

V.  Gray  462 

V.  Green  526 

V.  Heap  233 

V.  Hobart  450 

V.  Humphreys              "  659 

^^  Tucker  11,26 

V.  Voorhies  142 

Hillinan  v.  Wilcox  463 

Hills  V.  Bannister  474 

Hill's  Adm'r  v.  Mitchell  306  n 

Hillyer  ?;.  Bennett  268 

Hilton  V.  Dinsmore  498 

V.  Shepherd  234 

Hinckley  i\  Southgate  529 

Hind  i'."Holdship  390 

Hindc  V.  Whitehouse  403,  441,  449 

Hindlcy  v.  Wcstmeath  295,  297,  300 

Hinds  V.  Brazcalle  336 

Hine  V.  Allely  228 

Hinely  r.  Margaritz         243,  270,  271,  274 

Hines  v.  Butler  371 

Hinesburgh  r.  Sumner  380 

Hinkle  v.  Wanzer  193 


INDEX   TO    CASES    CITED. 


Iv 


Ho.l-t 
Ilodiics  c. 


Hinkley  v.  Fowler 
Hinmtin  v.  Hapgood 
V.  Jiuison 
r.  Moiilton 
Hinsdale  r.  Bank  of  Orange 
Hinton  r.  Dibbiu 
Hitchcock  V.  Coker 

V.  Humphrey 
V.  St.  John 
Hoadley  v.  Bliss 
Hoarc  r.  Graham 
Hohlis  r.  Hnll 
Holisou  V.  Watson 
Fillis 
Dawes 
V.  Eastman 
V.  Hodges 
r.  Saunders 
Hodgkinson  v.  Fletelicr 
Hodgtnan  v.  Smith 
Hodgson  V.  Anderson 
V.  Dexter 
V.  Loy 
r.  Shaw 
ex  parte 
Hodnctt  V.  Tatum 
Hodsnian  (-•.  Grissel 
Hoffman  v.  Coombs 
r.  Gold 
V.  Pitt 
Hogahoom  v.  Hemck 
Hoge  !•.  Iloge 
Hogg  V.  Snaith 
Hoggins  '•.  Ciordon 
Hogins  V.  Plvnipton 
Davis 
iderhill 
V.  Allen 


Hogue  (• 
Hoit  V.  V\ 
Holbru<d< 


390,  391 
538 
453 
369 
241 
718 
362 
509 
155 
231 
7 
301 
540 
225 
136 

191,  195 
293 
364 
301,  302,  303 
136 
58,  188 
105 

479,  482 

495,  496 
180 
47 
265 
513 
330 
442 
571 
364 
41 
538 

465,  472 
36 
271 
224 
454 
5. 'J  5 


Baker 
BuUard 
Utica  &  Schen.   R;   E 
Co 


Wright 
Holcombe  ?'.  Hewson 
Holcroft  V.  Barber 

V.  Dickenson 
Holden  r.  Dakin 
)'.  Taylor 
Holder  V.  Dickeson 
Holiling  V.  Pigott 
Holford  V.  Ilatcii 
Holker  r.  Parker 
HoU  V.  GrifHn 
Holland  v.  Holland 
('.  Turner 
HoUingswortli  r.  Napier 
Hollingwortli  v.  Tooke 
Hollis  I'.  Poole 
HoUister  v.  Nowlen 

Holly  V.  Rathhonc 
HoUuan  v.  Lovncs 


696 

84 

471 

578 

543,  544 

460,  463,  467 

422 

554 

430 

200 

99 

621 

567 

224 

485,  489 

84 

433 

673,  691,  709,  710, 

719 

191 


Holmes  v.  Blogg  268,  273,  280 

Holmes  v.  Buckley  201 

V.  Kerrison  221 

V.  Higgins  123,  139 

V.  Weed  32 

V.  Williamson  32,  35 

V.  Tremper  433 

Holridge  u.  Gillespie  115 

Hoist  r.  Pownal  477 

Holt  V.  Bodey  572 

V.  Brien  288 

r.  Ward  Clarencieux     27C,  376,  545 

Ho! viand  c.  DeMendez  143 

Homer  v.  Ashford  363 

V.  Thwing  264,  608 

Homes  v.  Crane  443,  454,  595 

V.  Dana  370,  378 

V.  Smith  235 

V.  Smvth  217 

Honner  v.  111."  Central  E.  R.  Co.  528 

llonynmn  v.  Campbell  546 

Hood  ('.  Farnstock  65 

V.  N.  Y.  &  New  Haven  R.  R. 

Co.  120,  690 

Hoodly  V.  McLainc  440 

Huoc  r.  Oxley  44 

Hooper  v.  Williams  206,  207 

Hoover  v.  Pierce  381 

Hope  V.  Cust  161 

Hopkins  v.  Ap])lehy  475 

V.  La<()uturc  53 

V.  Logan  374,  396 

V.  Mehaffy  58 

V.  Richardson  500 

V.  Smith  164 

V.  Tan(jueray  403 

V.  Thompson  453 

Hopkinson  r.  Lee      14,  16,  17,  18,  19,  24 

Ilopkirk  ('.  Page  233 

lloiik'v  I'.  DufVcsne  225 

llojiping  V.  Quia  98 

Hopson  V.  Boyd  314 

Horbach  v.  Elder  33 

Horn  V.  Ivy  117 

Hornbuckle  v.  Hombury  302 

Hornljv  r.  Lacy  390 

Ilorncastle  v.  Farran  483 

Horner  ?-.  Marsliail  311 

Ilorsefall  v.  Mather  425,  608 

Horsfall  v.  Handley  67 

Horslcy  v.  Bell  105 

llort  V.  Norton  372,  531,  541 

Horton's  Appeal  171 

llosea  V.  McCrory  657 

lioskins  r.  Miller  286 

llosmer  /■.  Beebe  yi 

lloudlette  r.  Tallman  441 

Hough  c.  Richardson  462 

V.  Warr  517 

Houghton  V.  Matthews  78 

Ilouldiicii  V.  Canty  235 

Houliston  V.  Smyth  293,  294 


Ivi 


INDEX    TO    CASES    CITED. 


Housntonic  Bank  v.  Laflin 

233 

235 

Hull  z:  Connolly 

259 

House  V.  Fort                          459 

463 

464 

V.  Pickersgill 

45,  46,  47 

V.  Scliooncr  Lexington 

670 

Hulle  V.  Heightman 

527 

Houser  v.  Ik-ynolds                269 

272 

273 

Humble  v.  Hunter 

48,  49 

Hovey  r.  Blaiicharcl 

4 

7,  65 

Hume  I'.  Bolland 

161 

Hovil  V.  Pack 

47 

Humjihrey  r.  Douglass 

264 

How  V.  Kcnil)all 

496 

497 

Hum])hreys  v.  Comliue 

464,  471 

i\  Wei  (Ion 

415 

Hundley  v.  AVebb 

443 

r.  Whitel)anck 

72 

Hunsden  v.  Cheyney 

555 

V.  Whitlicld 

72 

Hunt  r.  Adams 

496 

Howard  i\  iVines 

214 

V.  Bate 

371,  396 

V.  BaiUie 

41 

i\  Bridgham 

511,  512 

V.  Dooiittle 

423 

V.  DeBhupiiere 

294,  301,  302 

V.  Hoey 

470 

I'.  Haskell 

675,  681 

V.  Ives 

233 

V.  The  Otis  Company 

520,  522 

V.  Miner 

447 

V.  Peake 

276,  376,  545 

V.  Priest 

128 

V.  Rousmanier 

58,  61 

V.  Shepherd 

239 

V.  Royal  Ex.  Ass.  Co. 

163 

V.  Whetstone 

293 

V.  Thompson 

252 

i\  Williams 

442 

V.  United  States 

511,  512 

Howden  v.  Simpson 

380 

ex  parte 

260 

Howe  V.  Bradley 

224 

Hunter  v.  Agnew 

243,  261 

V.  Handley 

12 

V.  Boucher 

295,  296 

V.  Nickels                      501, 

502, 

503 

V.  Fulcher 

345 

V.  O'Mally 

373 

V.  Hudson  Buir  Iron 

Machine 

V.  Svnc-e 

381 

Co. 

63,  67 

V.  ^Vard 

35 

i\  Hunt 

32 

Howell  r.  Harvey 

170 

V.  Jameson 

52 

V.  Jackson 

627 

V.  Le  Conte 

424 

V.  Mclvers 

370 

V.  Miller 

48 

Howes  V.  Barker 

355 

V.  Osterhondt 

434 

I'.  Bigelow 

286 

V.  Parker 

47,  67,  94 

Howland  v.  Carson 

222 

V.  Rice                   * 

444 

Hoxie  V.  Carr                 126,  127, 

129, 

130 

Huntingdon  v.  Knox 

48,  53 

Hoy  V.  Boo-ers 

286 

Huntington  v.  Hall 

459 

Hoyle  V.  Stowe               269,  272, 

273, 

276 

Huntlev  r.  Bulwer 

98 

Hoyt  V.  French 

513 

HuntlN-  V.  Waddell 

457 

V.  Wildfu-e 

520 

•Hurd  v.  Little 

236 

Hubbard  v.  Coolidge 

362, 

401 

V.  West                 613, 

614,  615,  616 

V.  Cummings 

268* 

Hurry  v.  Mangles 

485 

V.  Jackson 

218, 

273 

Hurst  V'.  Holding 

85 

V.  Morgan 

186 

Husbands  v.  Smith's  Adm'r 

106 

Hubbcll  r.  Carpenter 

513 

Huscomo  r.  Standing 

322 

Hubbersty  v.  Ward 

42, 

652 

Hussey  v.  Freeman 

233 

Hubbert  v.  Borden 

49 

V.  Jewett 

276 

Hubgh  i:  New  Orleans  E.  R. 

528 

V.  Roundtree 

532 

Hnckman  v.  Fernie                      43,  52,  63 

V.  Thornton 

441 

Huddlcston's  Case 

61 

Huston  V.  Cantril 

357 

Hudgiiis  r.  Wright 

326 

Hutchins  v.  Bank  of  Tenn. 

144 

Hudnal  v.  Wilder 

443 

V.  Brackett 

623 

Hudson  r.  Granger 

83 

r.  Gilchrist 

443 

I".  Hudson 

112 

V.  Hudson 

144 

V.  Revett 

95 

r.  Olcutt 

483 

?'.  Robinson 

12 

?'.  Turner 

161 

Huff  V.  Nickerson 

393 

Hutchinson  r.  Bowker 

399,  400 

Huffman  r.  Ilulbert 

509, 

510 

V.  IVIoody 

512 

Hughes,  ex  parte 

75 

V.  Smith 

159,  180 

V.  Hughes 

256 

V.  York,  Newcastle,  and 

V.  Humphreys 

534 

Berwick  R'j 

Co.           528 

V.  Kiddell 

218 

Huttman  v.  Boulnois 

518 

r.  Large 

215 

Ilutton  V.  Eyre 

23 

Hugucnin  r.  Basely 

75 

V.  Dtlanscll 

545 

INDEX   TO   CASES   CITED. 


Ivii 


Hutton  I'.  "Wan-en 

426 

,  430 

Jackson  v.  Sedg\vick 

173 

Hyat  V.  Hare 

160 

V.  Stewart 

97 

Hyatt  V.  Boyle 

465 

,  466 

V.  Van  Dalfscn 

75 

Hyde  v.  Paige 

53 

V.  Wetherill 

464 

V.  Stone 

286 

V.  Walker 

382 

V.  Trent  &  Mersey 

Navigation 

620, 

V.  Walsh 

75 

65S    efiT 

666 

,. 

641 
166 

V.  Wolf 

Ui/O,    \f\JO 

53 

ex  parte 

Hyne  v.  Dewdney 

208 

Jacky  V.  Butler 
Jacobs  V.  Featherstone 
Jacobson  v.  Le  Grange 

176 
306 
537 

I. 

Jacomb  v.  Hanvood 

22 

Iley  V.  Frankensteia 
Illidge  v.  Goodwia 
Ingalls  V.  Bills 
Ingate  v.  Christie 
Inge  V.  Bond 
Inglcdcw  V.  Douglas 
Ingraliam  v.  Gilbesh 
Ingram  v.  Ingram 
Ireland  v.  Kip 
Irvine  v.  Crockett 

693 

450 
700 
698 
642 
458 
261 
361 
71 
224 
276 

James  v.  Bixby 
V.  Emery 
V.  Firlcrod 
V.  GriflSn 
V.  Jones 
V.  Le  Roy 
V.  MoCredie 
V.  Morgan 
r.  O'DriscoU 
V.  Shore 

530 
14,  15,  16,  17 
373 
481 
657 
535 
50 
362 
537 
417 

V.  Kiikpatriek 
V.  Stone 
V.  Withers 

Irving  r.  Greenwood 
V.  Motley 
V.  Thomas 

Isaac  V.  Clark 

549 

462 
380 
227 
554 
63 
461 
580 

V.  Williams 
Jameson  v.  Swinton 
Jamison  v.  Cosby 
Jaques  v.  Marquand 

V.  Todd 
Jarman  v.  Patterson 
Jarvis  v.  Brooks 

234 
127 

374 
235 
505 
159 
39 
326 
180 

V.  West 

327 

347 

V.  Davis 

443 

Isabel  V.  Norvell 

608 

V.  Peck 

381 

Isler  V.  Baker 

173 

V.  Rogers 

600 

602 

Israel  v.  Clark 

698 

Jee  V.  Thurlow 

299,  300 

301 

Ivans  V.  Draper 
Ives  V.  Jones 

3 

20 
7,  70 

JeflFerys  v.  Gurr 
Jefford  V.  Ringgold 

393 
276 

V.  Sterling 
Ivesou  V.  Conington 
Izon  V.  Gorton 

379 

99 

422 

Jeffrey  v.  Bigclow 
Jefts  V.  York 
Jcncks  V.  Coleman 
Jendwinc  v.  Slade 
Jenkins  v.  B  lizard 

63 

58 

696 

463 

144 

J. 

V.  Brewster 
V.  Hooker 

199 
194 

Jackson  v.  Baker 

81 

V.  Hutchinson 

57 

V.  Bridges 

330 

V.  Pickett 

655 

V.  Bryan 

433 

Jenkyns  v.  Brown 

486 

V.  Bullock 

345 

V.  Usbornc        239 

482,  487 

489 

r.  B urchin 

272 

274 

Jenness  v.  Bean 

217 

V.  Carpenter 

271, 

274 

V.  Emerson 

258 

V.  Cobbin 

396, 

425 

Jenney  i'.  Alden 

258 

V.  Cornell 

180 

V.  Lesdcmier 

99 

V.  Duchaire 

497, 

555 

Jennings  v.  Brown 

358 

V.  Fitzsimmons 

324 

V.  Camp 

522 

i\  Galloway 

399 

V.  Estes 

152 

I'.  Green 

324 

V.  Gratz 

465 

V.  Hudson 

238 

V.  Merrill 

80 

V.  Lervey 

341 

V.  Newman 

109 

V.  Lunn 

324 

V.  Pitman 

262 

533 

r.  Mayo 

270,  276, 

391 

r.  Roberts 

235 

V.  Packer 

227 

V.  Ru.idall 

264 

V.  Parks 

300 

Jennison  v.  Statl'ord 

366 

V.  Richards 

230 

Jenys  i-.  Fawler 

220 

V.  Robinson 

133, 

137 

Jeremy  r.  Goochman 

371 

V.  Rogers 

648 

Jerome  v.  Whitney 

208 

Iviii 


INDEX   TO    CASES   CITED. 


Jervoise  v.  Silk  256 

Jesse  V.  Roy  317 

Jessel  V.  Williimisburgh  Ins.  Co.  195 

Jeune  v.  Ward  242 

JcwoU's  Lessee  v.  Jewell  500 

Jewett  V.  Covnforth  35 

V.  Doekray  196 

V.  Stevens  152 

V.  Warren  370 

Jewitt  V.  Wadleigh  99 

Jewry  v.  Busk  538 

Joel  V.  Morrison  700 

Johns  V.  Dodsworth  25 

V.  Simons  67 

Johnson's  Appeal  115 

Johnson,  ex  parte  169 

Johnson  v.  Blasdale  58,  71,  205 

V.  Blenkensop  520 

V.  Bloodgood  198 

V.  Collins  23 

V.  Dorsey  362 

V.  Evans  179 

V.  Foster  391 

V.  Hill  632 

V.  Johnson  33,  417 

V.  Kennioii  218 

V.  Lines  245,  259 

V.  Marriott  98 

V.  Martinus  215 

I'.  Mcdlicott  311 

V.  Midland  Railway  Co.  648,  650 

V.  Municipality  117 

V.  Ogilby  54 

V.  O'Hara  81 

V.  Pie  265 

V.  Planters'  Bank  509 

V.  Sims  318 

V.  Schooner  McDonough         622 

V.  Smith  46,  48 

V.  Stone  721,  722 

V.  Thayer  189 

V.  Totten  145 

V.  Wilson  30 

Johnston  v.  Barrett  336 

V.  Cope  460,  467 

V.  Fessler  399 

v:  Huddlcston  430 

V.  Nicholls  509 

V.  Searcy  512 

V.  South  Western  Railroad 

Bank  63 

t'.  Thompson  511 

V.  Wabash  College  377 

ex  parte  224 

Johnstone  v.  Huddlestone  433 

Jolland, V.  11 

Jones  V.  Asliburnliam  306,  368,  309 

V.  Boston  Mill  Corp.  364 

V.  Boyce  693 

V.  Bradner  476 

V.  Brewer  116 

V.  Bright  469 

V.  Darch  276 


20,  27, 


Jones  V.  Dowman 

V.  Dyke 

V.  Edney 

V.  Eoxall 

i\  Glass 

V.  Herbert 

V.  Jones 

V.  Littledale 

V.  Nanney 

d.  Griffiths  v.  Marsh 

V.  Noy 

V.  O'Brien 

V.  Perkins 

V.  Richardson 

V.  Robinson 

V.  Roe 

V.  Ryde 

V.  Sims 

V.  Smith 

V.  Tanner 

V.  Thurloe 

V.  Todd 

V.  Tyler 

?'.  Voorhees 

V.  Waite 

V.  Williams 

V.  Witter 

V.  Woodbury 

Vi  Yates 
Jordan  'v.  Fall  Rirc*  R.  R.  Co. 
V.  James 
V.  Norton 
Josephine  v.  Poultney 
Josephs  V.  Pebber 
V.  Pebrer 
Joslyn  V.  Smith 
Jourdain  v.  Wilson 
Jndah  r.  Harris 
Judd  V.  Lawrence 
Judge  V.  Wilkins 
Judkins  v.  Walker 
Judson  V.  Holmes 
V.  St  urges 
V.  Uass 
Juliana,  The 
Juniata  Bank  v.  Hale 


K. 


643, 
300, 

197, 


54 
418 
416 
103 
605 
162 
483 
54,  418 
418 
434 
61,  173 
226 
311 
454 

389,  390 
438 
219 
445 

571,  595 
107 
632 
268 
631 

704,  721 

379,  381 
402 

198,  199 

542 

173 

720 

84,  479 

40,  401 

345 

85 

121 

511,  513 
201 
208 
324 
362 

263,  523 
206 
80 
415 
316 
224 


Kain  v.  Old 

472 

Kane  v.  Gott 

115 

V.  Paul 

109 

in  re 

256 

Karr  v.  Karr 

104 

Karr's  Adm'r  v.  Karr 

103 

Karthaus  v.  Ferrer 

168 

Kase  V.  John 

475 

Kay  V.  Allen 

501 

V.  Duchess  dc  Pienne 

306 

Kaye  v.  Brett 

43 

r.  Dutton 

360,  395,  397 

Kayser  v.  Disher 

108 

INDEX   TO    CASES    CITED. 


Ux 


Keanc  v.  Boycott 
Kcarsier  v.  Holmes 
Kcarsk'y  v.  Cole 
Keaslcy  i'.  Cockl 
Keates  v.  Cadogan 
Keeler  v.  Field 
Keener  v.  Harrod 
Keightley  v.  Watson  l'^ 

Kiester  r.  Miller 
Keith  i\  Jones 
Kelby  v.  Steel 
Kell  V.  Nainl)y 
Keller  v.  Ybarru 
Kelley  i\  IIurlI)urt 
Kellogg  r.  Denslow 
Kelly  V.  Mayor  &c.  of  New  York 
V.  Kenfro 
V.  Solari 
Kemleys  v.  Kicliards 
Kemp  f.  Andrews 
V.  Balls 
V.  Burt 
V.  Carnlcy 
I'.  Coughtiy 
V.  Fiuden 
V.  Pryor 
Kendall  v.  Fitts 
Kendrii-k  v.  Campbell 
Kennard  v.  Bnrtou 
Kennaway  v.  Treleavan 
Kennedy  v.  Baltimore  Ins.  Co. 
V.  Boliannon 
V.  McFadon 
V.  Lee 
V.  Ross 
Kenrig  v.  Eggleston 
Kensington,  ejr  p<trle 
Kent  V.  Kent 

V.  Shuckard 
V.  Somervell 
Kenwortby  v.  Scliofield 
Ker  V.  Dungannon 
V.  Mountain 
V.  Snead 
Kerns  v.  Piper 
Kerr  v.  Laird 

V.  Willan 
Kennson  v.  Cole 
Kershaw  v.  Matthews 
Kerslake  c.  White 
Kerouhaker  i\  (Cleveland  C.  «&  C 

K.  Co. 
Ketchell  v.  Burns 
Ketchura  v.  Durfee 
V.  Durkeo 
V.  Evertson 
Ketley's  Case 
Ketsey's  Case 
Kcttletas  r.  Fleet 
Key  V.  l?rad.shaw 
V.  Coteswoiih 
Keycs  v.  Kcyes 
Keys  V.  Williams 


244,  532 

Kidd  V.  Rawlinson 

442 

521 

Kiddell  v.  Burnard 

473 

237 

Kieran  i\  Sandars 

621 

123 

Kilby  i\  Wilson 

161 

462,  470 

Killcrease  v.  Killcreaso 

285 

449 

Kimball  v.  Rutland  &  B.  R 

R.  Co.     642, 

55 

707,  710 

4,  17,  27 

V.  Keyes 

303 

373 

Kilgour  V.  Finlyson 

44 

208 

Kimbro  v.  Lytle 

217 

31,  35 

Kimpton  v.  Eve 

432 

28 

Kinder  v.  Shaw 

80 

399 

King  V.  Baldwin 

510 

142,  143 

V.  Bardeau 

415 

474,  475 

V.  Bickley 

235 

91 

V.  Faber 

158 

550 

V.  Flintan 

296 

440 

V.  Hoare 

11,  12 

168 

V.  Hobbs 

367 

31 

I'.  Humjjhery 

622 

216 

V.  Humphreys 

614 

98 

V.  Jones 

109,  110 

155 

V.  Kersey 

553 

645,  685 

V.  Lenox 

655 

32,  33 

V.  I\IcCampbcll 

300,  n 

71,  81 

V.  Richards            577, 

578,  682,  684 

443 

V.  Sears 

379 

222 

V.  Shepherd 

643,  G48 

702 

V.  Sow 

532 

375 

V.  Thorn 

108,  109 

117,  118 

V.  Upton 

3GG,  308 

144 

Kingdom  v.  Nottle 

109,  110,  200 

139 

Kingman  v.  Sjiurr 

131 

130,  407 

Kingston  v.  Kincaid 

09,  73 

443 

V.  Phelps 

374,  376 

676,  720 

r.  Wilson 

69 

180 

Kinley  v.  Fitzpatriek 

463 

108,  529 

Kinloch  v.  Craig 

482 

627 

Kinlyside  v.  Thornton 

432 

108 

Kinnci-sley  r.  Orpe 

426 

403 

Kinsley  v.  Ames 

433 

75 

V.  Roliinson 

225 

697 

Kintzing  v.  JNIcElrath 

462 

103 

Kintzinger,  Estate  of 

285 

41 

Kipling  !•.  Turner 

507 

104 

Kirby  v.  Bannister 

106 

719 

V.  IngersoU 

155,  150,  160 

381 

V.  Schoonmaker 

174 

173 

V.  Sisson 

241 

421 

Kirk  V.  Blurton 

97 

.  E. 

V.  Hodgson 

157,  169 

701 

r.  Nice 

470 

493 

Kirkman  v.  Newstead 

28 

157 

I'.  Shawcross 

627 

153,  174 

Kirkpatrick  v.  McCulloch 

231 

522 

v.  Muirhead 

217 

279 

r.  Stainer 

82 

279 

Kirton  r.  Elliott 

246 

339,  343 

Kirwan  r.  Kirwan 

167,  302 

543 

Kitchen  v.  Lcc 

273 

48Q,  486 

Kitchin  v.  Buckley 

21 

564 

t'.  Compton 

21 

193 

Kitson  r.  Julian 

504 

Ix 


INDEX   TO    CASES   CITED. 


Kittredge  v.  Woods 
Kitty  V.  Fitzhugh 
Klein  v.  Cumcr 
Kline  v.  Beehe 

V.  L'Amoureux 
Ivnapp  V.  Alvord 

V.  Curtis 

?,'.  Hanford 

V.  McBride 
Knight  V.  Bennett 
I'.  Fox 
V.  Hughes 
V.  Nichols 
Knights  i\  Quarles 
Knobb  V.  Linsay 
Ivnott  V.  Cot  tee 

V.  Morgan 
Knox  V.  Flack 
Kohlnian  v.  Ludwig 
Kohn  i\  Packard 
Konig-  V.  Bayard 
Koniginacher  v.  Kinimel 
Kooystra  r.  Lucas 
Korncgay  v.  White 
Ivramer  c.  Sandford 
Kurtz  V.  Adams 
Kyle  r.  Green 
Kymer  v.  Suwercropp 


431 

331,  342 
497 

244,  273 

259 

01 

618 

108 

172,  173 
430 
89 
33 
452 
110 
414 
103 
131 
243 
213 

669,  670 
238 
115 
422 
474 
226 
497 
226 
53,  54,  479 


Lacey  r.  Lear  434 

ex  j  If  (tie  75 

Lackey  v.  Stouder  458 

Lacy  V.  Kynaston  23 

V.  Usbaldiston  522 

Laclough  V.  Towle  678 

Lacoste  r.  Flotard  386 

Ladd  V.  Chotard  658 

V.  Kennev  225 

V.  Lynn  "  304 

Lady  Arundell  v.  Pliipps  442 

Lady  Belknap's  Case  306 

Lady  Orniond  r.  Hutchinson  76 

LaFarge  c.  Hcrtcr  512 

V.  Jayne  309 

V.  Kneeland  67 

Lahay  v.  Holland  30 

Laidlaw  v.  Organ  461 

Laidler  v.  Elliott  98 

Laiug  I'.  Colder  692,  710,  718 

V.  Fidgeon  469 

Lamb  v.  Crafts  465,  472 

Lamliert's  Case  160 

Lamhurn  v.  Cruden  526 

L'Ammcux  v.  Gould  363,  376 

Lanionricux  v.  Hewit  493 

Lampet's  Case  192 

Lancaster  ?'.  Harrison  24,  26 

Lancaster  Bank  i\  Wordward  215 

Lancaster  Co.  Bank  r.  Staufter  306  n 

Lanchester  v.  Tricker  32 

Land  v.  Jeffries  442 


Landry  v.  Stansbury  225 

Landsdale  v.  Cox  33 

Lane  v.  Cotton       573,  622,  627,  648,  650 

V.  Drinkwater         13,  15,  20,  24,  26 


V.  Goodwin 

565 

V.  Ironmonger 

289 

I'.  McKeen 

288 

i\  Owings 

24 

V.  Steward 

233 

Fraser  and  Boj-lston,  Case  of 

134 

La  Neuville  v.  Nourse 

467 

Lanfear  v.  Sumner 

490 

Lang  V.  Bevard 

511 

V.  Smith 

240 

V.  Whidden 

311 

Langan  v.  Hewett 

162 

Langdale,  ex  parte 

132 

Langdon  v.  Buel 

453 

Langford  v.  Frey 

244 

Langfort  v.  Tiler 

441, 

444 

V.  Tyler 

441, 

479 

Langley  v.  Berry 
^       V.  Palmer 

189 

228 

Langton  it.  Horton 

438 

Lanier  ?;.  McCabe 

168 

Lanphier  v.  Phipos 

74 

Lansing  v.  Gaine 

144 

V.  McKillnp 

163 

Lantry  v.  Parks 

522 

523 

Lantz  I'.  Frey 

532 

Lanyon  v.  Toogood 

444 

Lary  v.  Young 

231 

Lassell  r.  Reed 

431 

,  432 

Lassellc  v.  Brown 

306  n 

Latham  v.  Moitow 

418 

Latimer  r.  Batson 

442 

Latt  V.  Booth 

244 

,  261 

Lattimore  v.  Garrard 

396 

Laughan  v.  Bewett 

306 

Laugher  v.  Pointer 

92 

Laughlin  v.  Ferguson 

443 

Laveroni  v.  Drury 

648 

Laverty  v.  Burr 

162 

Law  V.  Wilkin                247,  250 

,  371 

,  392 

Lawler  v.  Koaquick 

7 

3,  80 

Lawrence  v.  Clark 

139 

V.  Kemp 

432 

V.  McArter 

243 

V.  McCahnont 

495 

,  509 

V.  Stonington  Bank 

212 

V.  Taylor 

127 

,  160 

V.  Wright 

111 

Lawson  v.  Farmers'  Bank 

233 

,  234 

V.  Lovejoy         244,  268,  273,  280 

V.  Townas  501 

V.  Weston  206,  214 

Lawton  r.  Lawton  433 

V.  Salmon  433 

Layer  v.  Nelson  32 

Lavfield's  Case  157 

Lazell  1-.  Pinnick  3U 

Leach  v.  Hewitt  225 

V.  MuUett  416,  451 


INDEX  TO   CASES   CITED. 


Ixi 


Leach  v.  Thomas 
Leader  v.  Barry 
Leaf  I'.  Coles 
Lean  v.  Shutz 
Leavitt  v.  Palmer 
V.  Peck 
V.  Siivage 
V.  Simes 
Leek  I'.  Maestaer 
Ledoux  V.  Gosa 
Leo  V.  Atkinson 
V.  Coleshill 
V.  Dick 
V.  Lee 

V.  Muggeridge 
r.  Vernon 
V.  Wheeler 
Leech  v.  Baldwin 
Leeds  v.  Cook 
V.  Vail 
V.  Wright 
Leeds  and  Thirsk  Railway  v.  Feam- 

ley  279,  280,  281,  282 

Lees  V.  Nuttall  75 

V.  Whitcomb  374 

Leeson  v.  Holt  709 

Lefever  v.  Witmer  306  n 

Leflore  v.  Justice  470 

Legg  V.  Legg  285,  286 

d.  Scot  V.  Bcnion  434 

Leggat  V.  Reed  289 

Legh  V.  Hewitt  426 

V.  Legh  22,  162,  195 

Legrandi'.  Hampden  Sydney  College  118 
Lc  Grand  v.  Darnall  342 

Legro  I'.  Staples  189 

Le  Guen  v.  Gouvemeur  510 

Lehman  v.  Jones  226 

Leigh  V.  Smith  652 

V.  Taylor  106 

Lcighton,  ex  parte  116 

V.  Sargent  74 

V.  Stevens  449 

Leland  v.  Creyon  500 

Le  Loir  v.  Bristow  528 

Lemar  t\  jNIiles  433 

Lemott  V.  Skcn-ctt  426 

Lennox  r.  Mutual  Ins.  Co,  676 

Lennox  r.  Roberts  233 

Leonard  v.  Bates  355 

V.  Hcndrickson  646 

V.  Leonard  313 

V.  Vredenburgh  496,  497 

Lepard  i'.  Vernon  61 

Le  Roy  v.  Johnson  1 57 

Le  Sage  i'.  Coussmaker  532 

Lessee  of  Lazarus  i:  Bryson  76 

Lester  v.  Jcwctt.  374 

I'.  McDowell  441 

L'Estrange  v.  L'Estrangc  188 

Letcher  v.  Bank  of  the  Common- 
wealth 506 
V.  Norton                                   454 


432 

Lethbridge  v.  Phillips 

579 

242,  559 

Lcverick  v.  Meigs 

69,  78 

173 

Levi 

V.  Waterhouse 

711 

306 

Levy 

V.  Bank  of  U.  S. 

220 

381 

V.  Cohen 

407 

157 

V.  McCartee 

324 

511,  512,  513 

Lewin  v.  Guest 

417 

224 

Lewis,  ex  ]iarte 

622 

618 

V.  Burr 

235 

72 

V.  Fullerton 

345 

607 

V.  Gamage 

99 

381 

V.  Gompentz 

235 

501 

V.  Jones 

237,  426,  431 

532 

V.  Kramer 

223 

359,  360,  361 

V.  Langdon 

1.30 

422 

V.  Lee 

306,  568 

306  n 

V.  Littlcfield 

264 

638 

V.  Lyman 

431 

549 

V.  Nicholson 

57 

288 

V.  Pead 

314 

484 

r.  Peake 

474 

V.  The  Western  Railroad  Co.  661, 

673,  675 

V.  Trickey  371 

Libhart  v.  Wood  521 

Lickbarrow  v.  Mason    215,  239,  240,  487, 

489 

Liddard  v.  Kain  459 

Liddlow  r.  Wilmot  301,303 

Liford's  Case  432 

Lightburn  v.  Cooper  475 

Liglitly  ?'.  Clouston  535 

Ligonia  v.  Buxton  563 
Lilly  V.  Elwin                 518,  521,  522,  527 

V.  Hays  355,  390 

V.  Hodges  12 

Limerick  Academy  r.  Davis  377 

Lime  Rock  Bank  v.  Mallett  513,  514 

Lindo  r.  Unswortli  234 

Lindus  v.  Bradwell  293 

Line  v.  Stephenson  .422 

Lineker  v.  Ayeshford  239 

Lines  V.  Smith  211,  458 

Linn  v.  Crossing  12 

Liotard  v.  Graves  80 

Lipford  V.  Railroad  Co.  636 

Lipscouibe  r.  Holmes  539 

Lif)trot  r.  Holmes  306  n 

Lister  v.  Baxter  67 

Litchfield  r.  Cudworth  75 

Litt  V.  Cowley  477 

Littell  V.  Marshall  216 

Little  V.  Dawson  532 
Little  Miami  R.  R.  Co.  v.  Stevens       529 

Littlcfield  V.  Slice  359,  361 

Littlcjohn  v.  Jones  645 

Livaudais  r.  Fomi  337 

Livingston  r.  Dugan  365 

r.  Roosevelt  156,  164 

Lloyd  V.  Archbold  30 

r.  Crispe  385 

V.  Howard  212 

V.  Johnson  246 


VOL.   I. 


F 


Ixii 


INDEX   TO   CASES    CITED. 


Lloyd  V.  Lloyd 

556 

Lowery  i\  Scott 

229 

V.  West  Branch  Bank 

50 

Lowtield  v.  Bancroft 

25 

Lobdell  V.  Baker 

50 

Lowndes  v.  Lane 

414 

V.  Hopkins 

447 

Lowry  v.  Adams 

494 

503 

Locke  V.  United  States 

511 

513 

V.  Gwilford 

98 

Lockhart  v.  Barnard 

23 

V.  Houston 

285 

Lockwood  V.  Ewer 

602 

V.  Steamboat  Portland 

702 

V.  Laskell 

702 

Lowrey  v.  Murrell 

221 

V.  Thomas 

303 

Lowther  v.  Lowther 

75 

Loder  v.  Chcsleyn 

370 

Loyd  V.  Preshlield 

158 

Loeschman  v.  Machin 

606 

V.  Lee                             358 

361 

367 

V.  Williams 

484 

Lubbock  V.  Inglis 

621 

Logan  V.  Birkett 

299 

Lucas  V.  Bank  of  Darien 

145 

V.  Bond 

160 

V.  Beach 

123 

V.  Hall 

425 

V.  Beale 

23 

V.  Mathews 

606 

V.  De  La  Cour 

49 

Londonderry  v.  Chester 

560 

563 

V.  Dorrien 

240 

London  Gas  Light  Co.  v.  Nichols 

121 

V.  Godwin 

388 

530 

Long  V.  Colburn 

48,  58 

V.  Groning 

79,  80 

V.  Hicks 

459 

V.  Novosilieski 
V.  Worswick 

532 

V.  Pi-eston 

490 

440 

Longley  v.  Griggs 

36 

Lucena  v.  Craufurd 

44 

Ldngridge  v.  Dorville 

364 

367 

Lucey  v.  Ingram 

90 

Lonsdale  v.  Brown 

238 

367 

Luckett  V.  Tounsend 

602 

i\  Littledale 

88 

Lucy  V.  Levington 

109 

110 

Loomis  V.  Marshall 

136 

ex  parte 

364 

V.  Newhall                 259, 

260 

360 

Ludlow,  Mayor  of,  v.  Charlton 

118 

V.  Pierson 

163 

V.  McCrea 

12 

Loop  V.  Loop 

266 

Luff  V.  Pope 

223 

Loraine  v.  Cartwright 

69 

Lukens's  Appeal 

103 

Lord  Andley's  Case 

46 

Lumley  v.  Gye 

532 

Lord  V.  Baldwin 

175 

176 

Lundie  v.  Robertson 

225 

V.  Bigelow 

428 

Lunn  V.  Thornton 

439 

4.54 

V.  The  Ocean  Bank 

216 

Lunsford  v.  Coquillon 

345 

Lord  Camoys  v.  Scuit 

592 

Lunt  V.  Adams 

222 

Lord  Chedworth  v.  Edwards 

76 

V.  Stevens 

24 

162 

Lord  Clermont  v.  Sasburg 

414 

Lupton  V.  White 

7 

5,85 

Lord  Hardwicke  v.  Vernon 

76 

Lush  V.  Russell 

526 

Lord  Lexington  v.  Clarke 

380 

Lyell  V.  Sanbourn 

43 

Lord  Londsdale  v.  Littledale 

88 

Lylly's  Case 

262, 

533 

Lord  Southampton  v.  Brown 

391 

Lynch  v.  Commonwealth 

97,  98 

Lord  St.  John  v.  Lady  St.  John 

298 

V.  Nurdin 

700 

701 

Lorent  v.  Kentring 

675 

Lynde  v.  Budd 

273 

Lorymer  r.  Smith 

438 

Lyndon  v.  Gorham                 175, 

176, 

177 

Losee  v.  Dunkin 

217 

Lynn  v.  Bruce 

27 

Louisiana    Bank    v.    Kenner's 

Suc- 

Lyon  V.  Mells 

708, 

718 

cession 

173 

V.  Reed 

429 

Louisiana  State  Bank  v.  Senecal 

66 

V.  Smith 

623 

Louisville  &  Charleston  E.  R.  Co.  v. 

v^  Sundius 

222 

Letson 

117 

Lyons  v.  Barnes 

450 

Lovell  V.  Briggs 

115 

V.  Martin 

87 

Lovelock  V.  King 

541, 

617 

Lysatt  V.  Bryant 

236 

Lovett  V.  Hobbs 

643, 

649 

Lysney  v.  Selby 

463 

Lovie's  Case 

110 

Lytic  V.  Pope 

36 

Low  V.  Barchard 

362 

Lytton  V.  Lytton 

278 

V.  Blodgett 

496 

Lowe  V.  Beckwith 

501 

M. 

V.  Griffiths 

246 

V.  Moss                           637, 

660, 

675 

Maanss  v.  Henderson 

41 

V.  Peers 

453, 

556 

Mal)bett  v.  White 

155 

V.  Weatherley 

366 

INIaberly  v.  Turton 

256 

Lowell  V.  Boston  &  Lowell   R 

.   R. 

Macbeth  v.  Haldimand 

105 

Co. 

90,  93 

Mac  Ghee  v.  Morgan 

362 

I^^)EX   TO   CASES   CITED. 


Ixiii 


Mackay  i\  Blooilgood 

»•.  Holland 
Mackersy  v.  Ramsays 
Mackinley  v.  McGregor 
Mackintosh  v.  Barber 

V.  Mitcheson 
Macombcr  i'.  Parker 
Maclean  v.  Dunn  43,  47,  447, 

Macon  v.  Slieppard 
Mactier  v.  Frith 
Mad  River,  &c.,  R.  R.  Co.  v.  Fulton 

ilagee  v.  Atkinson 
Magill  V.  Hinsdale 

V.  MciTJe 
Magnay  v.  Edwards 
Magniac  v.  Thompson 
^laggs  r.  Ames 
Magruder  v.  Union  Bank 
Mahew  v.  Boyce 
Mahony  v.  Ashlin 

Mahoney  v.  Ashton  331, 

Maigley  i:  Haner 
Mainwariug  v.  Brandon 

V.  Leslie 

V.  Newman 

V.  Sands 
Mair  v.  Glennie 
Makarell  v.  Bachelor 
Makepeace  r.  Coutes 
Malbon  v.  Southard  205, 

Maleverer  c.  Redshaw 
Mallam  v.  Arden 
Mallory  v.  Willis 
Mallough  r.  Barber 
Maltl)y  r.  Harwood 
Man  V.  Shitthcr 
Manby  v.  Long 

V.  Scott  245,  290,  294, 

Manchester  Bank  v.  Fellows  97, 

Manchester  Iron  Co.  v.  Sweeting 
Mandeville  r.  Welch  188, 

Manella  v.  Barry 
Maney  v.  Killough 
Mangles  i'.  Dixon 
Manning  v.  Manning 

V.  Wells  624, 

Manscll  r.  Burredge 
Manson  v.  Felton  312, 

Mantz  ".  Goring 
Maples  V.  Wightman 
Marden  i'.  Babcock 
Mardis  v.  Tyler 
Margaret  Podtrer's  Case 
Margctson  v.  Wright 
Maria  V.  Surbaugh         326,  327,  346, 
Marie  r.  Avart 

Marie  Louise  r.  Marot  329,  331, 

Markham  v.  Brown 
r.  Jones 
Markle  v.  Hatfield 
Markman  i\  Close 


94 
214 

42 
388  I 

76 

67 
441 
475 
378 
407 
720, 
722 

54 

48 
144 

23 
359 
494 
224 
702 
238 
346 
356 

74 
295 
141 
295 
133 
246 

26 
206 
381 
428 
614 

74 
532 

80 
117 
297 
233 
571 
191 

69 
443 
196 
103 
628 

12 
315 
425 
244 
443 
361 

46 
4,59 
347 
339 
345 
627 
151 
220 
334 


Marlow  v.  Pitfield  246,  293 

Marquandf.  N.  Y.  Man.  Co.  131, 171, 173 


Marr  v.  Johnson 
Marriott  v.  Shaw 

V.  Stanley 
Marryat  v.  Broderick 
Marsh  v.  Home 

V.  Hutchinson 

V.  Keating 

V.  Rulesson 

V.  Ward 
Marshall  v.  Broadhurst 


'11, 


V.  Fall 
V.  Marshall 
V.  Mitchell 
V.  Button 
V.  Smith 

Marston  v.  Allen 
r.  Hobbs 

Marten  v.  Mayo 

Martin  v.  Baker 

v.  Black's  Ex'rs 
V.  Boyd 
V.  Chauntry 
V.  Cotter 
V.  Martin 
V.  Mathiot 
V.  Mayor,  &c 
V.  Stribling 
V.  Temperley 
V.  Winslow 
r.  Wright 

Martin's  Heirs  v.  Martin 

Martindale  v.  Smith 

Martini  r.  Coles 

Marvin  i\  Trumbull 

Marwick,  iit  re 

Marj'  V.  Brown 

Marzetti  v.  Williams 

Mascal's  Case 

Mason  v.  Chambers 
V.  Connel 
V.  Dennison 
V.  Faniell 
V.  Joseph 
V.  Lickbarrow 
V.  Martin 
V.  Thompson 
V.  Wright 

Masscy  v.  Davies 

Massitcr  v.  Cooper 

Master  v.  Miller 

Mateer  i'.  Brown 

Mather  v.  Ney 

Matilda  c.  Crenshaw 

Matiiews  i'.  Aikin 

Matthews  V.  Bliss 
V.  Milton 
V.  Parker 

Mathewson  v.  Clarke 

Mathewson's  Case 

Matlock  V.  Gibson 


ro. 


216 
176 
702 

58 
719 
306 

44 
522 

II 

109,  111 

484 

171 

225,  226,  231 

300,  306 

13 
212 
200 
276 
110 
366 
206 
208 
415 
300 
449 
623 
497 
89,  90 
224 
509,  532 
564 
479 

80 

130 

180 

345 

69,  74 

200 

421 

131,  143,  171 

274 

107 

72,  73 

447 

75 

624,  628,  629,  631 

246 


of  Brookh-n 


624, 


•,  85 
697 
195 
625 
565 
332 
495 
462 
499 
474 
131 
12 
354 


Ixiv 


INDEX   TO    CASES   CITED. 


Matthcwson  v.  Johnson  243,  269 
Maud  V.  Watcrhouse  368 
Maiiilslay  v.  Le  Blanc  122,  123 
Maury  v.  Talmadge  691,  693 
Maving  v.  Todd              622,  653,  708,  709 
Mawson  v.  Blane  270 
Maxwell  v.  Jameson  190 
V.  Mcllvoy  623 
Maxim  v.  Morse  308 
May  V.  Calder  114 
V.  Coffin  363 
V.  May  20 
V.  Trinceton  701 
V.  Skey  293 
V.  Woodward  12,  29,  31 
Mayliin  v.  Railroad  Co.  651 
Mavdew  v.  Forrester  33 
Ma'yfield  v.  Wadsley  380 
Mayhew  v.  Boyd  5lA 
V.  Crickett  36,  162 
V.  Eames  66 
V.  Mayhew  565 
Jlayor  v.  Humphries  699 
V.  Johnson  241 
Mayor,  &c.,  of  Baltimore  v.  Williams  363 
Mayor  of  Berwick-upon-Tweed  v.  Os- 
wald 505 
Mayor,  &c.,  of  New  York  v.  Bailey        93 
Mayor  of  ThetforcFs  Case  117 
McAllester  v.  Sprague  24,  27,  28 
McArtliur  v.  Scars         635,  636,  645,  647 
McAuley  v.  Billinger  379 
McBride  ?;.  Hagan  162 
V.  McClelland  443 
MeCall's  Estate  104 
Case  103 
V.  Clayton  48 
V.  Flowers  605 
McCandlish  v.  Newman  440 
McCartee  v.  Teller  277 
McCarthy  v.  Goold  194 
MeCarty  v.  Emlen  177 
V.  Bleyins  438 
McClintick  v.  Cummins  322 
McCallen  v.  Adams  302 
McClane  v.  Fitch  233 
McClure  v.  Richardson  641 
McClures  v.  Hammond  641 
McCoU  V.  Oliver  140 
McComb  V.  Wright  95 
M'Combie  v.  Davies  79,  80 
McConnell  v.  Gibson  75 
V.  Hector  173 
McCormick  v.  Connoly  542 
V.  Trotter  208 
McCoy  V.  Artchcr  458 
V.  Huffman  263 
M'Cready  v.  Freedly  12 
McCreight  v.  Aiken  311,  313 
McCrillis  v.  Bartlett  312,  314 
V.  How  261 
McCuUoch  V.  Dashiell  180 
V.  Eagle  Ins.  Co.         406,  407 


McCuUoch  V.  McKee  46 

McCullough  V.  Sommerville  160 

McCurry  v.  Hooper  313 

McCutchen  v.  Marshall  347 

V.  McGahay      288,  293,  294, 

295,  297 

McDaniel  v.  Cornwell  306 

V.  Flower  Brook  Manuf. 

Co.  495 

McDaniels  v.  Robinson  625 

McDermot  v.  Laurence  130 

McDoal  V.  Yeomans  493 

McDonald  v.  Edgerton  627,  628,  630 

V.  Eggleston  94 

V.  Hewett  441 

V.  Magruder  36 

V.  Morton  313 

V.  Pope  429 

McDowall  V.  Wood  306 

McDowle's  Case  533 

McElroy  v.  Nashua  &  Lowell  R.  R. 

Corp.  700 

McEyers  v.  Mason  222 

McEwan  v.  Smith  476,  489 

McFarland  v.  Newman  464 

McGahay  v.  Williams  297 

McGan  v.  Marshall  244 

McGee  v.  Metcalf  513 

McGill  V.  Rowand  649,  721,  722 

McGinn  v.  Shaeffer  276 

McGinnis  v.  Foster  306  n 

McGoon  V.  Aukeny  580 

McGrath  v.  Robertson  306 

McGregor  v.  Penn  463 

McGruder  v.  Bank  of  Washington       229 

McGuire  v.  Newkirk  502 

V.  Ramsey  129 

McHenry  v.  Duffield  58 

V.  Railway  Co.  658 

Mclntyre  v.  Bowne  658 

V.  Carver  617 

V.  Parks  440 

Mclyer  v.  Humble  1 64 

V.  Richardson  402,  501 

McJilton  V.  Loye  196 

McKay  v.  Bryson  532 

McKenna  v.  George  33,  35 

McKenzie  v.  Fort  460 

V.  Hancock                  •  475 

V.  McLcod  426 

V.  Steycns  251 

McKinley  v.  Watkins  366,  374 

McKinney  v.  Alvis  190 

V.  Neil  691,  696,  699 

V.  Pinckard  415 

McKnight  v.  Hogg  262 

McLanc  u.  Sharpe  702 

McLaren  v.  Watson  493 

McLauchlin  v.  Lomas  605,  609 

McLellan  v.  Cumberland  Bank  24 

McLemore  v.  Powell  236 

McManus  v.  Crickett  87,  88 

McMillan  v.  Vanderlip  522 


INDEX  TO   CASES   CITED. 


Kv 


McMinn  v.  Eichmonds 

244, 

261 

Messer  v.  Woodman 

441 

McNairy  v.  Bell 

227 

Messier  v.  Amery 

81 

McNeill  V.  McDonald 

214 

Metcalf  V.  Bruin 

507 

V.  Reid 

132 

,374, 

385 

V.  Hess 

626 

McPherson  v.  Eathbone 

152 

Metcalfe  ik  Richardson 

235 

i\  Rees 

360 

V.  Shaw 

289 

McQueen  v.  Favquhar 

417 

Meux  V.  Humphrey 

163 

Mead  v.  Small 

226 

Meyer  v.  Haworth 

361 

V.  Young 

212 

Meynell  v.  Surtees 

399 

Mechanics'  Bank  v.  Bank  of  Colum- 

Meyrick v.  Anderson 

112 

bia 

48 

Michaell  v.  Stockworth 

23 

V.  Griswold 

226 

Michigan  Central  E.  R.  Co. 

V.  Ward  665, 

V.  Merchants' 

Bank 

74, 

670 

586 

Michoud  V.  Girod 

75 

V.  New  York  &  N. 

Micklewait  i\  Winter 

602 

H.  R. 

R.  Co.  42 

241 

Mickles  v.  Colvin 

217 

Mechanics'  &  Traders'  Bank  v. 

Gor- 

Midgley  v.  Lovelace 

23,  201 

don 

588, 

654 

Middiebrook  v.  Corwin 

431,  432 

Mechelen  v.  "Wallace 

379 

Middlebury  College  v.  Chandler           245 

Medbury  i\  Watrous 

263 

2G8, 

523 

Middlemore  v.  Goodale 

199 

Medina  v.  Stoughton 

456 

Middleton  v.  Welles 

75 

Meech  v.  Smith 

58 

Middleton  Bank  v.  Jerome 

206 

Meek  i'.  Atkinson 

320 

Milbum  V.  Codd 

139 

Meert  v.  Moessard 

188 

Milbran  v.  Gayther 

151 

Megjrs  V.  Binns 

98 

Jliles  V.  Cattle 

633 

Melancon  v.  Robichaux 

567 

V.  Dumford 

109 

Meldrum  v.  Snow 

450 

V.  Gorton 

483,  490 

Meilerish  v.  Eippin 

235 

Milford  V.  Worcester 

558,  563 

Mellish  V.  Motteaux 

473 

Miller  v.  Adsit 

579 

V.  Simeon 

239 

V.  Baker 

433 

Melodv  V.  Chandler 

455 

V.  Bartlet 

136 

Melville  V.  DeWolf 

527 

V.  Chetwood 

414 

Menard  v.  Scudder 

501 

503 

V.  Drake              357, 

373,  391,  449 

Menetone  r.  Athawes 

611 

V.  Gaston 

493 

Menifee's  Adm'rs  v.  Menifee 

306  n 

V.  Goddard 

523 

Mentz  ('.  Eenter 

286 

V.  Hackley 

238 

Mercantile  Mut.  Ins.  Co.  v.  Chase 

704 

V.  Manice 

158 

Mercer  v.  Gihnan 

345 

V.  Race                206, 

214,  239,  240 

V.  Whall 

526 

V.  Sims 

262 

Merchants,  &c.,  r.  Grant 

270 

V.  Smith 

490 

Merchants'  Bank  /;.  New  Jcrsev  Steam 

V.  Steam  Nav.  Co. 

672 

Nav.  Co. 

706 

V.  Stem 

513 

Merle  v.  Andrews 

324 

V.  Stewart 

503,  505 

V.  Wells 

508 

V.  Travers 

421 

Merewetiier  v.  Shaw 

555 

V.  Whittier 

193 

Merriam  v.  Bay  ley 

308 

Milligan  v.  Wedge 

89 

V.  The  Hartford, 

&c., 

Eail- 

Miiliken  v.  Brown 

23,  24 

road  Co. 

650 

6.'J4 

Mil  Ion  V.  Salisbury 

602 

i\  Wilkins 

271 

Mills  V.  Ball 

484 

Merrick's  Estate 

104 

V.  Barber 

15.5,  156,  160 

Merrill  r.  Smith 

286 

V.  Bank  of  U.  S. 

73,  230,  2.55 

Merrimack  Co.  Bank  v.  B 

•o-s\-n 

506 

V.  Dennis 

114 

Merritt  v.  Ciagborn 

624 

625 

V.  Graham 

266 

V.  Johnson 

612 

V.  Hyde 

35 

V.  Seaman 

111 

V.  Hunt 

418 

Mershon  v.  Hobensack 

634 

,  636 

639 

V.  Lee 

364,  365 

Merrywcatlier  v.  Nixan 

37 

V.  Oddy 

416 

Merwin  v.  Butler 

643 

659 

V.  Ladiirookc 

16,  30 

Mertens  v.  Adcock 

447 

V.  Wynian 

259,  360 

V.  Winnington 

238 

Millward  ik  Littlewood 

548,  550 

Messenger  v.  Clarke 

286 

Milne  v.  Huber 

382 

V.  Southey 

235 

Milncr  v.  Harewood 

277 

Ixvi 


INDEX   TO    CASES   CITED. 


Milner  i\  Milnes 

286 

Montg 

omery  County  Bank  v.  AI- 

V.  Tucker 

475! 

hi 

ny  City  Bank 

222   224 

Milnes  v.  Cowley 

362 

Monys 

V.  Leake 

'  381 

Milton  V.  Mosher 

95, 

4S3 

Moody  V.  Brown 

441 

V.  Rowland 

474 

V.  Pavne 

178 

Mima  Queen  v.  Hepburn 

331 

V.  Thrclkcld 

212 

Minis  V.  Mitchell 

605 

Moon 

V.  Guardians  of  Witney 

Minard  v.  Mead 

48, 

293 

Union 

72 

Mindeu  v.  Cox 

257 

Mooney  v.  Lloyd 

539 

Miner  v.  Hoyt 

215 

Moor 

V.  Veazie 

193 

INIinctt  V.  Forrester 

61 

Moore 

V.  Abernathy 

273 

Minnit  v.  Whincry 

142 

157 

V.  Barthop 

444 

Mintum  v.  Seymour 

415 

V.  Campbell 

401 

Miranda  v.  City  Bank  of  New 

V.  Coffield 

226 

Orleans 

73 

V.  Evans 

707 

Misncr  v.  Granger 

470 

V.  Fitzwater 

364 

Missroom  v.  Waldo 

467 

V.  Gano 

141 

Mitchel  V.  Ede 

486 

V 

V.  Hart 

555 

Mitchell  V.  Beal 

443 

V.  Hill 

190 

V.  Gotten 

513 

V.  Inhabitants  of  Abbott 

702 

V.  Dall 

142 

V.  Moore 

75 

V.  Degrand 

233 

V.  Sample 

178 

V.  Fuller 

212 

V.  Viele 

309 

V.  Gilo 

437 

V.  AVilson 

58,  71 

V.  Kingman 

311 

Morville  v.  The  Great  Western 

V.  Mims 

63 

,  605 

Railway  Co. 

715,  718 

V.  Penn.  R.  R.  Co. 

529 

Moosa  V.  AUain 

346 

V.  Roulstone 

152 

Moravia  v.  Levy 

140 

V.  Smith 

382 

More 

V.  Mayhow 

64 

V.  St.  Andrew's  Bay 

Land 

Mores 

V.  Conhara 

593 

Co. 

47 

V.  Mead 

460 

V.  "Warner 

no 

,  200 

Moreton  v.  Hardern 

161 

V.  Williamson 

356 

Morgan  v.  Congdon 

617 

Mitford  V.  Wakot 

238 

V.  Fencher 

457 

Mixer  v.  Cohurn 

389 

,  460 

V.  Stell 

59 

Mizcn  1-.  rick 

302 

V.  Thames  Bank 

286 

Moar  *'.  Wriglit 

195 

V.  Thomas 

111 

Moblcy  r.  Loml)at 

176 

V.  Woodworth 

236 

Moddewell  v.  Keever 

131 

,  155 

V.  Yarborough          543, 

544,  549 

Moderwell  ?\  Mullison 

126 

Morisone  v.  Arl)uthnot 

555 

Mock  V.  Kelley 

540 

Moritz  V.  Melhorn 

544 

Mockbee  v.  Gardner 

458 

Morley  v.  Attenborough 

456,  457 

Mockman  v.  Shepherdson 

526 

I'.  Boothby 

3.54,  497 

Motfat  v.  Parsons 

42 

V.  Polhill 

109,  110 

V.  Smith 

422 

Morrill  v.  Aden 

264 

Moggridge  v.  Jones 

38 

V.  Wallace 

464 

Molony  v.  Kernan 

75 

Morris  v.  Clcasby                        78,  79,  390 

Molson  V.  Hawley 

216 

V.  Edgington 

422 

Molton  V.  Camroux 

312 

V.  Husson 

228,  234 

Moncrief  v.  Ely 

260 

V.  Lee 

208 

Mondel  v.  Steele 

388 

V.  Martin 

295 

Monk  V.  Clayton 

41,  42 

V.  Miller 

559 

Monroe  v.  Conner 

157 

V.  Morris 

180 

Montacute  v.  Maxwell 

554 

V.  Norfolk 

286 

Montague  v.  Benedict 

289 

,  292 

I'.  Rcdfield 

537 

V.  Es]iinnasse 

288 

r.  Summcrl 

75 

V.  Perkins 

205 

Morrison  v.  Blodgett      175,  178 

179,  180 

Montany  v.  Rock 

453 

V.  Davies 

637 

Monte  AUegre,  The 

52 

V.  l^eaderick 

194 

Montefiori  v.  Montefiori 

555 

MoiTOW  V.  Waltz 

402 

Montesquieu  v.  Sandys 

75 

Morse  v.  Bellows 

162,  195 

Montgomery  r.  Dillingham 

512 

V.  Crawford 

311 

IXDEX   TO    CASES    CITED. 


Ixvii 


Morse  v.  Earl 

286  1 

Murdock  v.  Harris 

431 

V.  Koyal 

75 

Murphy  v.  O'Sliea 

75 

V.  Slue                          639, 

646, 

720 

Murray  v.  Barlee 

289 

V.  Welton 

258 

V.  Blatchford 

22 

V.  Wilson 

134 

V.  Bogcrt     35,  131, 

137, 

139,  140 

Mortimer  v.  McCallan 

439 

V.  CaiTCt 

386 

V.  Mortimer 

278 

V.  East  India  Co. 

41 

Mortimore  v.  Wright    249,  250, 

251, 

260, 

V.  House 

•       97 

371 

V.  Judah 

216 

Mortlock  V.  Buller 

362, 

415 

V.  Lylbum 

196 

Morton  v.  Fenn 

551 

V.  Mumford 

172,  173 

V.  Lamb 

449 

V.  Murray 

180 

V.  Westcott 

234 

Murrill  v.  Ncill 

174,  180 

Moseley  v.  Boush 

193, 

194 

Murry  v.  Smith 

450 

Moses  v.  Boston  &  Maine  R.  R. 

653, 

Muschamp  v.  L.  &  P.  Junct 

.  Rail- 

654 

710 

way  Co.                687, 

688, 

689,  690 

V.  Fogartie 

289 

Musier  i\  Trumpbour 

140 

I'.  Macfcrlan 

386 

414 

Mussey  v.  Rayner 

501 

V.  Norris 

641 

Mutford  ?'.  Walcot 

238 

V.  Mead 

467 

471 

Myers  v.  Edge 

494,  507 

V.  Stevens 

263 

523 

V.  Sanders 

269 

Mosdell  V.  Middleton 

381 

I'.  United  Guarantee  &c.  Co.      198 

Moss  V.  Hall 

236 

513 

Myler  v.  Fitzpatrick 

76,  678 

V.  Livingston 

48 

r.  Jiossie  Lead  Mining  Co 

44 

V.  Sweet 

450 

N. 

Mosteller  v.  Bosh 

214 

Moston  V.  Burn 

366 

Kailor  v.  Bowie 

226,  229 

Motley  V.  Motley 

76 

Napier  ;?.  McLeod 

22 

Motram  r.  Hcyer 

477 

484 

V.  Schneider 

239 

Mott  i\  Comstock 

302 

Nash  ?'.  Drew 

51 

Motteaux  v.  London  Ass.  Co. 

193 

V.  Harrington 

233 

Mottram  v.  Hcyer 

484 

485 

V.  Russell 

361 

Mouldsdale  v.  Jiirchall 

370 

Nashville  &  C.  R.  R.  Co.  v 

Messino  691, 

Moulton  V.  Trask 

523 

700 

Mountford  v.  Gilison 

112 

National  Exchange  Co.  v.  Drew 

64 

V.  Scott 

64 

National  Bank  v.  Norton 

66,  144 

Mountney  v.  Collier 

428 

Fire  Ins.  Co.  v.  Loomis         418 

Mountstcphen  v.  Brooke 

162 

Naylor  v.  Dcnnic 

477,  490 

Mouse's  Case 

676 

V.  Moody 

511,  512 

Mouton  r.  Noble 

355 

Navulshaw  v.  Brownrigg 

51,  80 

Mowatt  V.  Rowland 

144 

Ncal  V.  Farmer 

326 

Mowrv  r.  Todd 

195 

,  198 

V.  Saundereon 

635 

Mozlcy  V.  Tinkler                   376 

,  402 

,  501 

Ncale  V.  Tnrton 

123,  141 

Mudd  r.  Har|)er 

218 

V.  Wyllic 

425 

Mulilcr  V.  IJoblcns 

79 

Neate  v.  Ball 

4,50 

Muihiian  v.  D'Equino 

221 

Ned  V.  Beal 

347 

Muirlicad  v.  Kirkpartrick 

365 

,  367 

Ncel  i\  Deens 

386 

Mullicnin  v.  llannuni 

227 

Neelson  v.  Sanhorno 

496 

Mullen  IK  Enslcy 

608 

Negro  Cato  v.  Howard 

339 

V.  Gilkinson 

524 

George  r.  Corso 

343 

Mullick  V.  Kadakissen 

221 

Harriet  v.  Ridgeiy 

346 

Muiuford  V.  Bowen 

425 

Jack  V.  Hopewell 

347 

V.  Brown 

541 

Ncllis  V.  Clark 

414 

V.  McPherson 

472 

Nelson  V.  Boynton 

499 

Munger  r.  Tonawanda  R.  Co. 

701 

r.  (\)wing 

52 

Munn  ('.  Baker 

720 

(■.•I>loyd 

152 

)•.  Conniiission  Co. 

50 

V.  Macintosh 

588 

Mtinro  V.  l)c  Clicmant             59 

,304 

,  305 

V.  Powell 

53 

Muinoe  v.  Cooper 

206 

V.  Serlc 

368,  369 

r.  Lcacli 

702 

V.  Suddarth 

319,  321 

Munsey  v.  Goodwin 

535 

Nerot  V.  I'urnard 

170 

Murch  V.  Concord  R.  R.  Coi-p. 

701 

V.  Wallace 

357 

,  382,  385 

Ixviii 


INDEX   TO    CASES    CITED. 


Neshit  V.  Burry  441 

Nesmith  r.  Dveing  84 

Nettles  V.  Kailroiid  Co.  658 

Neville  v.  Wilkinson  555 

Nevins  v.  Townshend  217 

New  V.  Swain  441 

New  Bedford  Turnpike  v.  Adams         378 
Newbcggin  v.  Pillans  306 

Newbury  i'.  Armstrong  375 

Ncweomb  v.  Brackett  450 

V.  Clark  48 

Newel  V.  Keith  530 

Newell  V.  Hanier  573 

V.  Hill  393 

N.  E.  Marine  Ins.  Co.  v.  De  Wolf  47,  49 
Newhall  v.  Vargas        477,  478,  479,  482, 

485,  488 
New  Hamps.   Savings  Bank  v.  Col- 
cord  366,  512 
New  Haven  County  Bank  v.  Mitchell  501, 

506 

New  Jersey  Bal.  Co.  v.  Cook  58 

New  Jersey  R.  R.  Co.  v.  Kernan  700 

Newman  v.  Bagley  175 

V.  Bean  136,  179 

V.  Newman  381 

V.  Washington  539 

New  Hope  &c.  Co.  v.  The  Phoenix 

Bank  66 

N.  J.  Steam  Nav.  Co.  v.  Merchants 

Bank  705,  710,  718' 

New  Orleans  R.  R.  Co.  v.  Mills  225 

New  I'hanix,  The  528 

Newport  r.  Cook  256 

Newry  &  Enniskilen  R.  R.  v.  Coombe  279, 
280,  281,  282 
Newsom  v.  Thornton  239,  478,  487 

Newsome  v.  Coles  166 

Newton  v.  Harland  434 

New  York   Central  Ins.   Co.  v.  Na- 
tional Prot.  Ins.  Co.  64 
N.  Y  Fire  Ins.  Co.  v.  Bennett               162 
New  York  &  E.  R.  v.  Skinner              701 
New  York  &  N.  Haven  R.  R.  Co.  v. 

Pixley  373 

Nichol  (*'.  Bate  233 

V.  Martyn  532 

Nicholas  v.  Chamberlain  432 

Nichole  w.  Allen  251,371 

Nichols  V.  Coolahan  520,  527 

V.  Haywood  23 

V.  McDowell  512 

V.  Norris  235 

V.  Poulson  541 

V.  Pool  226 

V.  Raynbrcd  373,  374 

Nicholson  v.  Chapman  580 

V.  May  369 

V.  Leavitt  160 

V.  Revill  162,  237 

r.  Willan  704,711 

Nickells  v.  Atherstone  429 

Nickerson  v.  Easton  263 


NickoLson  v.  Knowles 
Nickson  v.  Brohan 
Neidelet  v.  Wales 
Niell  V.  Morlev 


678 

41,  50 

426 

312,  313 


Nightingale  v.  Withington    257,  268,  276 
Nisbet  V.  Patton  161 

Nix  V.  Olive  484 

Nixon  V.  English  215 

Noble  V.  Smith  358 

Nokc  V.  Awder  201 

Noke's  Case  .  422 

Noland  v.  Clark  592 

Nolte,  ea;  joarte  162 

Norris  V.  Hall  191 

V.  Le  Neve  75 

N.  A.  Coal  Co.  V.  Dyett  289 

North  V.  Wakefield  26 

NoiTh  British  Ins.  Co.  v.  Lloyd  497 

North  River  Bank  v.  Aymar  42,  66 

North   Western    Railway  v.   McMi- 

chael  279,  280,  281,  282 

North  Western  Railway  i'.  Whiuray     504 

Northampton  Bank  v.  Pepoon  49 

Northern  v.  Williams  670 

Northey  v.  Field  ,477,  484 

Norton  v.  Coons  36,  37 

V.  Eastman  501 

V.  Fazan  295,  297 

V.  Pickering  233 

V.  Rose  196 

V.  Seymour  97 

V.  Symmes  381 

V.  Waite  217 

V.  Woodruff  614 

Norway   Plains   Co.  v.  Boston  & 

Maine  R.  R.  648,  664,  665 

Norwood  V.  Stevenson  305 

Nott  V.  Douming  163 

Nowlan  v.  Ablett  518,  520 

Noyes's  Ex'r  v.  Humphreys  380 

Nunn  V.  Wilsmore  301 

Nurse  v.  Craig  301 

Nutbrown  v.  Thornton  414 

Nutting  V.  Conn.  River  R.  R.  Co.        690 


O. 


Oades  v.  Woodward  62 

Oaks  I'.  Weller  503 

Oakley  v.  Aspinwall  133 

Oates'r.  Cafltin  335 

?;.  Hudson  321,322 

Obrian  v.  Ram  285 

O'Brien  r.  Currie  262 

Ocean  Ins.  Co.  v.  Rider  '       539 

Odiorne  v.  Maxcy  41,  80 

Odin  V.  Greeuleaf  34 

Offiy  V.  Ward  391 

Otiley  and  Johnson's  Case  32 

Offut  V.  Stout  235 

Ogden  V.  Astor  136 

V.  Cowley  225,  .229 


DTDEX   TO   CASES   CITED. 


Ixix 


Op^den  V.  Raymond 

58 

Owen  V.  White 

252 

Ogilvie  V.  Foljambe 

416 

ex  parte 

131 

Ogle  V.  Atkinson 

621 

Owens  V.  Collins 

126 

O'Keson  v.  Barclay 

364 

V.  Dickenson 

289 

Oldaker  v.  Lavender 

173 

Owing's  Case 

311 

Oldknow,  ex  parte 

180 

Owings  V.  Hull 

46 

Oliver  v.  Bank  of  Tenn. 

225 

V.  Low 

195 

V.  Court 

75 

Owston  V.  Ogle 

30 

V.  Houdlet 

276 

Oxford  Bank  v.  Haynes 

514 

V.  Munday 

224 

V.  Lewis 

513 

V.  Oliver 

298 

Ozeas  V.  Johnston 

140 

V.  Woodroffe 

243 

,  261 

Ollivant  v.  Bajley 

469 

,  475 

P. 

Olmstead  v.  Beale 

519 

,  522 

,  526 

Olmsted  V.  Hotailing 

63 

Packard  v.  Gctman 

654 

Oneida  Manuf.  Co.  v.  Law 

•ence 

467 

V.  Richardson 

6 

Society  v.  Lawrence 

463 

Padwick  v.  Turner 

230 

Ongley  v.  Chambers 

421 

Page  V.  Carpenter 

175, 179 

,  180 

Onondaga  County  Bank  v. 

Bates 

237 

ex  parte 

180 

V. 

De 

Puy 

158 

Paget  V.  Perchard 

443 

Onslow  V.  Eames 

474 

Pain  V.  Packard 

510 

,  511 

V.  Orchard 

25 

Paine  v.  Cave 

418 

Ontario  Bank  r.  Lightbody 

221 

Palliser  v.  Ord 

72 

V.  Mumford 

193 

194 

Palmer  v,  Andrews 

549 

V.  Worthington 

217 

V.  Edwards 

200 

Oppenheim  v.  Russell 

485 

r.  Merrill 

195,  197 

,  198 

Oppenheimer  v.  Edney 

722 

V.  Neavc 

555 

Orange  Co.  Bank  v.  Brown 

713 

720 

V.  Pratt 

208 

Orcutt  V.  Nelson 

445 

V.  Richards 

212 

Ord  V.  Fenwick 

111 

V.  Sparshott 

27 

Ordinary  v.  Wherry 

269 

V.  Stephens 

55,  58 

Orear  v.  McDonald 

22.3 

,  224 

225 

Palo  Alto,  The 

407 

Orniond  v.  Hutchinson 

76 

Paradine  v.  Jane 

525 

661 

Orms  i\  Ashley 

356 

Paramour  v.  Yardly 

107 

Ormston  v. 

228 

Pardee  v.  Drew 

720 

Orr  V.  Hodgson 

324 

Parham  v.  Randolph 

417 

V.  Union  Bank  of  Scotland 

220 

Paris  V.  Stroud 

245 

Orvis  V.  Kimball 

270 

Parish  v.  Crawford 

658 

Osborn  v.  Governors  of  G 

uy's 

Hos- 

V.  Stone 

379 

pital 

532 

Park  V.  Hamond 

74 

V.  U.  S.  Bank 

97 

Parke  v.  Eliason 

444 

Osborne  v.  Brennan 
V.  Bremar 

151 

417 

328 
701 

V.  Adams 

V.  Crosbera 

29 

0.  Baker 

276 

V.  Harper 

20,  23,  35 

V.  Barker 

164, 166 

496 

V.  Rogers 

397 

V.  Brancker 

58 

Osgood  V.  Franklin 

362 

414, 

415 

V.  Carter 

360 

V.  Lewis 

463, 

465 

V.  Ellis 

35 

Osmond  v.  Fitzroy 

314 

r.  Flagg 

637, 

645 

Ostrander  t'.  Brown       6.58, 

660 

668, 

669 

V.  Flint 

623 

Oswald  0.    Mayor  &c.   of  Berwick- 

V.  Gordon 

222 

upon-Tweed 

504 

V.  Greele 

222 

Otis  V.  Hussey 

225, 

226 

r.  Gregg 

23 

V.  Sill 

4.54 

r.  Kelly 

196 

Otts  V.  Alderson 

461, 

463 

V.  Lawrence 

24 

Outwater  v.  Dodge 

441 

V.  I'istor 

177 

Overholt  v.  Ellswell 

305 

V.  Pringlc 

474 

Overton  v.  Freeman 

89 

V.  Ramsbottom 

144 

Owen  V.  Bowen 

190 

V.  Rolls 

98 

V.  Burnett 

718 

V.  Smith 

61 

V.  Gooch 

55 

V.  The  Bristol,  &c. 

Railwav 

r.  Hoinan 

237 

Co. 

68, 

649 

V.  Owen 

567 

V.  Great  West.  Ry. 

Co.      649, 

650 

Ixx 


mJ)EX   TO    CASES    CITED. 


Parkhousc  v.  ForstCr 

624 

Pearson  v.  Humes 

381 

Parkluust  v.  Dickerson 

223 

V.  Kcetly 

174 

V.  J<"oster 

624 

V.  Parker 

22,  35 

V.  Kinsman 

171 

V.  Pearson 

358 

Parkin  v.  Carrutlici-s 

61,  145 

V.  Skelton                     35, 

37, 

139 

Parkinson  v.  Lee 

460,  468 

Pease  v.  Hirst 

21 

508 

Parkist  v.  Alexander 

69,  75 

V.  Mead 

110 

Parks  V.  Hall 

476 

V.  Turner 

220 

V.  Ingram 

216 

Peaslee  v.  Breed 

31,36 

Parnell  v.  Price 

513 

Peate  v.  Dicken 

370 

Parris  v.  Roberts 

449 

Peay  v.  Pickett 

208 

Parry  v.  House 

428 

Peck  V.  Barney 

503 

Parson  v.  Lcxton 

475 

V.  Fisher 

128 

Parsons  v.  Armor 

44 

V.  Neil 

699 

V.  Briddock 

495 

Peckham  v.  N.  Parish  in  Haverhill   11,  20 

V.  Camp 

431 

Peel)les  v.  Stephens 

355 

V.  Hardy            637,  645, 

660,  675 

PecKw.  Thomas 

123 

V.  Hill 

276 

Peele,  ex  parte 

166 

V.  Monteath     637,  705, 

706,  710, 

V.  Northcote 

79 

718 

Peeters  v.  Opie 

449 

Parton  v.  Hervcy           562,  563, 

564,  565 

Peet  V.  McGraw 

629 

V.  Woodward 

196 

Pcigne  V.  Sutcliffe 

264 

Partlow  V.  Cooke 

532 

Peltier  v.  Collins 

401 

Partridge  v.  Colby 

206 

Pemberton  v.  King 

433 

Patcliin  V.  Swift 

355 

V.  Oakes 

507 

Pate  V.  Henry 

650 

Pender  v.  Fobes 

472 

Paterson  v.  Gandasequi 

53,  82 

Penley  v.  Watts 

425 

V.  Hard  acre 

206 

Penn  v.  Bennet 

309 

V.  Tash 

51,  79 

V.  Lord  Baltimore 

363 

Pateshall  v.  Tranter 

474 

Penn.,  Del.,  &  Md.  Steam  Nav. 

Co. 

Patience  v.  Townley 

226 

V.  Dandridge 

46 

Paton  V.  Duncan 

465 

Pennock  v.  Tilford 

463 

Patterson  v.  Atherton 

196 

Pennock's  Appeal 

418 

V.  Gage 

526 

Penoyer  v.  Watson 

507 

V.  Patterson 

537 

Penrose  v.  Curren 

264 

i\  Wallace 

528 

Pensonmeau  v.  Bleakley 

75 

Patton  V.  Smith 

443 

Penton  v.  Robart 

433 

V.  The  Randolph 

67 

People  i\  Conklin 

324 

V.  State  Bank 

241 

V.  Jansen 

510 

,511 

Paul  V.  Prazier 

543,  553 

V.  Kendall 

264 

V.  Hard  wick 

474 

V.  McHatton 

513 

Payne  v.  Cave 

403 

V.  Moores 

263 

V.  Comraei-cial  Bank 

513 

V.  Shall 

355 

V.  Cutler 

217 

V.  White 

512 

V.  Haine 

425 

Percival  v.  Blade 

475 

V.  Matthews 

180 

V.  Frampton 

217 

V.  New  South  Wales  Co. 

374 

Percy  v.  Millaudon 

588 

V.  Rodden 

458 

Perley  v.  Balch 

389 

V.  Shadbolt 

441 

Perkins  v.  Challis 

215 

Paynter  v.  Williams 

394 

V.  Cummings 

381 

Payson  v.  Whitcomb 

227 

V.  Dana 

424 

Peachcy  r.  Rowland 

89 

V.  Douglass 

450 

Peacock  v.  Peacock        133,  170 

173,  530 

V.  Eastern  &  B.  &  M.  R 

.R 

V.  Monk 

356 

Co. 

701 

V.  Rhodes 

206 

V.  Gilman 

574 

Pearcc  v.  Blackwell 

462 

V.  Hart 

540 

V.  Chamberlain 

173 

V.  Hcrsey 

553 

V.  Hitciicock 

26 

V.  Parker 

197 

Peai-point  v.  Graham     155,  156 

160,  170 

V.  Thompson 

75 

Pearse  v.  Green 

76 

Perrine  v.  Cheeseman 

355 

Pearson  v.  Duckham 

34 

V.  Fireman's  Ins.  Co. 

512 

V.  Graham 

61 

Perring  v.  Hone 

123 

V.  Henry 

109 

1  Perry  v.  Green 

226 

INDEX   TO    CASES    CITED. 


Ixxi 


Perry  v.  Mays 

215 

Pierce  v.  Jackson 

174, 175 

V.  Randolph 

142 

V.  Mintiim 

428 

Pern  v.  Turner 

404 

V.  Pcndar 

233 

Peter  v.  Beverly 

115 

V.  Schenck 

614,  615 

V.  Rich 

35 

V.  Trigg 

126,  128 

V.  Steel 

530 

Piers  V.  Piers 

560 

Peters  v.  Ballistier 

51 

Pierson  v.  Hooker 

22,  156,  162 

V.  Fleming 

245 

V.  Hutchinson 

241 

V.  Lord 

263,  5.32, 

535 

Pigott  V.  Bagley 

173 

V.  Westborough 

529 

V. 

649 

Petkin  v.  Tompson 

286 

V.  Thompson 

390 

Peto  V.  Bhides                  * 

457 

Pike  V.  Irwin 

496 

V.  Hague 

63 

Pilkington  v.  Scott 

520,  529 

V.  Reynolds 

225 

Pillans  I'.  Van  Mierop       8, 

222,  355,  357 

Petrie  v.  Bury 

14,  25 

Pirn  V.  Curell 

422 

Pettibone  v.  Roberts 

386 

V.  Downing 

115 

Pettingill  v.  McGregor 

99 

Pickney  v.  Hagadom 

48,  49 

Pettis  V.  Kellogg 

454 

Pinkham  v.  Macy 

235 

Petty  V.  Anderson 

292 

Pinkerton  v.  Marshall 

205 

Pettyt  V.  Janeson 

173 

Pinnel's  Case 

191 

Peyton  v.  Bladwell 

555 

Pinto  V.  Santos 

76 

Phelps  i".  Townsend 

375 

Piper  I'.  Manny 

624,  631 

V.  AVorcester 

245,  246 

259 

Pitcairn  v.  Ogboume 

555 

Phcttcplace  v.  Steere 

372 

Pitcher  v.  Bailey 

37 

Philadelphia  &  Red.  R.  R.  Co.   v. 

V.  Barrows 

144 

Derby 

88, 

694 

V.  Wilson 

529 

Philips  V.  Bank  of  Lewiston 

199 

Pitchford  v.  Davis 

122 

Phillips  V.  Bateman 

362 

493 

Pitkin  V.  Flanagan 

36 

V.  Bonsall 

12 

V.  Pitkin 

173 

V.  Bridge 

175 

Pitt  V.  Albrithow 

621 

V.  Briggs 

37 

V.  Pet  way 

75 

V.  Condon 

590 

V.  Purssord 

33,  394 

V.  Cook 

177 

178 

V.  Smith 

311 

V.  Crammond 

129 

V.  Yaldan 

98 

V.  Earle 

652 

Pittam  V.  Foster 

316 

V.  Green 

273 

Pitts  V.  Congdon 

236 

r.  Jones 

530 

537 

V.  Mangum 

358 

V.  Phillips 

126 

V.  Waugh 

142 

V.  Purington 

152 

Place  V.  Delegal 

28,  507 

V.  Rounds 

513 

Plaisted  v.  B.  &  K.  Steam  Navigation 

V.  Stevens 

425 

Co. 

636,  647 

Phillis  V.  Gentin 

332 

Planters'  Bank  v.  Sellman 

236 

Philpot  V.  Bryant 

236 

Piatt  V.  Drake 

235 

V.  Wallet 

547 

V.  Hibbard     606,  618, 

620,  622,  6.53 

Phipps  V.  Chase 

233 

Pleasants  v.  Pendleton 

449 

V.  Jones 

377 

V.  Pleasants 

332 

Phoenix  Bank  v.  Husscy 

238 

Plimmer  v.  Sells 

43 

Piatt  V.  Eads 

224 

Pluckwell  V.  Wilson 

702 

V.  Oliver 

126 

Pole  r.  Ford 

236 

Pickard  v.  Low 

455 

J'olhill  V.  Walter 

56,  57 

V.  Valentine 

230 

Pollard  I'.  Shaaffer 

425,  426 

Pickas  V.  Guile 

583 

V.  Stanton 

142 

Pickering  v.  Barclay 

639 

Pollock  V.  Stables 

50,69 

V.  Busk           41, 

43,  50,  5 

2,  84 

Pomeroy  i'.  Donaldson 

645 

V.  Dowson 

472 

473 

V.  Smith 

602 

V.  Pickering 

108 

288 

Pomfret  i\  Ricroft 

425,  608 

Pickford  v.  Grand  Junction 

Railway 

Pond  V.  Underwood 

68 

Co.                               648, 

649,  050 

,652 

I'.  Williams 

27 

Picquet  i\  Curtis 

227 

Ponder  v.  Carter 

37 

Pidcock  V.  Bishop 

497 

Pool  V.  Pratt 

276,  545 

Pidgin  V.  Cram 

252 

,  254 

Poole's  Case 

432,  433 

Pierce  v.  Burnham 

568 

Poole  V.  Hill 

27 

V.  Cameron 

389 

V.  Smith 

241 

Jxxu 


INDEX   TO    CASES    CITED. 


Pope  V.  Nance 

V,  Randolph 
Poplewell  V.  Wilson 
Porter  v.  Androscoggin  &Ken.  E. 
Co. 
V.  Ballard 
V.  Bank  of  Rutland 
V.  Hildebrand 
V.  Langhorn 
V.  McColluni 
V.  Pettingill 
V.  Wilson 
Porthousc  V.  Parker 
Portland  Bank  u.  Hyde 
Post  V.  Kimberly  137, 

V.  Post 
Postlethwaite  v.  Parkes 
Postmaster-General  v.  Reeder 
Potter  V.  Delioos 
V.  Mayo 
V.  Sanders 
V.  Tyler 
Potts  V.  Henderson 
Poacher  v.  Norman 
Pougett  V.  Tompkins 
Pourie  v.  Eraser 
Powell  r.  Brown 

V.  Edmunds 
V.  Graham 
V.  Lyles 
V.  Myers 
V.  Tuttle 
Power  V.  Barham 

V.  Finnic 
Powers  V.  Nash 
Powis  V.  Smith 
Powles  !'.  Page 
Powley  V.  Walker 
Pownal  I'.  Ferrand 
Poydras  r.  Mourain 
Pratt  V.  Hutchinson 

V.  Russell 
Pray  v.  Gorham 

V.  Maine 
Prebble  v.  Boghurst 
Precious  v.  Abel 
Prentice  v.  Achorn 

i\  Zane 
Prentiss  v.  Danielson 

v.  Sinclair 
Prescott  V.  Brinsley 
V.  Brown 
V.  Elms 
V.  Flinn 
V.  Holmes 
V.  Hull 
Preston  v.  Day  son 
Prestwick  v.  Marshall 
Prewett  v.  Carruthers 
Price  V.  Alexander 
V.  Barker 
V.  Bcnington 
V.  Eastou 


220 

Price  V.  Hewett 

265 

140 

V.  Neale 

220 

211 

V.  Powell 

670 

R. 

i\  Seaman 

370 

120 

Prichard  v.  Martin 

527 

197 

Pride  v.  Earl  of  Bath 

564 

66 

Priestley  v.  Fowler 

528 

720 

Prince  v.  Clark 

69,  71 

500 

Princeton  v.  Gulick 

145 

206 

Pringle  v.  Pliillips 

214 

449 

Prior  *'.  Hcmbrgw 

111 

152 

Pritchard  v.  Schooner. Lady  Horatia 

67 

163 

Probart  v.  Knouth 

246 

141 

Proctor  V.  Keith 

425 

148,  152 

V.  Nicholson 

627 

632 

433 

Proprietors  of  Canal  Bridge  v. 

553 

Gordon 

118 

505 

Proprietors  of  Trent  Navigation 

546 

r.  Wood                           634, 

635 

643 

539 

Prosser  v.  Edmonds 

193 

194 

407 

V.  Hooper 

475 

214 

Prudence  ?'.  Bermodi 

342 

54 

Pudor  V.  B.  &  M.  R.  R.  Co. 

722 

539 

Pugh  V.  Currie 

126 

129 

565 

V.  Durfee 

217 

44 

Pulsifer  u.  Hotchkiss 

389 

357 

Pultney  i'.  Keymer 

80 

416 

Putnam  v.  Sullivan 

226 

109 

V.  Wise 

131 

137 

457 

Pyle  &c.  V.  Cravens 

243 

673,  674 

72 

463 

Q. 

212 

32 

Quarles  v.  Quarles 

356 

23 

Quarman  v.  Burnett 

92 

66 

Queen,  The,  v.  Wheeler 

432 

426 

Quciroz  V.  Traeman 

80 

393 

Quincy  v.  Quincy 

295 

339 

V.  Tilton 

490 

121 

ex  parte 

432 

308 

Quinn  v.  Fuller 

163 

257 

218,496 

362 

R. 

50 

311 

Rabaud  v.  De  Wolf 

496 

,497 

217 

Rackstraw  v.  Imber 

140 

226 

Radford  v.  Smith 

445 

,  450 

144 

Ragan  v.  Kennedy 

443 

212 

Railroad  Co.  r.  Aspell 

701 

286 

Railton  v.  Hodgson 

53 

433 

V.  Mathews 

497 

43 

Rainsford  v.  Fenwick 

245 

458 

;  Rainwater  v.  Durham 

246 

197 

Raleigh  i\  Atkinson 

59 

233 

RamduloUday  v.  Darieux 

225 

43,  293 

Ramires  v.  Kent 

324 

308 

Ramsbotham  v.  Cator 

212 

94 

Ramsay  v.  George 

286 

237 

Ranay  v.  Alexander 

450 

313 

Rand  v.  Hubliai-d 

205 

389 

!            V.  Mather 

380 

IXDEX   TO    CASES   CITED. 


Ixxiii 


Kandall  v.  Harvey 

367 

Reeves  v.  Capper 

597 

,  601 

V.  Morgan 

554 

V.  The  Ship  Constitution 

602 

r.  Sweet 

246 

Regina  v.  Smith 

527 

,  533 

V.  Randall 

567 

V.  Welch 

529 

V.  Ehodes 

472 

V.  Millis 

560 

,561 

r.  Van  Vechten     47,  58,  94 

,  118 

Reid  V.  Barber 

458 

Randle  v.  Harris 

499 

r.  Hollinshead 

125 

,  133 

Randleson  i'.  Murray 

93 

V.  Morrison 

229 

Ranger  v.  Gary 

215 

V.  Nash 

494 

V.  Carey 

217 

Rcinicker  v.  Smith 

311 

Rankin  v.  Lydia 

345 

Relf  V.  Ship  Maria 

318 

V.  Matthews 

416 

Remer  v.  Downer 

233 

Rann  v.  Hughes 

8 

,355 

Remick  v.  O'Kvle 

227 

Ranson  v.  Mack 

235 

Remington  v.  Hamngton 

233 

Rapelye  v.  Bailey 

508 

Renaux  v.  Teakle 

288 

290 

V.  Mackie 

441 

Reniger  v.  Fogossa 

6 

Raphael  v.  Boehm 
V.  Pickford 

103 

Renncr  v.  Bank  of  Columbia 

230 

658 

liennick  v.  Ficklin 

297 

Rapp  V.  Latham 

161 

Reno  V.  Hogan 

707 

718 

Rathburn  v.  Payne 

701 

Renteria  v.  Ruding 

239 

Rattoon  v.  Overacker 

111 

Renwick  v.  Williams 

216 

Rawlings  v.  Boston 

329 

Resor  v.  Johnson 

532 

Rawlinson  v.  Stone 

205 

Rew  V.  Pettet 

103 

Rawlyns  v.  Vandyke    251,  256, 

293, 

294, 

Rex  V.  Bellringer 

120 

302 

V.  Billingshurst 

565 

Rawson  v.  Johnson 

449 

V.  Birdhrooke 

520 

Rayne  v.  Orton 

27 

V.  Bower 

120 

Rayner  c.  Grote 

55 

V.  Brampton 

521 

Raymond  v.  Fitch 

109 

110 

V.  Christ's  Parish 

519 

V.  Loyl 

245 

257 

V.  Cole 

262 

V.  Proprietors  of  Crown 

V.  De  Hales  Owen 

534 

&  Eagle  Mills 

55 

V.  Friend 

256 

Reab  v.  Moor 

519 

522 

V.  Great  Borden 

579 

Read  v.  Cutts 

514 

V.  Great  Wigston 

262 

V.  Legard 

291 

V.  Gutch 

88 

V.  Pusser 

559 

V.  Hanger 

601 

V.  Rann 

84 

V.  Hertford 

573 

r.  Teakee 

292 

V.  Ivens 

627 

Reading  v.  Blackwell 

115 

r.  Loudonthorpe 

432 

433 

Reakert  v.  Sanford 

293 

V.  Manning 

176 

Reancy  v.  Culbcrtson 

40 

V.  Maiy  Mead 

298 

Reddick  v.  Jones 

217 

V.  Miller 

120 

Redding  i\  Hall                      426 

608, 

610 

V.  Milsom 

206 

Redhead  i'.  Cator 

515 

V.  Munden 

260 

Redman  v.  Redman 

555 

V.  Nutt 

88 

Reed  v.  Ganin 

493 

V.  Pedley 

92 

I'.  Fulium 

503 

V.  Shatton 

85 

V.  Howard 

178 

V.  St.  John 

521 

V.  Jewett 

443, 

453 

V.  Varlo 

120 

V.  Marsh 

222 

V.  Webb 

121 

V.  Moore 

294 

V.  Westwood 

120 

V.  Murphy 

136 

r.  Wroxton 

565 

V.  Noc 

417 

Rcynell  v.  Lewis 

43 

122 

V.  Shcpardson 

174 

177 

Reynolds  v.  Douglass 

503 

V.  Wilmott 

443 

V.  Sliuler 

433 

V.  Wood 

472 

V.  Rowley 

41 

Reedic  v.  Lond.  &  N.  Western 

V.  Toppan              136, 

655 

657 

Railway  Co. 

90,  92 

V.  Waller 

311 

Reedy  v.  Scixaa 

235 

Rhea  i'.  •Rhenner 

306 

Rees  I'.  Lines 

540 

Rhines  v.  Phelps 

454 

Reese  r.  Bradford 

174 

Riiode  V.  Thuaites 

441 

Rcesidc  r.  Knox 

211 

Rhodes  v.  Lindiy 

208 

Reeve  v.  Bird 

429 

,430 

Rice  V.  Austin 

175 

VOL.   I. 

G 

Ixxiv 


INDEX   TO    CASES    CITED. 


Eice  V.  Barnard 

126,  174 

Eobbins 

V.  Fennel 

73 

V.  Bixler 

364 

Eoberts 

V.  Barker 

431 

V.  Glide 

340 

V.  Eden 

212 

V.  Dwight  Man.  Co. 

522 

V.  Havclock 

387 

V.  Gordon 

415 

V.  Jenkins 

473,  474 

V.  Peet 

311 

V.  Mason 

233 

V.  Sims 

373 

V.  Morgan 

463 

V.  Steams 

219 

V.  Moreton 

•  393 

Kich  V.  Aldred 

578 

V.  Ogilby 

678 

V.  Basterfield 

92 

V.  Peake 

208 

V.  Jackson 

416 

V.  Eockbottom  Co. 

529 

V.  Kneeland 

643 

V.  Tucker 

530 

V.  Lambert 

648 

V.  Turner 

618,  652 

Eichards  v.  The  London, 

&c., 

Eail- 

V.  Wyatt 

601,  609 

way 

652 

664,  673 

Eobertson  v.  Breedlove 

215 

Eichardson  v.  Boright 

273 

^ 

V.  Ewell 

443 

V.  Brown 

463 

I'.  Kennedy 

639,  642 

V.  Duncan 

319,  320 

V.  Kensington 

212 

V.  French 

159 

V.  Kctchum 

41 

V.  Goss 

484,  490 

V.  Livingston 

50 

V.  Johnson 

459 

V.  March 

378 

V.  Langridge 

433 

V.  Smith 

12,  26,  163 

V.  Lincoln 

219 

V.  St.  John 

422 

V.  Martyr 

210 

Eobbins  v.  Bacon 

188,  191,  197 

V.  Mellish 

365 

V.  Eaton            269 

270,  273,  280 

V.  Strong 

312 

I'.  Cooper 

175 

V.  Wil.  &  Man 

.E.  E 

..  Co.  701 

V.  Hay  ward 

103 

V.  Wyatt 

128 

Eobinson  v.  Anderton 

457 

Eiches  i'.  Brigges 

582,  583 

V.  Baker 

683 

Eichmond  Man.  Co.  v.  Stark 

47 

V.  Blen 

224 

Eichmond  Trading,  &c.,  Co.  v. 

Far- 

V.  Cone 

701,  702 

quar 

465 

V.  Crowder 

155 

Eichmond  v.  Smith 

624, 

625,  627 

V.  Day 

226 

Eickets  v.  Dickens 

457 

V.  Dunmore 

640,  651 

Eicketts  v.  Weaver 

109, 110 

V.  Greinold 

288 

Eicks  V.  Dillahunty 

457 

,  458, 463 

V.  Gleadow 

53 

Eiddell  v.  Sutton 

109 

V.  Hindman 

518 

Eiddle  v.  Bowman 

32 

V.  Hofman 

163 

V.  Varnum 

441 

V.  Lyall 

67 

Eiddlesden  v.  Wogan 

564 

V.  Lyle 

37 

Eidgeley  v.  Crandall 

244 

V.  Lyman 

215 

Eidgway  v.  EngUsh 

532 

V.  McDonnell 

437 

V.  Hungerford  Market  Co.   519, 

V.  Musgrove 

415,416,  417, 

526 

451 

V.  Philip 

145 

V.  Nahon 

294,  295,  304 

Eidgway's  Appeal 

132 

V.  New  York  Ins. 

Co.             537 

Eigby  V.  Hewitt 

702 

V.  Offutt 

512 

Eight  V.  Cuthell 

45 

V.  Eeynolds 

220,  306 

V.  Darby 

433 

V.  Eice 

459 

V.  Bawden 

433 

V.  Eobinson 

103 

Eigs  V.  Cage 

61 

V.  Thompson 

169 

Eiley  v.  Home 

711,719 

V.  Threadgill 

373,  584,  585 

Einggold  V.  Ringgold 

115 

V.  Turpin 

666 

Eipka  V.  Pope 

227 

V.  Walker 

12 

Eipley  v.  Chipman 

522 

V.  Walter 

632 

V.  Kingsbniy 

147 

V.  Ward 

97,  98 

V.  Waterworth 

127 

V.  Wilkinson 

142 

Eisley  v.  Eisley 

198 

V.  Yarrow 

43 

Eitchie  v.  Atkinson 

387 

Eobison  v.  Gosnold 

295 

Eix  V.  Adams 

368 

Eobson 

V.  Bennett 

229 

Eoach  V.  Thompson 

33 

V.  Curlewis 

235 

V.  Quick 

246,  286 

Rodgers  v.  Smith 

4.57 

Eobards  v.  Hutson 

306 

Eodraan  v.  Zillcy 

414 

INDEX  TO   CASES   CITED. 


Ixxv 


Rodney  v.  Strode 
Rodrijrues  v.  Habersham 
Rodriguez  v.  Heffernman 
Roe  (/.  Brune  v.  Prideaux 
d.  Durant  v.  Doe 
(/.  Gregson  v.  Harrison 
V.  Harrison 
r.  Hayley 
V.  Prideaux 
Rogers  v.  Boehm 
V.  Bumpass 
V.  Clifton 
V.  Hatkett 
V.  Hurd 
t\  Kneeland 
V.  Lungford 
V.  March 
V.  Rogers 

r.  Traders  Ins.  Co. 
V.  Thomas 
Rolfe  V.  Abbot 
Rollins  V.  Stevens 
Rolls  V.  Yate 
Rolt  V.  Watson 
Rood  V.  Jones 

V.  Winslow 
Roof  V.  Stafford 
Rooke  V.  Midland  Railway 
Rooth  V.  Qiiinn 
V.  Wilson 
Root  V.  Lord 
Roots  r.  Lord  Dormer 
Roi)er  V.  Stone 
Rosa  V.  Brotherson 
Roscorla  v.  Thomas 
Rose  V.  Beatie 
V.  Bowler 
V.  Clarke 
V.  Daniel 
V.  Ponlton 
V.  Story 
Ross  V.  City  of  Madison 
V.  Hill 
V.  Johnson 
V.  Turner 
Ross's  Ex'r  v.  McLauchlan 
Rosse  V.  Bramsteed 
Rossitcr  V.  Chester 
V.  Rossitcr 
Roswel  V.  Vaugban 
Rotch  V.  Hawes 
Rothschild  v.  Corney 
?'.  Carrie 
Rothwell  V.  Humphreys 
Itouth  V.  Thompson 
Routlcdge  V.  Grant 
Row  V.  Dawson 

V.  Pulver 

Rowan  c.  Kirkpatrick 

Rowc  V.  Pickford 

V.  Tipper 

I'.  Young 

Rowlaudson,  ex  parte 


25 
472 
51,  80 
433 
433 
427 
506 
201 
69 
77 
285 
529 
225 
244,  270 
44 
218 
48 
115 
194 
476,  478,  479 
249 
162 
14,  31 
241 
366 
320 
243 
Co.  673 

157 
574 
449 
417 
355 
217 
371,  396,  463 
467,  468 
109 
193 
276 
141 
449 
118 
634 
622 
200 
's  Adm'r    363 
632 
675 
55 
457 
608 
218 
230 
157 
45 
418,  440 
193 
509,  511 
103 
484 
236 
220 
136 


21, 


Rowley  v.  Ball 

V.  Bigelow 

V.  Stoddard 
Rowning  v.  Goodchild 
Rucker's  Adm'r  v.  Gilbert 
RuflSn,  ex  jxirte 
Rugglcs  V.  Patten 
Rumney  i\  Keyes 
Rundel  v.  Keeler 
Rundle  v.  Moore 
Runquist  v.  Ditchell 
Runyan  v.  Caldwell 

r.  Nichols 
Runyon  v.  Montford 
Rusby  V.  Scarlett 
Rushforth  v.  Hadfield 
Russell  V.  Babcock 

V.  Brooks 

V.  Buck 

V.  De  Grand 

V.  Failor 

V.  Fillmore 

V.  Hankey 

V.  LangstafFe 

V.  Livingston 

V.  NicoU 

V.  Palmer 

V.  Perkins 

V.  Phillips 

V.  Skipwith 

r.  AViggin 
Rupart  V.  Dunn 
Rust  V.  Larue 

r.  Nottidge 
Rutgers  v.  Hunter 

V.  Lucet 
Rutherford  v.  Ruff 
Rutland  Rail  Road  Co.  v. 
Ratter  v.  Blake 
Ryall  1-.  RoUe 
Ryan  r.  Cumb.  Valley  R. 
!'.  Sans 
V.  Trustees 
Ryberg  v.  Snell 
Ryder,  in  re 


Sackett  i'.  Johnson 

Sadler  v.  Evans 

V.  Ilenlock 

V.  Hobbs 

V.  Nixon 

!  Sadlicr  v.  Biggs 

Saire  i-.  Wilcox 


241 
239,  479,  486 

24 
623 
327 
173,  180 
227 
251,  295,  .302 
261 

69 

50 
606 

98 
233 
43,  47 
602 
496 
286 
370 
382 

33 
454 

73 

205,  224 

642 

441 

420 

495,  506 

222 

325 

222 

467 

539 

529 

422 

531,  584 

311 


Cole 


R.  Co. 


53 

474 
601 
528 


43,  59,  304 

495 

239,  489 

252,  254,  257 


535 

67 

87 

28 

32,  35,  139 

422 

.367.  496 


Sagcr  I'.  Portsmouth,  &c.,  R.  R.  Co.  638, 

707,  710,  717 

Sainsbury  w.  Jones  414 

V.  I'arkinson  205 

St.  Alban's  Steamboat  Co.  v.  Wil- 

kins  522 

St.  John  V.  Van  Santvoord  688,  689 

St.  John  V.  St.  John  ^98 


Ixxvi 


INDEX  TO   CASES   CITED. 


St.  Mary's  Church,  Case  of 

120 

Schneider  v.  Heath 

52, 

473 

Salem  Bank  v.  Gloucester  Bank 

41, 

586 

V.  Sehiffman 

206 

Salisbuiy  v.  Marshall 

423 

471 

Scholefield  v.  Eichelberger 

172,  173, 

233 

V.  Stainer 

468 

Scholey  v.  Goodman 

300 

in  re 

114 

School  Dist.  V.  Bragdon 

264 

Salmon  v.  Davis 

162 

Schroyer  v.  Lynch 

622 

623 

Salte  V.  Field 

59 

490 

Schuyler  v.  Russ 

459 

473 

Slater  v.  Burt 

230 

235 

Scott  V.  Alexander 

233 

Saltmarsh  v.  Tuthill 

212 

V.  Bevan 

239 

Saltus  ^1.  Everett 

239 

683 

V.  Buchanan 

244 

273 

Sams  V.  Stockton 

246 

V.  Colmesnil 

143 

144 

Samras  v.  Stewart 

641 

V.  Crane 

578 

Samson  v.  Thornton 

206 

V.  Godwin 

14,  26 

Samuel  Book,  in  re 

262 

V.  James 

285 

Sanborn  v.  French 

362 

v.  Pettit 
^  Lifford 

485 

V.  Little 

196 

199 

233 

Sanders  v.  Spencer 

627 

V.  Porcher 

191 

V.  Filley 

391 

V.  Scott 

458 

555 

Sanderson  v.  Bowes 

226 

V.  Williams 

332 

V.  Milton  Stage  Co. 

170 

Scotthorn  v.  South  Staffordshire  R. 

Sandford  v.  Mickles 

217 

R.  Co.     • 

675, 

689 

V.  Dodd 

386 

Scouton  V.  Eislord 

308 

309 

Sandham,  ex  parte 

167 

Scoville  V.  Griffith 

659 

Sandiland,  ex  paHe 

299 

Scrace  v.  Whittington 

99 

Sandilands  v.  Marsh 

160 

168 

Scranton  v.  Baxter 

591 

Sands  v.  Taylor 

447 

Screws  v.  Roach 

438 

Sanger  v.  Eastwood 

454 

Scruggs  V.  Gass 

221 

San  Jose  Indiano,  The 

173 

Scrugham  v.  Carter 

177 

Sargent  v.  Gile 

449 

Scudder  v.  Andrews 

389 

V.  Southgate 

215 

V.  Woodbridge 

335 

Sasportas  v.  Jennings 

321 

Seaborne  v.  Maddy 

49 

Sasscer  v.  Farmers  Bank 

234 

Seacord  v.  Burling 

211 

Satterlee  v.  Groat 

641 

Seagood  ;;.  Meale 

555 

Saunders  v.  Johnson 

23 

Seagraves  v.  City  of  Alton 

118 

V.  Wakefield 

6 

Seaman  v.  Fonereau 

62 

Saunderson  v.  Griffiths 

44 

Seaton  v.  Benedict 

288,  289 

292 

V.  Judge 

228 

V.  Booth 

30 

417 

V.  Marr 

243 

264 

V.  Henson 

23 

Savage  v.  Aldren 

212 

Seaver  v.  Morse 

522,  524 

527 

V.  King 

212 

V.  Phelps 

311 

V.  Rix                         39, 

t8,  55,  58 

Secomb  v.  Nutt 

478 

Savage  Man.  Co.  v.  Armstrong 

447 

Seeley  v.  Bisbee 

225 

Saville  v.  Robertson 

148 

152 

Segar  v.  Edwards 

69 

Savings  Bank  v.  Bates 

230 

Seidenberder  v.  Charles 

382 

V.  Ela 

514 

Seignior  &  V/olmer's  Case 

52 

Sawyer  v.  Cutting 

288 

Seixas  v.  Woods 

460,  463 

466 

V.  Fisher 

449 

681 

Sclby  V.  Eden 

226 

V.  Hoovey 

215 

Selkrig  v.  Davies 

127 

V.  Joslin 

483 

Sellen  v.  Norman 

527, 

532 

V.  Patterson 

513 

Seller  v.  Work 

582 

V.  Twiss 

431 

Selser  v.  Brock 

497 

Sayer  v.  Bennet 

61 

173 

Selway  v.  Fogg 

540 

V.  Chaytor 

11 

V.  Holloway 

654 

Sayre  v.  Flournoy 

285 

Senior  v.  Armytage 

426 

430 

Scarman  v.  Castell 

527 

Sentance  v.  Poole 

312 

Scarpellini  v.  Atcheson 

285 

Sergeson  v.  Sealey 

313 

Scheni(!rhorn  v.  Vanderheyden 

355 

Servante  v.  James 

13,  15,  30 

Schietfcliu  v.  Stewart 

103 

104 

Seventh  Ward  Bank  v.  Hanrick 

2.33 

Schimmelpcnnich  v.  Bayard      44,  52, 

222 

Severance  v.  Kimball 

319 

Schmalz  v.  Avery 

55 

Seville  v.  Chretien 

326 

Schmidt  v.  Blood 

606 

Sewall  V.  Allen 

650 

V.  Livingston 

414 

Sexton  V.  Pike 

539 

Schneider  v.  Cochi-ane 

237 

Seymour  v.  Brown 

613,  614, 

616 

INDEX   TO   CASES   CITED. 


Ixxvii 


Seymour  v.  Dclancy 

311,  414 

Shultz  V.  Elliott 

428 

V.  Gartside 

544 

Shurlds  V.  Tilson 

144 

Shackel  v.  Rosier 

379,  381 

Sibely  v.  McAllaster 

33 

Shaflier  v.  The  State 

563 

Sibly  V.  Tutt 

239 

Sliarington  v.  Stratton 

354 

Siboni  r.  Kirkman 

111 

Sliarp  V.  Grey 

698 

Sibree  v.  Trijip 

191 

V.  Conklin 

29 

Sice  V.  Cunningham 

224 

V   Teesc 

382 

Sickels  V.  Pattison 

522 

Sharrod  v.  Lond.  &  N.  Western  Rail- 

Sidaways v.  Todd 

622 

way  Co. 

88 

Sideuham  and  Worlington's 

Case 

6 

Shaw  V.  Ardcn 

85,  99 

Sidwell  V.  Evans 

367, 

368 

V.  Berry 

112,  624 

Sitfken  v.  Wray 

482 

V.  Boyd 

268 

Sitfkin  V.  Walker 

147 

V.  Fisher 

414 

Sigoumey  v.  Lloyd 

212 

V.  Kay 

425 

V.  jNIunn 

126, 

173 

V.  Loud 

33 

Sikes  V.  Johnson 

264 

V.  Nudd 

42,95 

Silvcrnail  v.  Cole 

363, 

367 

V.  Pratt 

24,  162 

Silvis  V.  Ely 

366 

V.  Reed 

224 

Simei-son  v.  Branch  Bank 

443 

V.  Sherwood 

31 

Simmins  v.  Parker 

332, 

345 

V.  Stone 

81 

Simonds  v.  Strong 

144, 

145 

V.  Thompson 

292 

Simmons  v.  Simmons 

554 

V.  No.  Midland  Railway 

718 

V.  Swift 

441 

Shearman  v.  Akius 

316 

Simms  v.  jMarryatt 

457 

Shed  V.  Brett 

228,  235 

V.  Norris 

259 

V.  Pierce 

24 

Simon  v.  Barber 

256 

Shee  V.  Hale 

427 

V.  Miller 

631 

Sheehy  i'.  jNIandeville 

12 

Simpson  v.  Clayton 

30 

Sheerman  v.  Thompson 

379 

V.  Hawkins 

417 

Shelden  r.  Robinson 

643 

V.  Potts 

474 

Sheldon  v.  Benham 

235 

V.  Robertson 

247 

V.  Cox 

437 

V.  Turney 

236 

V.  Kendall 

48 

V.  Vaughn 

29 

Shclton  I'.  Homer 

75 

Sims  V.  Bond 

53 

V.  Livius 

416 

V.  Bmtton 

158 

168 

r.  Pendleton              289 

303,  304 

V.  Chance 

605 

V.  Sprinj^ett 

250,  260 

v.  Harris 

26 

Shepard  v.  Hawley 

163 

V.  Willing 

148,  151 

152 

Shephard  v.  Watrous 

320 

Simson  t*.  Cooke 

507 

Shepherd  c.  Kain 

465,  473 

V.  Jones 

376 

V.  Mackoul 

303,  304 

Sinclair  v.  Peai-son 

87 

605 

V.  Percy 

75 

V.  Richardson 

500 

V.  Pybus 

469 

Singer  i'.  McCormick 

521 

V.  Temple 

464 

Siordet  v.  Hall 

638 

Shepley  v.  Davis 

441 

Sivewright  v.  Archibald 

401 

Sherman  v.  Barnard 

381 

V.  Richardson 

74 

V.    Rochester    &    Syracnse 

Skeate  v.  Beale 

321 

362 

R.  ]{. 

528 

Skclton  V.  Brewster 

499 

Sherwood  v.  Robins 

451 

Skingly,  in  re 

425 

Shields  V.  Yonj^e 

528 

Skinner  v.  Dayton 

94 

171 

Shiells  r.  Blackl)ume       74,  583 

587,  588 

V.  Gunn 

52 

Siiikock  V.  Psissman 

98 

r.  London,  Brighton,  &  South 

- 

Shillibecr  r.  Glyn 

373,  584 

coast  Railway  Co 

607 

,  695 

Ship  Lavinia  v.  Barclay 

67 

V.  Somes 

196 

Sbipman  v.  Ilorton 

243,  269 

V.  Stocks 

53 

Shi])pey  v.  Henderson 

308 

V.  Upshaw 

681 

.Shore  v.  Lucas 

477 

Slackhouse  i\  O'Hara 

99 

Short  V.  City  of  New  Orleans 

190 

Slater,  ex  parte 

162 

V.  Skipwith 

74,77 

V.  Magraw 

11 

V.  Stone 

548,  550 

Slaughter  t".  (irccn 

613 

Shorter  v.  Boswell 

331 

Slave  Grace,  The 

345 

Shotwell  V.  Miller 

162 

Slaymakcr  v.  Irwin 

401 

Shubrick  v.  Salniond 

354 

Sleat  v.  Pagg 

711 

,719 

IXXVlll 


INDEX   TO    CASES   CITED. 


Sleath  V.  Wilson  700 

SUngorlantl  v.  Morse  578 
Slingsby's  Case          13,  14,  15,  17,  19,  25 

Sloan  V.  Gibson  356 

Slocombe  v.  Glubb  278 

Slocum  V.  Fail-child  718 

Stubey  v.  Heyward  441,  483 

Sly  v' Edgley  88 

Small  ('.  Atwood  462 

V.  Erowder  198 

V.  Cinrie  504 

V.  Moates  487 

Smallpiece  v.  Dawes  292 

Smart  v.  Sandars  58,  61 

Smedes  v.  Bank  of  Utica  73,  586 

Smiley  v.  Bell  193 

Smith  V.  Algar  366,  368 

V.  Barker  175 

V.  Barrow  139,  140 

V.  Bartholomew  363 

V.  Berry  195 

V.  Birmingham  Gas  Co.  117 

V.  Bowles  482 

V.  Braine  206,  212 

V.  Bruning  557 

V.  Burnham  131,  142 

V.  Chester  220 

V.  Clark  212 

V.  Clarke  614 

V.  Condry  75 

V.  Craven  148 

V.  Dann  502 

V.  Davenport  67 

V.  Dearlove  629,  633 

V.  Edwards  166,  174 

V.  Estate  of  Steele  512 

I'.  Evans  268 

V.  Field  490 

V.  Foster           '  449 

V.  Gibson  246 

V.  Goss  490 

V.  Greenlee  418 

I'.  Hayward  520,  527 

V.  Henry  442 

V.  Hiscock  213,  214 

V.  Hodson  46,  47 

V.  Home  711 

V.  Hunt  31 

v.  Hyde  540 

V.  Jackson  127 

V.  Kelley  273 

V.  Kiugsford  527 

V.  Knox  216 
V.  Lascelles                      73,  74,  446 

V.  Little  233,  235 

IK  Lynes  449 

i\  Marrable  471 

V.  Marsack  220 

V.  Mawhood  382 

V.  Mayo  270,  276 

V.  McClure  228 
?;..  Mechanics  &  Traders  Bank  214 

V.  Mercer  219,  220 


Smith  V.  Montgomery  494 

r.  Moore  453 

V.  Mullett  234 
V.  Nashua  &  Lowell  K.  E.  Co.  665, 
674 

V.  Niles  615,  616 

V.  Philadelphia  Bank  208 

V.  Pierce  646 

V.  Plomer  286 

V.  Pocklington  12 

V.  Proprietors,  &c.  118 

V.  Readfield  322 

V.  Rice  467 

V.  Seward  645 

r.  Shaw  239 

* .  Shepherd  636 

V.  Sherman  553 

V.  Silliman  289 

V.  Simonds  109,  110 

V.  Sleap  68 
V.Smith  115,128,298,3.58 
V.  Spooner                   312,  315,  316 

V.  StaiFord  554 

V.  Stone  162 

V.  Surman  444 

V.  Tallcott  22 

V.  Tarlton  129,  131 

V.  Thompson  539 

V.  Tracy  540 

V.  Van  Loan  217 

V.  Ware  360 

V.  Watson  125,  133 

V.  Weed  369 

V.  Whiting  112,  235 

V.  Williams  472 

V.  Winter  512 

V.  Wright  676 

V.  Wyckoflf  205 

ex  parte  1 73 

in  re  175,  178 

Smith's  Adm'r  v.  Lamberts  99 

Smithson  v.  Garth  25 

Smout  V.  Ilbery  57,  61 

Smylcy  v.  Head.  497 

Smyrl  v.  Nioloa  637 

Smyth  V.  Craig  61 

V.  Tairkersley  137 

Snedeker  i'.  Warring  431 

Snee  v.  Prescot  479 

V.  Trice  333,  335 

Sneider  v.  Geiss  627,  722 

Snell  V.  Moses  467 

V.  The  Independence  528 

Snelling  v.  Lord  Huntingfield  529 

Snevily  v.  Bead  308 

Snow  V.  Eastern  R.  R.  Co.  722 

Snow  v.  Perkins  235 

Snowdon  v.  Davis  67,  68 

Snyder  v.  Riley  215 

V.  Sjionable  64 

Society  in  Troy  v.  Goddard  378 

V.  Perry  377,  378 

Society,  &c.  v.  Wheeler  360 


INDEX   TO    CASES    CITED. 


Ixxix 


Sohier  i\  Loring 

237 

Stainbank  v.  Fenning 

67 

Selartc  v.  Palmer 

2.35 

V.  Read 

41 

Solly  V.  Forbes                           24,  26,  162  ; 

Staines  v.  Shore 

418 

V.  Rathbone                  72, 

■9,  80,  84  ; 

Stalker  v.  McDonald 

217 

Solomon  v.  Gregory 

512 

Stammers  v.  Macomb 

289 

V.  Kimmel 

355 

Standen  v.  Chrinnas 

425 

Solomons  v.  Bank  of  England 

206,  213  1 

Stanly  v.  Hendricks 

499 

Somerville  v.  Williams 

230 

Stanley's  Appeal 

115 

Sorsbie  r.  Park                       15, 

16,  17,26  1 

Stimton  V.  Bell 

587 

South  Carolina  Soc.  v.  Johnson 

504 

i".  Blossom 

235 

South,  ex  parte 

188 

V.  Eager 

239, 

490 

Southard  v.  Steele 

168 

V.  Small 

438, 

439 

V.  Kexford              546 

550,  552 

V.  Wilson          245,  252 

255, 

256 

Southcote  V.  Hoare 

15,  25 

Stapilton  v.  Stapilton 

364 

Southcote's  Case 

573,  594 

Staples  V.  Emery 

431 

432 

Southern  Ins.  Co.  v.  Gray 

48 

Stark  V.  Parker 

519 

522 

Southerne  v.  Howe 

459 

StaiT  V.  Peck 

560 

Souther's  Case 

334 

V.  Taylor 

306 

Southwick  f.  Estes 

88 

Startup  V.  ^IcDonald 

445 

450 

Sower  V.  Bradfield 

12 

State  V.  Clarke 

243 

Spain  I'.  Arnott 

518,  521 

V.  Gailiard 

355 

467 

Spalding  v.  Adams 

601 

V.  Hale 

334 

V.  Ruding 

490 

V.  Jeans 

330 

V.  Vandercook 

389 

V.  Mann 

334 

Spann  v.  Baltzell 

233,  235 

V.  Mathews 

623 

Sparhawk  v.  Allen 

115 

V.  Reynolds 

509 

511 

V.  Buell 

242 

r.  Riclimond 

244 

V.  Russell 

180 

V.  Samuel 

341 

Span-  V.  Wellman 

722 

V.  Whyte 

335 

S])alding  v.  Alf'ord 

540 

State  Trettfurer  v.  Cross 

377 

Speed  V.  Philips 

362 

Stead  r.  Salt 

168 

Spence  v.  Chadwick 

425,  675 

Steamboat  New  World  v.  King 

695 

Spencer  v.  Billing 

166 

Steam  Nav.  Co.  v.  Dandridge 

646 

V.  Daggett 

645 

Steams  v.  Haven 

133 

,  164 

r.  Durant 

14,  26 

V.  Marsh 

602 

V.  Field 

48 

Stebbins  v.  Palmer 

110 

,  5.53 

V.  Harvey 

226 

V.  Sherman 

308 

IK  Negro  Dennis 

343 

V.  Smith 

369 

V.  Wilson 

59 

Stcdman  ;;.  Gouch 

220 

Spencer's  Case 

201 

Steel  V.  Jennings 

158 

Sperry,  in  re 

180 

V.  Steel 

532 

Spies  i'.  Gil  more 

229 

Steele  v.  Harmer 

122 

V.  Newberry 

235 

V.  Ins.  Co. 

635 

Spindler  v.  Grellet 

226 

Steers  v.  Lashley 

215 

Spotswood  V.  Barrow 

526 

Steiglitz  r.  Egginton 

47 

Sprague  r.  Baker 

200 

Stem's  Appeal 

115 

Spreadbury  v.  Chapman 

288 

Stephens  v.  Badcock 

76 

Sprigwell  r.  Allen 

457 

V.  Beal 

285 

Spring  V.  Coffin 

386 

V.  Olive 

301 

Springer  v.  Hutchinson 

493 

V.  Wilkinson 

479 

Springfield  Bank  v.  Merrick 

382 

Stephenson  v.  Hardy 

293 

S])rott  r.  I'owell 

106 

V.  Hart 

684 

Sproul  V.  Hommingway 

90 

V.  Primrose 

226 

Squier  r.  Hunt 

445 

Sterling  v.  Sinnickson 

556 

V.  Mayer 

432 

Sterry  v.  Arden 

357 

Squire  r.  Tod 

414 

Stetson  V.  Patton 

47,  58,  94 

V.  Whipple 

529 

Stevens  v.  Adams 

539 

Staats  r.  Ilowlett 

160,  507 

V.  Armstrong 

91,  92 

Staliles  r.  Eley 

145,  700 

r.  Blanchard 

217 

Stack])ole  v.  Arnold 

8,48 

r.  Eno 

441 

Staflord  v.  Roof 

269 

r.  Fuller 

464 

in  re 

103 

V.  Robins 

84 

Stainbank  v.  Bank  of  Va. 

41 

V.  Wilson 

80 

Ixxx 


INDEX   TO    CASES   CITED. 


Stevenson  '•.  Larabard  428 
r.  Weeks  105 
Steward  v.  Lonibe  442 
V.  Harding  433 
Stewart  v.  Alliston  416 
V.  Caldwell  158 
V.  Dougherty  463 
V.  McKean  504 
V.  Oakes  346 
V.  The  State  414 
V.  Trustees  of  Hamilton  Col- 
lege 379 
I'.  Walker  520 
Stikeman  v.  Dawson  266 
Stiles  u.  Farrar  195 
V.  Granville  258 
Stilk  V.  Myrick  363 
Stocken  r.  Collen  407 
Stocker  v.  Brockelbank  136 
Stockley  f.  Stockley  311 
Stocks  V.  Dobson  198 
Stockton  V.  Frey  691,  696,  700 
Stoddard  v.  Kimball  212 
V.  Long    Island  Railroad 

Co.      705,  706,  707,  710,  718 

V.  Mix  364 

Stoddart  i'.  Smith  417 
Stoddert  v.  Vestry  of  Port  Tobacco 

Parish  120 
Stokes  V.  Saltonstall     691,  692,  693,  696, 


699 

Stonard  v.  Dunkia 

621 

Stone  V.  Carr 

257 

V.  Cod  man 

90,  93 

V.  Compton 

497 

V.  Dennisoa 

261 

V.  Fouse 

139 

V.  Gilliam 

448 

V.  Lidderdale 

194 

V.  JNIcXair 

293 

V.  Marsh 

161 

V.  Peacock 

441 

V.  Pointer 

457 

V.  Swift 

239 

V.  Waitt 

660,  684 

V.  Witliipool 

264 

V.  Whiting 

429 

V.  Wood 

54 

Stonehouse  v.  Gent 

67 

Stoolfoos  V.  Jenkins 

264 

Storer  v.  Hunter 

442 

V.  Logan 

222 

Storm  V.  Stirling 

210 

Storr  V.  Crowley 

658,  659,  674 

Story  V.  Johnson 

273 

V.  Lord  Windsor 

64 

V.  Eichardson 

20,  30 

Stouffer  V.  Latsliaw 

319 

Stoveld  V.  Hughes 

485,  490 

Stowe  V.  Mescrve 

454 

Stowel  V.  Zouch 

281 

Stowell's  Adni'r  v.  Drake 

31 

Stracy  v.  Bank  of  England 

365 

Strader  v.  Graliara 
Strangborough  v.  Warner 
Strange  v.  Price 
Strafford  Bank  v.  Crosby 
Streatfield  i\  Halliday 
Street  v.  Blay 
Streeter  v.  Horlock 
Stretch  v.  Parker 
Stretton  v.  Busnach 
Sti-ibblehill  v.  Brett 
Strickland  v.  Coker 

V.  Maxwell 
V.  Turner 
Strobes  v.  Caven 
Strong  I'^Natally 
Stroud  V.  Marshall 
Stuart  V.  Simpson 

V.  Wilkins 
Stublis  V.  Lund 
Stucky  V.  Clyburn 
Stultz  V.  Dickey    ^ 
Sturge  V.  Sturge 
Sturges  I'.  Crowninshield 
Sturdevant  v.  Pike 
Sturtevant  v.  Ballard 
Sullivan  v.  Mitchell 
?'.  Sullivan 
Summeril  v.  Elder 
Summers  i'.  Ball 
Sumner  v.  Ferryman 
V.  Ford 
V.  Williams 
Sunbolt  V.  Alford 
Supervisors  of  Albany  Co. 
Surplice  v.  Farnsworth 
Surtees  v.  Hubbard 
Surtell  i\  Brailsford 
Sussex  Bank  v.  Baldwin 
Sutton  V.  Buck 

V.  Grain 

V.  Irwine 

?!.  Temple 

V.  Tatham 

V.  Tyrell 

V.  Warren 
Suydam  v.  Clark 
V.  Vance 
Swain  v.  Tyler 
Swan  V.  Nesmith 
Swasey  v.  Vanderheyden 
Sweany  r.  Hunter 
Sweat  V.  Hall 
Sweeney  v.  Owsley 
Sweet  I'.  Pym 
Sweigart  v.  Berk 
Swetland  i\  Creigh 
Swett  V.  Colgate 
V.  Patrick 
Swift  V.  Clark 

V.  Hawkins 
V.  Tyson 
V.  Williams 
Swigert  V.  Graham 


345 
373 
235 
513 
12 
475 
537 
544 
306 
556 
278 
430 
437 
602 
673 
310 
536 
460 

485,  486 
459 
430 
415 
5 
75 
443 
229 

298,  564 
482 
299 
320 
227 

108,  515 

632 

t'.  Dorr       623 

423,  426 

191 

306 

225,  228,  233 

578 

108 

162 

423,  471,  607 

69 

522 

564 

401 

512 

251 

79 

261 

363 

300 

441 

481 

26 

208 

458,  463,  466 

29 

318 

355 

217 

522 

603 


INDEX   TO   CASES   CITED. 


Ixxxi 


Swindler  v.  Hilliard 
Swinford  v.  Bum 
Swires  v.  Parsons 
Sydebotham,  ex  parte 
Sydnor  v.  Hiird 
Sykes  v.  Dixon 
V.  Giles 
V.  Halstead 
Sylvester  v.  Crapo 
Symington  v.  INIcLin 
Symons  v.  James 


707,  718 

538 

532 

262 

48,  55 

374,  529,  532 

40,  69,  419,  420 

292 

217 

51 

415 


55 


155,  156, 
174,  175, 


TafFe  v.  Warnick 
Taft  V.  Buffum 

V.  Sergeant 
Taft  &  Co.  V.  Pike 
Talhot  V.  Gray 
Taintor  v.  Prendergast 
Taitt,  ex  parte 
Tains  V.  Way 
Tanner  v.  Moore 

V.  Sfovell 

V.  Smart 
Tansley  v.  Turner 
Tapley  v.  Buttcrfield 
Tappan  v.  Blaisdell 
Tapscott  V.  Williams 
Tarling  v.  Baxter 
Tasscll  ('.  Lewis 
Tate  r.  Wymond 
Tatloek  i\  Harris 
Tattersall  c  Groote 
Tatuin  V.  Boimer 
Taunton  r.  Costar 
Taunton  Bank  v.  Richardson 
Tayloe  r.  Merchants'  Fire  Ins.  Co 
Taylor  v.  Bank  of  Illinois 

V.  Blacklow 

V.  Brewer 

V.  Brydcn 

V.  Btdlen 

V.  Carpenter 

r.  Ciiapman 

V.  Coryell 

V.  Croker     • 

V.  Dobhins 

V.  Field  I 

V.  Green 

V.  Henderson 

V.  Jones 

V.  Kymer 

r.  Mortindalc 

V.  Patrick 

V.  Pngli 

V.  Salmon 

I'.  Savage 

V.  Snyder 

V.  Termc 

V.  Trui'inan 

V.  Wells 


187, 


225, 


311, 


432 
171 
271 
268 
514 
,  83 
180 
215 
509 
483 
309 
441 
160 
177 

26 
441 
235 
513 
188 
173 
495 
434 
231 
407 
238 

98 
538 
233 
473 
324 
429 
168 
276 
208 
179 

63 
152 
371 
240 
415 
364 
550 

75 

37 
229 
136 
240 
685 


Taylor  i'.  Wetmore 
V.  Whitehead 
V.  Young 
Teaff  V.  Hewitt 
Teague  v.  Hubbard 
Teall  V.  Sears 
Tebbcts  v.  Haskins 
Tebbs  V.  Carpenter 
Teed  v.  Elworthy 
Teesdale  v.  Anderson 
Tempest  v.  Fitzgerald 
Temple  v.  Ilawley 
Templeraan  v.  Biddle 

V.  Case 
Templer  v.  IMcLachlan 
Tennev  v.  Prince 
Terrilfi;.  Richards 
Tcrritt  v.  Bartlett 
Teny  v.  Belcher 

V.  Fargo 

r.  Parker 

V.  Wacher 
Thacher  v.  Dinsmore 
Thacker  v.  Shepherd 
Thatcher  v.  Bank  of  New  York 
Thayer  v.  Clemence 
V.  AVadsworth 
V.  Wendell 
V.  Wiiite 
The  A.  D.  Patchin 
The  Adventure 
Tlie  Agricola 
The  Amiable  Nancy 
The  Brig  Casco 
The  Fortitude 
Tlie  Frances 
Tlie  Gratitudine 
Tlie  Maria 
The  Newark 
Tlie  Rebecca 
Tlie  Rowena 
The  Brig  Sarah  Ann 
Tiie  Schooner  Emulous  &  Cargo 
The  Schooner  Recside 
The  Waldo 

Thicknesse  v.  Bromilow 
Thickstun  r.  Howard 
Thimblcthorp  v.  Ilardesty 
Thing  n.  Libbey 
Thomas  and 


501 

608 

145 

432 

141 

652 

542 

103 

26 

465 

441 

278 

430 

579 

99 

206,  496 

132,  152,  166 

382 

442 

41 

225,  233 

76 

8,  116 

28 

43 

200 

519,  522 

108 

251 

318 

324 

90 

75 

636 

67 

84 

67 

90 

648 

648 

676 

67 

318 

648 

684 

158 

629 

26 

271 

20 

102 


624, 


t;.  Bishop 
V.  Boston  &  Providence  R. 
R.  Corp.     620,  648,  663,  673 


V.  Cook 
V.  Davis 
V.  Day 
V.  Dike 
V.  Dow 
V.  Edwards 
V.  Generis 
V.  Hayden 
V.  Hcwes 
I'.  Newtou 


37,  429,  430 

514 

621 

263,  523 

513 

53,  55 

345 

424 

55 

213,  214 


Ixxxii 


INDEX   TO    CASES   CITED. 


Thomas  v.  Eoosa  208 

V.  Shillibeer  190 

V.  Thomas  355,  390 

V.  Williams  380,  526 

Thomason  y.  Fi-ere  173,205 

Thomasson  v.  Boyd  273 

Thomct't  V.  Haines  418 

Thomond  v.  Earl  of  Suffolk  286 

Thompson  v.  Andrews  173 

V.  Bell  43 

V.  Botts  459,  474 

V.  Blauchard  355,  443 

V.  Davenport       53,  55,  82,  83 

V.  Doming  239 

V.  Dominey  239,  487 

V.  Emery  196,  197 

i;.  Hale  216,218 

V.  Harding  1 1 2 

V.  Havelock  75,  85 

V.  Hervey  303 

V.  Lacy  623,  624,  632 

V.  Lay  270,  271,  309 

V.  Lindsay  467 

V.  Page  378 

V.  Patrick  593 

V.  Percival  188 

2.'.  Perkins  78,-79 

V.  Shepherd  206,  216 

V.  Thompson  477 

V.  Tiles  444 

V.  Towle  458 

V.  Trail  485 

V.  Williamson  133 

V.  Wilmot  332,  339 

Thomson  v.  Davenport  48 

V.  Harrison  555 

Thorndike  v.  De  Wolf  133,  139 

Thorne  v.  Deas  582,  586 

Thornborow  v.  Whiteacre  362 

Thornton  v.  Davenport  443 

V.  Dixon  126,  127 

V.  Fairlie  365 

V.  Illingworth  271,  274 

V.  Place  388 

V.  Wynn  475 

Thorogood  v.  Bryan  702 

V.  Marsh  637 

Thorold  v.  Smith  46 

Thorpe  v.  Booth  221 

V.  Thorpe  369 

V.  White  523 

Thrupp  V.  Fielder  269,  270 

Thm-man  v.  Wells  194 

Thurston  v.  Thornton  401 

V.  McKown  206,  217 

V.  Percival  539 

Thweatt  v.  Jones  37 

Tibbetts  i'.  Towle  449 

Tibhits  r.  George  188,  195,  197 

Tickell  V.  Short  73 

Tidewater  Canal  Co.  v.  Archer  75 

Tileston  v.  Nettleton  498 

Tillier  v.  Whitehead  163 


Tillotson  V.  Boyd 

V.  McCrillis 
Tilton  V.  Russell 
Timlters  v.  Katz 
Timmis  v.  Gibbins 

V.  Piatt 
Timrod  v.  Shoolbred 
Tinckler  v.  Prentice 
Tiudal  V.  Bright 
V.  Brown 
V.  Taylor 
V.  Xouchberry 
Tingley  v.  Cutler 
Tingrey  v.  Brown 
Tinsley  v.  Beall 
Tipper  v.  Bicknell 
Tippet  V.  Hawkey 
Tippets  V.  Walker 
Titchburne  v.  White 
Tobey  v.  Lennig 
Tobias  v.  Francis 
Tobin  V.  Crawford 
Todd  V.  Emly 
V.  Gee 
V.  Stokes 
Tompkins  v.  Brown 
Tom's  Case 


200 

258 

257 

285 

221 

111 

467 

381 

141 

235 

239 

499 

355,  356 

112 

215 

371 

31 

54 

677,  720 

235 

432 

41 

40 

414 

301 

309 

343 


Tonnawanda  R.  R.  Co.  v.  Mimger      701 

Toogood  V.  Scott  331 

Tooke  V.  Hollingworth  447 

Tooker  u.  Bennett  163 

Tooley  v.  Windham  367 

Topham  v.  Braddick  76 

Torrey  v.  Fisk  205 

Torriano  v.  Young  425 

Tourville  v.  Naish  64 

Toussaint  v.  Martinant  32 

Towell  ('.  Gatewood  463,  465 
Tower  v.  The  Utica  &c.  Railroad 

Co.  651 

Towers  v.  Moore  29 

Towle  V.  Leavitt  51,  418 

V.  Marrett  539 

Towne  v.  Wiley  264 

Townly  v.  Crump  485,  489 

Townsend  v.  Carpenter  194 

V.  Devaynes  127 

V.  Inglis  44 

V.  Neale  23 

V.  Riddle  163,  509,  512 

Townsley  v.  Sumrall  237,  357 

Towson  V.  Havre-de-Grace  Bank  628,  630 

Traccy  v.  McArlton  305 

Tracy  v.  Oberliu  Exchange  Co.  422 

V.  Wood  575 

Traver  v. 370 

Travis  v.  Bishop  454 

Treasurers  v.  Bates  12 

Treat  v.  Orono  386 

Tredwen  v.  Bourne  50,  122 

Tree  v.  Quimp  565 

Trent  Navigation  Co.  v.  Harley  510 

Treuttel  v.  Barandon  80 


liSTDEX   TO    CASES    CITED. 


Ixxxiii 


Trigg  V.  Fiiris 

458 

U. 

Trow  V.  Vermont  C.  R.  R.  Co. 

701 

702 

Trowbridge  v.  Cusliman 

175 

Ullock  V.  Reddelein 

446 

Trousdale  v.  Darnell 

433 

Ulmer  v.  Cunningham 

•  32 

Troy  Academy  v.  Nelson 

377 

Underbill  v.  Gibson 

370 

Trudeau  v.  Robinctte 

329 

Union  Bank  v.  Benham 

343 

True  V.  Fuller 

493 

V.  Coster's  Ex'rs 

502 

V.  Ranney 

563 

564 

V.  Eaton 

160 

Trueman  v.  Hurst 

261 

V.  Geary 

99 

365 

V.  Loder 

48 

V.  Hyde 

233 

238 

Tructt  V.  Chaplin 

364 

367 

V.  Willis 

206 

Trumbull  v.  Tilton 

308 

of  La.  V.  Bowman 

502 

Tnistecs  of  Howard  College  v.  Pace 

191 

of  ilaryland  v. 

Tumdy  i\  Farrar 

118 

Ridgely 

118 

504 

Tul)b  V.  Harrison 

257 

Union  Turnpike  Co.  v.  Jenkins 

8 

Tuckijr  V.  Humphrey 

484 

489 

United  States  v.  Bainbridge   244 

,263 

,282 

I'.  Justices 

105 

i\  Barker 

233 

V.  Moreland 

272 

273 

V.  Blakeney 

263 

V.  Wilson 

602 

V.  Boyd 

503 

V.  Woods 

399 

V.  Buford 

193 

Tuckcrman  v.  French 

501 

V.  Curry 

99 

V.  Newhall 

22 

V.  Hillegas 

505 

Tuffnell  V.  Constable 

383 

V.  Jars-is 

58 

Tullidge  V.  Wade 

553 

V.  Parmele 

48 

Tunison  v.  Cramer 

503 

V.  Tillotson 

505 

Tunnel  v.  Pettijohn 

650 

V.  Wyngall 

50 

Tunno  v.  League 

226 

V.  Yates 

99 

V.  Trezevant 

180 

U.  S.  Bank  v.  Bank  of  Georgia 

220 

Tupper  )•.  Cadwell 

245 

246 

V.  Binney 

142 

Turl)erville  r.  Whitehouse 

261 

V.  Carneal 

235 

Turley  r.  Thomas 

702 

V.  Smith 

227 

Turner  v.  Bissel 

136 

University  of  Vennont  v.  Buell 

377 

378 

V.  Chrisman 

361 

Unwin  v.  Wolseley 

105 

V.  Da  vies 

37 

Upham  V.  Prince 

219 

493 

V.  Leech 

236 

Upton  V.  Gray 

53 

V.  Mason 

521 

Urmston  v.  Xewcomen 

247 

248 

V.  Meymott 

434 

Urquhart  v.  Mclver 

80 

V.  Robinson                  85, 

519 

526 

Usher  v.  De Wolfe 

195 

197 

V.  Rookes 

« 

303 

Uthwatt  V.  Elkins 

106 

V.  Trisby 

245 

V.  Trustees  of  Liverpool 

Docks 

485 

486 

V. 

Tumey  v.  Williams 

103 

V.  Wilson                   641 

645 

648 

Vacter  v.  Flack 

208 

Turrill  v.  Boynton 

513 

Vail  V.  Strong 

437 

i\  Cranday 

632 

Vale  i;.  Bayle 

445 

Turtle  v.  Muncy 

286 

Valentine  v.  Foster 

308 

i".  Worsicy 

306 

Valcjo  r.  Wheeler 

657 

Turton  v.  Benson 

5.55 

Vallctte  r.  Mason 

217 

Tuscumbia  R.  R.  Co.  v.  Rhodes 

215 

Valpy  V.  Gibson 

486 

Tuttle  r.  Cooper 

152 

Van  Alen  v.  Vanderpool 

50 

I'.  Love 

399 

Van  AlstjTio  v.  Van  Slyck 

11 

V.  Swett 

529 

Van  Amringe  v.  Peabody 

80 

Twiss  V.  Masscy 

308 

Van  Atta  r.  ^IcKinncy 

539 

Twopenny  v.  Young 

26 

Van  Bracklin  c.  Fonda 

471 

Twyne's  Case 

443 

Van  Buskiik  i*.  Hart.  Fire  Ins. 

Co. 

183 

Tye  I'.  GwjTino 

388 

V.  Purinton 

683 

Tyler  r.  Carlton 

3.56 

Van  Castecl  v.  Booker 

485 

486 

i".  Binney 

493 

Van  Doren  r.  Everitt 

430 

Tyly  V.  Morrice 

720 

Van  Dyck  r.  Van  Beuren 

381 

Tyre  I'.  Causey 

464 

Van  Dyke  i'.  Davis 

364 

Tyson  i\  Cox " 

512 

Van  Eps  v.  Schenectady 

417 

Van  Homo  v.  Grain 


200 


Ixxxiv 


INDEX   TO   CASES   CITED. 


Van  Ness  v.  Forrest 

140 

Wadsworth  i\  Sherman 

313 

Van  Orden  v.  Van  Orden 

108 

Wagman  v.  Hoag 

512,  513 

V^n  Ostrand  v.  Reed 

472 

Wagner  v.  White 

426 

Van  Efimsdyk  v.  Kane 

152 

Wailing  V.  Toll 

259 

Van  llensselaer  v.  Gallnp 

200 

Wain  I 

.  Bailey 

241 

Van  Santvoord  r.  St.  John 

689, 

690 

I 

.  Warlters 

6,496 

Van  SyckcU  v.  The  Ewing 

648 

Wainwright  v.  Webster 

221 

Van  Vacthcr  v.  Flack 

208 

Wait  V 

Baker 

486 

Van  Valkinburg  v.  Watson 

252, 

254 

i\ 

Morris 

309 

Van  Valen  v.  Russell 

176 

Wait,  in%:e 

177 

Van  Wart  v.  Smith 

74 

Waite 

v.  Foster 

219 

V.  AVooley 

74 

Waitm 

an  V.  Miles 

433 

Van  Winkle  v.  Ketcham 

266 

V.  Wakefield 

288,  289 

Vanada  ?,\  Hopkins 

71 

ex  parte 

163 

Vance  v.  Blair 

139 

Wakefield  &  Bingley  v.  Brown 

21 

V.  Vance 

567 

Walan 

I  V.  Elkins 

6^7,  700 

V.  Ward 

222 

Walbridge  v.  HaiTOon 

309 

V.  Wells 

361 

Walden  v.  Sherliurne 

160 

VanderLilt  i'.    Richmond 

Turnpike 

Walcott  V.  Keith 

443 

Co. 

87 

Waldo 

i\  Belcher 

441 

Vanderliurgh  i'.  Hull 

136 

Waldo  Bank  v.  Lumbert 

158 

Vanderpoel  v.  Van  Allen 

432 

Waldron  r.  Chase 

441 

Vanderslice  v.  Steam  Tow-Boat  Su- 

Walker v.  Bank  of  Mont.  Co. 

236 

perior 

646 

V.  Bank  of  the  State  of  New- 

Varney  v.  Young 

253 

258 

York                         58 

222,  223 

Varnum  r.  Martin 

98 

V.  Birch 

602 

Vassar  r.  Camp 

401 

407 

V.  Boiling 

529 

Vasse  V.  Smith 

264 

268 

V.  Davis                      213 

264,  267 

Vaughan  v.  Aldridge 

5.54 

V.  Fitts 

137 

V.  Fuller 

225 

V.  Hatton 

425 

7J.  Phebe 

345 

V.  Lide 

223 

Vaux  V.  Draper 

21 

V.  May 

112 

Veacock  v.  McCall 

355 

V.  McCuUoeh 

24,  162 

Veazie  v.  Williams 

46,  6.3 

418 

V.  Sargeant 

539 

Vent  V.  Osgood 

244,  263 

523 

V.  Scott 

99 

Vere  v.  Smith 

79 

V.  Sherman 

432 

Vernon  v.  Manhattan  Co. 

144 

V.  Simpson                 246 

293,  295 

Vertue  r.  Jewell 

477 

482 

V.  Smith 

51 

Vibbard  o.  Johnson 

458 

V.  Walker 

354,  355 

Vice  V.  Fleming 

157 

V.   York   &    North    Midland 

Victors  V.  Davies 

397 

Railway  Co. 

690,  707 

Viele  r.  Hoag 

513 

Wallace  v.  Breeds 

441 

Vincent  v.  Horlock 

204 

V.  Jones 

306  n 

Violett  V.  Patton 

6 

205 

•  V.  Kensall 

22 

V.  Powell 

49,  53 

V.  Lewis 

273 

Virany  v.  Warne 

538 

V.  McConnell 

227 

Vivian  v.  Campion 

200 

V.  McLaren 

23 

Voguel,  ex  parte 

180 

V.  Morss 

265 

Volsain  v.  Cloutier 

338 

V.  Patterson 

177 

Voorhees  v.  Earl 

475 

V.  Rippon 

306 

r.  Wait 

276 

V.  Vigus 

658 

Vose  V.  Handy 

197 

Wallei 

V.  Cralle 

320 

Vroom  V.  Van  Home 

112 

Wallis 

V.  Day 

519 

VuUiamy  v.  Noble 

172 

V.  Wallis 

356 

Walls 

V.  Atcheson 

430 

Walpole  V.  Bridges 

635 

W. 

Walsh 

V.  Adams 

177,  178 

Waddcll  V.  Cook 

178 

V.  Bailie 

503 

Waddington  v.  Oliver 

522 

V.  Bishop 

25 

Wade  v'^  Grimes 

285 

V.  Medley 

443 

V.  Simeon 

366 

,  367 

V.  Whitcomb 

58,  62 

Wadlington  v.  Gary 

513 

Walter  v.  Brewer 

655 

Wadsworth  v.  Alcott 

614 

r.  Dewey 

424 

INDEX   TO    CASES   CITED. 


Ixxxv 


Walter  v.  Ross 

239,  489 

Waters 

i;.  Travis 

417 

Walton  V.  Dickcrson 

539 

Watters 

V.  Smith 

365 

V.  Dodson 

493 

Watcrtown  v.  White 

196 

V.  Hanbury 

37 

Wathen 

V.  Sandys 

11 

Walwyii  V.  St.  Quintin 

233,  236 

Watkins 

V.  Baird 

319 

Wankford  v.  Fotlierley 

555 

V.  Birch 

442 

Wansbroufjh  v.  Matoa 

432 

V.  Crouch 

227 

Waples  V.  Hastings 

243 

V.  Halstead 

361 

Warburton  v.  Lytton 

278 

V.  Maule 

205 

Ward  I'.  Allen 

223 

V.  Vince 

43,97 

V.  Fryer 

•    370 

Watkinson  v.  Bank  of  Pcnn 

144 

V.  Hunter 

316 

Watson 

V.  A.  N.  &  B. 

Railway 

Co.     688, 

V.  Johnson 

12,  2&,  163 

690 

V.  Shaw 

441 

V.  Bennett 

117 

Ward's  Case 

433 

v.  Denton 

474 

Wardell  i--.  Mourillyan 

658,  668 

\  King 

61,  62 

Warden  ?-•.  Greer 

638 

J 

;.  McLaren 

493 

Wardens  &c.  of  St.  James  Church  v. 

Moore  208 

Wardens  of  St.  Saviour  v.  Bostock     503 

V.  Smith         200 

Warder  v.  Tucker  363 

Wardwell  i-.  Haight  61,  144 

Ware  v.  Adams  496 

V.  Gav  607,  695 

V.  Hylton  324 

Waring  v.  Favenck  54 

V.  Mason  468 

V.  Waring  310,  474 

Warmstrey  v.  Tanfield  193 

Warner  v.  Booge  370 

V.  Cunningham  173 

V.  Daniels  462 

r.  McKay  53 

Warren  v.  Allnutt  227 

V.  Batcheider  189 

V.  Backrainster  441 

V.  Saxby  539,  540 

r.  Steams  378 

V.  Wheeler  195 

V.  Whitney  308,  361 

in  re  132,  180 

Wan-ender  v.  Warrendcr  298 

Warrick  v.  Warrick  65 

Wart  V.  Smith  74 

Wai-wick  I'.  Bruce  261,276,376 

Washburn  v.  Bank  of  Bellows  Falls    174, 

175,  177 

V.  Goodman  170,  173 

V.  Hale  286 

V.  Jones  628 

r.  Ranisdell  215 

Wason  V.  Rowo  465 

Waterhouse  v.  Skinner  449 

Waterman  v.  Barratt  215,  369 

V.  Gilson  530 

V.  Rol)inson  578 

Waters  v.  Bean  362 

V.  Brogden  40 

V.  Howard  554 

V.  Riley  29,  33 

r.  Simpson  513 

V.  Taylor  61,  173 


V.  Murrell  99 

r.  Randall  366 

V.  Thelkeld  294,  295,  304 

ex  parte  136 

Way  V.  Spcny  308,  309,  361 

Wayde  v.  Carr  702 

Waugh  V.  Carver  142 

V.  Riley  324 

Weatherstone  v.  Hawkins  529 

Weaver  v.  Bachcrt  546,  553 

Webb  V.  Duckingticld  318 

V.  Fox  578 

V.  Plummer  430 

V.  Steele  196 

in  re  620 


Webster  v.  Coffin 

V.  De  Tastet 
V.  McGinnis 
i\  Spencer 
V.  Woodford 

Wedlake  r.  Hurley 


4.50 
75 
288 
111 
311 
191 


Weed  V.  Schenect.  &  Sar.  Railroad 

Co.  687,  689,  690,  721 

V.  Van  Houten  227 

Weeks  v.  Leigiiton  263,  268,  522 

v.  Tyl)ald  399 

I'.  Wead  443 

Weiler  v.  Hoch  513 

Weir  i\  Weir  531 

Welch  V.  Hicks  675 

V.  Mandeville  195 

V.  Whitteniore  4.'j5 

Welclmian  c.  Siuj-gis  1 1 1 

Weld  V.  Cutler  441 

Weldon  v.  Buck  239 

Wells  I'.  Banister  393 

r.  Horton  529 

V.  Padgett  544,  553 

r.  Porter  439 

r.  Steam  Nav.  Co.  646 

V.  Williams  325 

Welsh  V.  Lawrence  7ou 

I'.  Speakman  152 

Wcnnall  i-.  Adncy  358,  359 

Wentworth  i-.  Bullen  373 

v.  Cock  111 


VOL.    I. 


U 


Ixxxvi 


INDEX  TO   CASES   CITED. 


Wentworth  v.  Day 

580 

White  V.  Palmer 

313 

V.  Outhwaite 

479, 

483 

V.  Parker 

115 

Werner  v.  Humphreys 

111 

V.  Proctor 

97 

West  V.  Ashdown 

512 

V.  Reed 

508 

V.  Cunningham 

460, 

467 

V.  Skinner 

54,  58 

V.  Emmons 

449 

V.  Trotter 

75 

V.  Moore 

264 

V.  Westport  Cotton  Man.  Co. 

41 

V.  Newton 

445 

V.  Wiunisimmet  Co. 

645, 

6.52, 

V.  Skip 

126 

177 

V 

701 

V.  Wheeler 

293 

White's  Case 

627 

Westerlo  v.  Evertson 

140 

Whitefield  v.  Longfellow 

320 

Westfall  V.  Parsons 

36 

V.  McLcod 

414, 

467 

Westley  v.  Clarlie 

28 

Whitehead  v.  Anderson 

477 

478 

Westmeath  v.  Salisbury 

300 

V.  Greethem 

373, 

584 

17.  Westmeath 

298 

V.  Reddick 

48 

Weston  V.  Barton 

506, 

508 

V.  Tuckett 

39,  41,  50 

V.  Chamberlain 

36 

V.  Walker 

215 

239 

V.  Davis 

393 

Whitehouse  v.  Frost 

490 

V.  Wright 

67 

Whitesell  v.  Crane 

722 

Westzinthus,  in  re 

489 

490 

Whitesides  v.  Lafferty 

173 

Wetherell  v.  Langston 

26 

17.  Thurlkill 

648 

Wetherill  v.  Neilson 

468 

Whitestown  v.  Stone 

379 

Wethey  v.  Andrews 

217 

Whitfield  V.  Le  Despencer 

622, 

623 

Wetmore  v.  Baker 

700 

Whiting  17.  Brastow 

433 

V.  Wells 

544 

V.  Earle 

258 

Wetzel  V.  Sponsler's  Ex'rs 

511 

Whitingham's  Case 

276 

Weyland  v.  Elkins 

687 

Whitley  t7.  Loftus 

262 

533 

Whaiton  v.  McKenzie 

246 

Whitlock  V.  Dufiield 

422 

V.  O'Hara 

386 

Whitman  v.  Freese 

465 

V.  Walker 

189 

191 

Whitmarsh  v.  Hall 

263 

523 

V.  Williamson 

236 

Whitmore  v.  Gilmour 

53 

Wheatley  v.  Low 

373 

583 

V.  Steamboat  Caroline 

656 

Wheaton  v.  East            243, 

244,  269 

273 

Whitney  v.  Dutch 

270 

V.  Wilmarth 

235 

V.  Ferris 

152 

Wheeler  v.  Collier 

418 

V.  Groot 

509 

V.  Field 

226 

229 

V.  Lee 

587 

V.  Guild 

206 

214 

17.  Meyers 

429 

V.  Eice 

168 

17.  Stearns 

355 

356 

V.  Russell 

382 

V.  Sutton 

464 

V.  Train 

443 

Whiton  V.  Mears 

514 

V.  Van  Wart 

170 

Whitten  v.  Peacock 

201 

V.  Washburn 

513 

Whittier  v.  GrolFam 

225 

Wheelock  v.  AVheclwright 

608 

Whittingliam  v.  Hill 

261 

Wheelwright  v.  Moore 

496 

Whittingham's  Case 

276 

Whelan  v.  Whelan 

357 

AVhittle  V.  Skinner 

198,  362 

370 

Whcldale  v.  Partridge 

115 

Whittlesey  v.  Dean 

233 

Wliichcote  v.  Lawrence 

75 

Whitton  V.  Smith 

156,  160 

171 

Whipple  V.  Dow 

252 

Whitwell  V.  Johnson 

233 

Whitaker  v.  Brown 

158 

159 

Whoregood  v.  Whoregood 

301 

V.  Sumner 

453 

Whvwall  V.  Champion 

261 

V.  Whitaker 

285 

Wibesh  V.  N.  Y.  &  Erie  R. 

R.  Co. 

659 

Wliitbeck  v.  Whitbeck 

369 

Wibur  17.  Tobey 

324 

White  V.  Bluett 

360 

Wicks  V.  Chew 

342 

V.  Boulton 

691 

Wigg  V.  Shuttleworth 

381 

V.  Chambers 

333 

V.  Wigg 

64 

V.  Chapman 

85 

Wiggin  V.  Tudor 

22 

162 

V.  Gushing 

309 

Wiggins  V.  Hammond 

160 

V.  Dougherty 

483 

V.  Hathaway 

623 

V.  Demilt 

373 

,376 

Wigglesworth  v.  Dallison 

426 

430 

V.  Gi fiord 

61 

V.  Steers 

311 

V.  Humphrey 

620 

Wightman  v.  Chartman 

11 

V.  Lady  Lincoln 

76,  85 

V.  Coates 

543 

545 

17.  Murphy 

144 

V.  Wightman 

564 

INDEX   TO   CASES   CITED. 


Ixxxvii 


Wigmore  v.  Jay 

528 

Williams  v.  Roser 

453 

Wij^morc  and  Wells'  Case 

11 

V.  Spafford 

468 

Wilhoiir  V.  Turner 

205,  218 

V.  Taylor 

692,  694 

Willnir  V.  Crane 

365 

V.  Waring 

227 

Wilhurn  v.  Larkin 

48 

V.  Williams 

567 

AVilby  V.  Phinney 

140 

i\  Winans 

222 

Wilcox  V.  Howland 

320 

ex  parte 

173 

V.  Parmelee 

688 

Williams  College  v.  Danforth 

379 

V.  Roatli 

270 

Williams's  Ex'rs  t\  Marshall 

75 

V.  Sing-lctary 

168 

Williamson  v.  Taylor 

529 

Wilde  V.  Waters 

432 

V.  Wilson 

173 

Wilder  v.  Keeler 

180 

Willing  V.  Peters 

308 

Wildes  V.  Savage 

222,  501 

Willings  V.  Consequa 

468 

Wilkes  V.  Jacks 

225 

Willion  V.  Berkley 

324 

V.  Wilkes 

298 

Willis 

V.  Bank  of  England 

66 

Wilkins  v.  Pearce 

157,169 

V.  Dyson 

156 

Wilkinson  v.  Byers 

365 

V.  Peckham 

363 

V.  Candlish 

158 

V.  Twambly 

198,  268 

V.  Coverdale 

582 

V.  Willis 

441,  449 

V.  HaU 

30 

Willison  V.  Watkins 

428 

V.  Jett 

136 

Willoughby  v.  Backhouse 

675 

V.  Lindo 

22 

V.  Homdge 

645,  701 

V.  Lutwidge 

220 

Willson  V.  Smyth 

.302 

r.  Scott 

356 

Wilmhurst  v.  Bowker 

479,  486 

Wilks  V.  Back 

48,  96 

Wilmot  V.  Hurd 

463 

Willan  V.  Willan 

422 

V.  Smith 

541 

WUIard  v.  Bridge 

621 

Wilmot's  Opinions 

277 

V.  Hewlett 

270 

AVilson  V.  Andcrton 

679 

V.  Perkins 

445 

V.  Backhouse 

465 

V.  Stevens 

463 

V.  Baptist  Education  Society   377 

V.  Stone                     276 

376,  545 

v:  Barker 

47 

Willatts  i\  Kennedy 

357,  366 

V.  Barnett 

344 

Willcocks,  ex  parte 

120 

V.  Brett                        74 

577,  .589 

Willes  V.  Glover 

63 

V.  Burr 

304,  539 

Willet  V.  Chambers 

161 

V.  Clements 

222 

Willetz  V.  Green 

526 

V.  Coffin 

98 

Willettz  V.  Buffalo  &  Rochester  R.  R. 

V.  Conine 

178 

Co. 

701 

V.  Coupland 

188 

Williams  v.  Alexander 

369 

V.  Curzon 

123 

V.  Ash                     342 

,  343,  347 

" 

i;.  Ferguson 

459 

V.  Bank  of  U.  S. 

228 

V.  Greenwood 

170,  173 

V.  Barton 

80 

V.  Guyton 

580 

V.  Brown 

336,  337 

V.  Hart 

53 

V.  Branson 

637 

V.  Holmes 

212 

V.  Chester  &  Holyhead 

Rail- 

V.  Hooper 

443 

way 

118 

V.  Hudson 

112 

?.'.  Commercial  Exch. 

Co.     363 

V.  Knott 

611 

V  Dyde 

308 

V.  Little 

595,  600 

V.  Everett 

191 

V.  Marsh 

472 

V.  Fowler 

304 

V.  Milner 

37 

V.  Grant 

637,  647 

V.  Mushett 

299,  300 

r.  Ilan-ison 

263 

V.  Poulter 

47 

r.  Hcnshaw 

139,  140 

V.  Swahcy 

235 

V.  Holcomhe 

610 

V.  Tumraan 

44,  47 

V.  Hutchinson 

257 

V.  Wilson 

97 

r.  Jones 

124 

V.  Y.  &  M.  Railroad  Co 

571 

r.  Little 

217 

V.  York,   Newcastle   & 

Ber- 

V.  Littlefield 

84 

wick  Railway  Co. 

690 

r.  Millington 

418 

Wilt 

'.  Welsh 

264 

V.  ^loor 

261 

Wilts 

icar  V.  Cottrcll 

432 

V.  Moore 

24.5,  274 

Wilts 

lire  (".  Sims 

50,  51,  73 

V.  Nichols 

6S4 

Wine 

1  r.  Keely 

195,  196 

V.  Prince 

297 

'  Wine 

lendon  v.  Ilatticld 

326 

Ixxxviii 


INDEX   TO   CASES   CITED. 


Winchester  v.  Union  Bank 

111 

Wooderman  v.  Baldock 

442 

Windhiim  v.  Windham 

421 

Woodes  V.  Dennett 

58 

Windhiun  Bank  v.  Norton 

226 

Woodford  v.  McClenahan 

52 

Windham's  Case 

18,421 

Woodhouse  v.  Meredith 

75 

Windle  v.  Andrews 

238 

V.  Shepley 

.543, 

547 

Windsor,  Dean  and  Chapter 

of,    V. 

Woodin  V.  Burfoi^ 

40,  5i 

,  63 

Gover 

117 

V.  Foster 

235 

Wing  V.  Clark 

449 

Woodleife  v.  Curties 

635 

V.  Hurlburt 

304 

Woodlife's  Case 

635 

V.  Mill 

394 

Woodman  v.  Chapman 

286 

Winn  V.  Bowles 

193 

V.  Eastman 

226 

V.  Southgate 

522 

V.  Thurston 

231 

Winship  v.  Bank  of  U.  S. 

158,  160 

WoodruiF  v.  Hinman 

380 

Wiuslow  V.  Crocker 

286 

V.  Logan 

262, 

533 

V.  Merchants  Ins.  Co 

431,  454 

V.  Woodruff 

567 

V.  Tarbox 

453 

Woods  V.  Blodgett 

99 

Winson  v.  McLellan 

453 

V.  Devin 

653 

721 

Winsor  v.  Griggs 

55 

V.  Ridley 

109, 

208 

V.  Loml)ard                460,  465,  471  | 

Woodward  v.  Cowing 

386 

Winston  v.  Ewing 

177 

V.  Thacher 

475 

V.  Westfeldt 

213 

Wookey  r.  Pole 

240 

Winstone  v.  Linn 

534 

Wooldridge  v.  WUkins 

126 

128 

Winter  v.  Branch  Bank 

511 

Wooley  V.  Batte 

37 

Wintermute  v.  Clarke 

624,  630 

V.  Clements 

235 

AVinterstoke  Hundred's  Case 

20 

Woolf  V.  Beard 

701 

Wintle  V.  Crowther 

71 

Woolsey  v.  Crawford 

239 

Wise  V.  Metcalfe 

425 

Woomley  v.  Lowry 

217 

V.  Wilson 

522,  534 

Word  V.  Vance 

264 

Wiseman  v.  Roper 

364 

Wordell  v.  Smith 

443 

V.  Vandeput 

476 

Wordsworth  v.  Willan 

702 

Wiswall  V.  Brinson 

90 

Wormack  v.  Rogers 

362 

Withers  v.  Bircham 

14,  15,  30 

Worrall  v.  Munn 

47 

V.  Lyss 

441 

Woorell's  Appeal 

104 

,115 

Witherspoon\j.  Dubose 

286 

Worsley  v.  Scartorough 

65 

Withington  v.  Herring 

41,  50 

V.  Wood 

383 

Witte  V.  Derby  Fishing  Co. 

120 

Wotton  V.  Cooke 

29 

Witter  I'.  Ilichards 

176 

Wray  V.  Milestone 

139 

Wodcll  V.  Coggeshall 

257,  258 

Wren  v.  Kirton 

75,76 

Wodrop  V.  Ward 

180 

Wrexham  i'.  Huddleston 

173 

Wolcott  V.  Van  Santvoord 

227 

Wright  V.  Bigg 

405 

Wolff  V.  Koppel 

79 

V.  Burrough.es 

434 

WoUenwebber  v.  Ketterlinus 

225 

V.  Crookes 

47 

Wolmer's  Case 

52 

V.  Dekline 

416 

Wood  I'.  Ashe 

460,  462 

V.  Gihon 

534 

V.  Benson 

380 

V.  Lawes 

485 

V.  Corl 

230 

V.  Morley 

495 

V.  Curling 

618 

V.  Nutt 

495 

V,  Dudley 

453 

V.  Post 

22 

V.  Goodridge 

96 

V.  Proud 

75 

V.  Jones 

482 

V.  Russell 

495 

,  507 

V.  Mytton 

206,  207 

V.  Shawcross 

234 

V.  Partridge 

196,  197 

V.  Simpson 

495 

V.  Peny 

196 

V.  Steele 

27C 

,  271 

V.  Pugh 

238 

V.  Wilcox 

87 

V.  Roach 

482 

V.  Wright          103, 

193,  306 

,  542 

V.  Simmons 

286 

Wrotesley  v.  Adams 

421 

V.  Smith 

464 

Wyat  V.  Buhner 

215 

v.  Warren 

215 

Wyburd  v.  Stanton 

85 

and  Foster's  Case 

437 

Wyke  V.  Rogers 

513 

Woodcock  V.  Bennet 

414 

Wyld  V.  Pickford 

i__     T> 

713 

1_       J  1 

V.  Nuth  436 

V.   Oxford    &    Worcester 
R.  R.  Co.  512 


Wyman  v.  Hallowell  &  Augusta  Bank  41 
Wyndham  v.  Way  432 

Wynn  v.  Allard  700,  701 


INDEX    TO    CASES   CITED. 


Ixxxix 


Wynn  v.  Can-ell 

327 

Youny  L\  Adams 

220 

Wynne  v.  Price 

414 

ii.  Axtell 

143 

V.  Raikes 

222 

V.  Bryan 
V.  Hunter 

238 
147 

Y. 

V.  Keifrlilcy 
V.  McClueV 

177 
443 

Yarboroufrh  v.  Bank  of  Englanc 

117 

V.  Smith 

659 

681 

Yard  v.  Eland 

376 

YounfTs  i:  Lee 

216 

235 

Yate  V.  Roules 

23 

Youfjua  V.  Xixon 

385 

446 

Yates  V.  Boen 

311 

Yoxtheimer  v.  Keyser 

308 

i».  Bond 

457 

V.  Brown 

90 

V.  Donaldson 

32 

Z. 

V.  Hoppe 

58 

'•.  Pyni 

465 

Zachrison  v.  Ahman 

80 

Yeatman  v.  Woods 

127 

Zagury  v.  Furnell 

441 

Yonc^  V.  Rc}Tioll 

495 

Zane  v.  Zane 

364 

367 

York  Buildinjrs  v.  Mackenzie 

75 

Zerbee  i\  Miller 

532 

York  V.  Grindstone 

629, 

630 

Zinck  V.  Walker 

444 

Yorkc  )•.  Grcnaugh                829, 

630, 

682 

Zouch  r.  Parsons 

243 

Yorks  r.  Peck 

11 

,  29 

ZwinRcr  v.  Samuda 

240 

PART    I. 
THE   LAW    OF   CONTRACTS 


CONSIDERED   IN    REFERENCE   TO 


THE     OBLIGATIONS 


ASSUMED    BY 


THE    PARTIES. 


VOL.  I. 


THE    LAW    OF    CONTRACTS. 


PRELIMINARY  CHAPTER. 
SECTION  I. 

OF  THE  EXTENT  AND   SCOPE   OF   THE   LAW   OF   CONTRACTS. 

The  Law  of  Contracts,  in  its  widest  extent,  may  be  regarded 
as  including  nearly  all  the  law  which  regulates  the  relations  of 
human  life.  Indeed,  it  may  be  looked  upon  as  the  basis  of 
human  society.  All  social  life  presumes  it,  and  rests  upon  it ; 
for  out  of  contracts,  express  or  implied,  declared  or  understood, 
grow  all  rights,  all  duties,  all  obligations,  and  all  law.  Almost 
the  whole  procedure  of  human  life  implies,  or,  rather,  is,  the 
continual  fulfilment  of  contracts. 

Even  those  duties,  or  those  acts  of  kindness  and  affection, 
which  may  seem  most  remote  from  contract  or  compulsion  of 
any  kind,  are  nevertheless  within  the  scope  of  the  obligation  of 
contracts.  The  parental  love  which  provides  for  the  infant 
when,  in  the  beginning  of  its  life,  it  can  do  nothing  for  itself, 
nor  care  for  itself,  would  seem  to  be  so  pure  an  offering  of 
affection,  that  the  idea  of  a  contract  could  in  no  way  belong  to 
it.  But  even  here,  although  these  duties  arc  generally  dis- 
charged from  a  feeling  which  borrows  no  strength  from  a  sense 
of  obligation,  there  is  still  such  an  obligation.  It  is  implied  by 
the  cares  of  the  past,  which  have  perpetuated  society  from  gen- 
eration to  generation  ;  by  that  absolute  necessity  which  makes 

[3] 


4*  THE   LAW   OP   CONTRACTS. 

the  performance  of  these  duties  the  condition  of  the  preserva- 
tion of  human  life  ;  and  by  the  implied  obligation  on  the  part 
of  the  unconscious  objects  of  this  *care,  that  when,  by  its 
means,  they  shall  have  grown  into  strength,  and  age  has 
brought  weakness  upon  those  to  yhom  they  are  thus  indebted, 
they  will  acknowledge  and  repay  the  debt.  Indeed,  the  law 
recognizes  and  enforces  this  obligation,  to  a  certain  degree,  on 
both  sides,  as  will  be  shown  hereafter. 

It  would  be  easy  to  go  further,  and  show  that  in  all  the  rela- 
tions of  social  life,  its  good  order  and  prosperity  depend  upon 
the  due  fulfilment  of  the  contracts  which  bind  all  to  all.  Some- 
times these  contracts  are  deliberately  expressed  with  all  the 
precision  of  law,  and  are  armed  with  all  its  sanctions.  More 
frequently  they  are,  though  still  expressed,  simpler  in  form  and 
more  general  in  language,  and  leave  more  to  the  intelligence, 
the  justice,  and  honesty  of  the  parties.  Far  more  frequently 
they  are  not  expressed  at  all ;  and  for  their  definition  and  ex- 
tent we  must  look  to  the  common  principles  which  all  are  sup- 
posed to  understand  and  acknowledge.  In  this  sense,  contract 
is  coordinate  and  commensurate  with  duty;  and  it  is  a  familiar 
principle  of  the  law,  of  which  we  shall  have  much  to  say  here- 
after, and  which  has  a  wide  though  not  a  universal  application, 
that  whatsoever  it  is  certain  that  a  man  ought  to  do,  that  the  . 
law  supposes  him  to  have  promised  to  do.  '•  Implied  con- 
tracts," says  Blackstone,  (vol.  ii.  p.  443,)  "  are  such  as  reason 
and  justice  dictate,  and  which,  therefore,  the  law  presumes 
that  every  man  undertakes  to  perform."  These  contracts  form 
the  web  and  woof  of  actual  life.  If  they  were  wholly  disre- 
garded, the  movement  of  society  would  be  arrested.  And  in  so 
far  as  they  are  disregarded,  that  movement  is  impeded  or  dis- 
ordered. 

If  all  contracts,  express  or  implied,  were  carried  into  full 
effect,  the  law  would  have  no  office  but  that  of  instructor  or 
adviser.  It  is  because  they  are  not  all  carried  into  effect,  and 
it  is  that  they  may  be  carried  into  effect,  that  the  law  exercises 
a  compulsory  power. 

Hence  is  the  necessity  of  law ;  and  the  well-being  of  society 
depends  upon,  and  may  be  measured  by,  the  degree  in  which 
[4] 


PKELIMINARY   CHAPTEE.  O 

the  law  construes  and  interprets  all  contracts  wisely ;  elinni- 
nates  from  them  whatever  is  of  fraud,  or  error,  or  otherwise 
wrongful;  and  carries  them  out  into  their  full  and  proper 
*efFect  and  execution.  These,  then,  are  the  results  which  the  law 
seeks.  And  it  seeks  these  results  by  means  of  principles  ;  that 
is,  by  means  of  truths,  ascertained,  defined,  and  so  expressed 
as  to  be  practical  and  operative.  There  are  many  of  the  rules 
of  law  which  do  not  come  within  this  definition  of  principles. 
They  are  formal  or  technical;  but  they  are  subsidiary  to,  and 
needed  or  useful  for  the  comprehension,  application,  and  en- 
forcement of  principles;  and  these  formal  rules  derive  their 
whole  power  and  value  from  the  principles  which  they  explain 
or  enforce  and  perpetuate. 

It  is  said  that  the  law  seeks  these  results  by  means  of  prin- 
ciples; and  these  again,  in  their  most  general  form,  may  be 
said  to  be,  first,  those  rules  of  construction  and  interpretation 
which  have  for  their  object  to  find  in  a  contract  a  meaning 
which  is  honest,  sensible,  and  just,  without  doing  violence  to 
the  expressions  of  the  parties,  or  making  a  new  contract  for 
them;  and,  secondly,  those  which  discharge  from  a  contract 
whatever  would  bring  upon  it  the  fatal  taint  of  fraud,  or  is 
founded  upon  error  or  accident,  or  would  work  an  injury. 
And  if  these  elements  of  wrong  are  so  far  vital  to  any  contract, 
that  when  they  are  removed  it  perishes,  then  the  law  annuls  or 
refuses  to  enforce  that  contract,  unless  a  still  greater  mischief 
would  thereby  be  done. 

Subsidiary  to  these  are  the  rules  and  processes  of  the  law,  by 
means  whereof  a  contract,  which  in  itself  is  good,  and  has  been 
properly  construed,  and  is  free  from  all  removable  elements  of 
wrong,  is  enforced,  or  carried  into  execution. 

1*  [5  J 


6*  THE   LAW   OF   CONTRACTS. 

SECTION    II. 

DEFINITION    OF   CONTRACTS. 

A  contract,  in  legal  contemplation,  is  an  agreement  between 
two  or  more  parties,  for  the  doing  or  not  doing  of  some  speci- 
fied thing,  (a) 

*Ithas  been  said  that  the  word  agreement  is  derived  from  the 
phrase  "  aggregatio  menthim"  {b)  This  is  at  least  doubtful, 
and  was  probably  suggested  by  the  wish  to  illustrate  that  prin- 
ciple of  the  law  of  contracts  which  makes  an  agreement  of 
minds  of  the  parties  or  the  consent  and  harmony  of  their  in- 
tentions, essential.  They  must  both  propose  and  mean  the 
same  thing,  and  in  the  same  sense. 

The  word  "  contract "  is  of  comparatively  recent  use,  as 
a  law  term.  Formerly,  courts  and  lawyers  spoke  only  of 
"  obligations,"  (c)  —  meaning  thereby  "bonds,"  in  which  the 
word  "oblige"  is  commonly  used  as  one  of  the  technical  and 
formal  terms,  — "  covenants,"  and  "  agreements,"  which  last 
word  was  used  as  we  now  use  the  word  "  contract."  The 
word  "  promise  "  is  often  used  in  instruments,  and  sometimes 
in  legal  proceedings.  "  Agreement  "  is  seldom  applied  to 
specialties;  "contract"  is  generally  confined  to  simple  con- 
tracts ;   and  "  promise  "   refers  to  the  engagement  of  a  party, 

(a)  "A  contract   is   an   a<jrecment   in  is  a  drawing  together,  so  as  in  contracts 

which  a  party  uiulertakcs  to  do,  or  not  to  every  thing  which  is  requisite  ought  to 

do,  a  particuhir  thing."     Marshall,  C  J.,  concur  and  meet  together;  namely,  the 

Sturges  i\  Crowninshield,  4  Wheat.  197.  consideration,  of  the  one  side,    and  the 

— "  A  conti-act  is  an  agreement,  upon  suf-  sale  or  the  promise  on   the   other  side. 

ificicnt  consideration,  to  do  or  not  to  do  a  But  to  maintain  an  action  upon  an  as- 
particular  thing."  2  Blackstone's  Comm.  sumpsit,  the  same  is  not  requisite,  for  it  is 
446.  —  In  Sidenham  and  Worlington's  sufficient  if  there  he  a  moving  cause,  or 
case,  2  Leon.  224,  225,  which  was  an  as-  consideration  precedent,  for  which  cause 

.  su7n}>sit,  founded  upon  an  executed  consid-  or  consideration  the  promise  was  made." 

•  eration,  Periam,  J.,  conceived  that  the  ac-  —  See  also  the  able  article  on  the  defini- 
tion did  well  lie,  and  he  said  there  was  a  tion  and  division  of  contracts,  20  Am. 
.great  dift'erence  between  contracts  and  that  Jur.  1 . 

•  case:  "For  in  contracts  upon  sale  the  (i)  Per  Pollard,  serJeant,  arguendo  in 
consideration  and  the  promise,   and  the     Reniger  w.  Fogossa,  Plowden,  17. 

-sale,  ought  to  meet  together,  for  a  con-  (c)  See  the  Abridgments  of  Brooke, 
tract  is  derived  from  co/i  and  trahcre,  which     Eollc,  Bacon,  &c. 

[G] 


I 

PRELIMINARY   CHAPTER.  *7 

without  reference  to  the  reasons  or  considerations  for  it,  or  the 
duties  of  other  parties. 

In  the  above  definition  of  a  contract,  no  mention  is  made  of 
the  consideration.  The  Statute  of  Frauds  requires,  in  many 
cases,  and  for  many  purposes,  that  the  "agreement"  shall  be 
in  writing,  and  some  note  or  memorandum  thereof  be  signed 
by  the  party  sought  to  be  charged.  Under  this  provision,  it  has 
been  much  controverted  whether  the  word  "  agreement"  so  far 
implies  a  "  consideration,"  that  this  also  must  be  in  writing. 
This  question  will  be  considered  in  a  subsequent  part  of  this 
work,  (d)  We  have  not  included  the  *consideration  in  the 
definition  of  the  contract,  because  we  do  not  regard  it  as,  of 
itself,  an  essential  part  thereof.  But  for  practical  purposes  it  is 
made  so  by  some  important  and  very  influential  rules,  and  we 
shall  presently  treat  of  the  consideration  as  one  of  the  elements 
of  a  legal  contract. 

SECTION    III. 

CLASSIFICATIOX   OF   CONTRACTS. 

The  most  general  division  of  contracts  is  into  contracts  by 
specialty,  and  simple  contracts. 

Contracts  by  specialty  are  those  which  are  reduced  to  writing 
and  attested  by  a  seal  —  or,  to  use  the  common  phrase,  contracts 
under  seal ;  and  contracts  of  record.  These  last  are  judgments, 
recognizances,  and  statutes  staple.  But  the  term  "  contracts  by 
specialty  "  is  sometimes  confined  to  contracts  under  seah  In 
the  present  work,  we  shall  speak  chiefly,  but  not  exclusively,  of 
contracts  not  under  seal. 

Simple  contracts  are  all  of  those  which  are  not  contracts  by 
specialty.  It  is  not  accurate  in  point  of  language  to  distinguish 
between  verbal  contracts  and  vrilten  contracts  ;  for  whether  the 
words  are  written  or  spoken,  the  contracts  are  equally  verbal^ 
or  expressed  in  words.     Nor  is  it  accurate  in  point  of  law  to 

(rf)  And  sec  Wain  r.  Warlters,  5  E.ist,     Packard  v.  Richardson,   17    Mass.   122; 
16;  Saunders  r.  Wakefield,  4  13.  &  Aid.     Sago  v.  Wilcox,  G  Conn.  81. 
595 ;  Violett  r.  Tatton,   5  Craneh,  142  ; 

[7] 


8* 


THE  LAW   OF   CONTRACTS. 


distinguish  between  written  and  parol  contracts.(e)  For  whether 
they  be  written  or  only  spoken,  they  are,  in  law,  if  not  sealed, 
equally  and  only  parol  contracts.  For  some  purposes,  and 
especially  by  the  requirements  of  the  Statute  of  Frauds,  the  evi- 
dence of  the  contract  must  be  in  writing;  and  when  it  is  in 
writing,  some  peculiar  rules  of  law  apply  to  it.  (/)  But  it  is  a 
mistake  to  rest  upon  this  a  legal  *distinction  between  written 
and  oral  contracts ;  and  from  this  mistake,  some  confusion  has 
arisen,  (g-) 

The  essentials  of  a  legal  contract,  of  which  we  shall  now  pro- 
ceed to  treat,  are,  first,  the  Parties,  for  we  cannot  conceive  of  a 
contract  which  has  no  parties  ;  secondly,  the  Consideration,  for 
this  is,  in  legal  contemplation,  the  cause  of  the  contract;  thirdly, 
the  Assent  of  the  Parties,  without  which  there  is  in  law  no  con- 
tract ;  and,  fourthly,  the  Subject- Matter  of  the  Contract,  or  what 
the  parties  to  it  propose  as  its  effect. 


(e)  "  The  law  makes  no  distinction  in 
contracts,  except  between  contracts  which 
are,  and  contracts  which  are  not,  under 
seal.  I  recollect  one  of  the  most  learned 
judges  who  ever  sat  upon  this  or  any  other 
bench,  being  very  angry  when  a  distinction 
was  attempted  to  be  taken  between  parol 
and  written  contracts,  and  saying,  '  They 
are  all  parol,  unless  under  seal.'  "  Lord 
Abinger,  C.  B.,  in  Beckham  v.  Drake,  9 
M.  &  W.  92. 

(f)  And  independently  of  the  statute, 
a  familiar  rule  of  judicial  procedure  for- 
bids the  cdntradiction  by  one  sort  of  evi- 
dence of  a  state  of  things  declared  to  exist 

[8] 


by  a  higher  sort.  In  this  sense  it  is  un- 
cjuestionably  true,  as  Lord  Ellenboroitr/h 
said  in  Hoare  v.  Graham,  3  Campb.  57, 
that  to  incorporate  with  a  written  contract 
an  incongruous  parol  condition  is  contrary 
to  first  principles. 

{(])  Wilmot,  J.,  Pillans  v.  Van  Mierop, 
3  BuiT.  1670-71,  and  Parker,  J.,  Stack- 
pole  V.  Arnold,  11  Mass.  27,  30,  recognize 
three  classes  of  contracts,  but  are  not  sus- 
tained l)v  the  authorities.  See  Rann  v. 
Hughes,  7  T.  E.  350,  note ;  Thacher  v. 
Dinsmore,  5  Mass.  299,  301  ;  Cook  v. 
Bradley,  7  Conn.  57  ;  IJnion  Turnpike 
Co.  I'.  Jeuldns,  1  Gaines's  R.  386. 


BOOK    I . 

OF   PARTIES   TO   A   CONTRACT. 


CHAPTER     I. 

CLASSIFICATION   OF   PARTIES. 

Parties  may  act  independently  and  severally,  or  jointly,  or 
jointly  and  severally. 

They  may  act  as  representative  of  others,  as 

Agents, 

Factors  or  Brokers, 

Servants, 

Attorneys, 

Trustees, 

Executors  or  Administrators, 

Guardians. 
They  may  act  in  a  collective  capacity,  as 
•■  Corporations, 

Joint-Stock  Companies,  or  as 

Partnerships. 
Thoy  may  be  New  Parties, 

By  Novation, 

By  Assignment, 

By  Indorsement. 
They  may  be  Parties  disabled  in  whole  or  in  part,  as 

Infants, 

Married  Women, 

Bankrupts  or  Insolvents, 

[9] 


10*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

*Non  Compotes  Mentis, 
Drunkards, 
Spendthrifts, 
Seamen, 
Aliens, 
Slaves, 
Outlaws, 
Attainted, 
Excommunicated. 
These  subjects  we  will  proceed  to  consider  separately. 
[10] 


I 


CH.  n.] 


OF  JOINT   PARTIES. 


*11-*12 


^CHAPTER  IL 


OF   JOINT   PARTIES. 


Sect.  I.  —  Whether  Parties  are  Joint  or  Several, 


WheiieviJr  an  obligation  is  undertaken  by  two  or  more,  or  a 
right  given  to  two  or  more,  it  is  the  general  presumption  of  law 
that  it  is  a  joint  obligation  or  right.  Words  of  joinder  are  not 
necessary  for  this  purpose ;  but,  on  the  other  hand,  there  should 
be  words  of  severance,  in  order  to  produce  a  several  responsi- 
bility or  a  several  right,  (h) 

Whether  the  liability  incurred  is  joint,  or  several,  or  such 
that  it  is  either  joint  or  several  at  the  election  of  the  other  con- 
tracting party,  depends  (the  rule  above  stated  being  kept  in 
view)  upon  the  terms  of  the  contract,  if  they  are  express ;  and 
where  they  are  not  express,  upon  the  intention  of  the  parties  as 
gathered  from  all  the  circumstances  of  the  case.  (/)     *It  may  be 


(/()  Hill  r.  Tucker,  1  Taunt.  7  ;  llat- 
sall  r.  Griffith,  4  Trr.  487 ;  Kinjr  v. 
Hoarc,  13  M.  &  W.  499,  per  ParLr,  B. ; 
En^rlish  r.  IJlundell,  8  C.  &  Pavne,  3.32 ; 
Yorks  V.  Peek,  14  Barb.  644.  — With  re- 
spect to  instruments  under  seal,  it  is  said  in 
Shep.  Touchstone,  375  :  "  If  two,  tlnee,  or 
more  bind  tiierasel  ves  in  an  obligation,  thus, 
ohliijamuA  rios,  and  say  no  more,  the  obliga- 
tion is,  and  shall  l)e  taken  to  be,  joint  only, 
and  not  several."  And  see  Ehle  i".  Purdy, 
6  Wend.  629. — If  an  instrument,  worded 
in  tiie  singular,  is  executed  by  several,  the 
obligation  is  a  joint  and  several  one ;  and 
those  who  thus  execute  it  may  be  sued 
cither  separately  or  together,  llemmcn- 
wav  V.  Stone,  7  Mass.  .58  ;  Van  Alst>Tic 
V.  Van  Slyck,  10  Barb.  383;  Powell,' J., 
Saycr  v.  Chavtor,  1  Lutw.  695,  697  ; 
Marsh  v.  Ward,  Peake,  N.  P.  C.  130 ; 
Clerk  V.  Blackstock,  Holt,  N.  P.  C.  474  ; 
and  see  Hall  v.  Smith,  1  B.  &,  Cress.  407. 
But  in  Slater  v.  Magraw,  12  G.  &  Joiins. 
265,  where  (on  the  sale  of  a  negro)  the 
fonn  of  the  covenant  was,  "  I  do  hereby 
obligate  to  give  tlie  said  William  Slater  a 
good  title  for  said  boy  when  called  on.     W. 


M.  F.Magraw,  (seal. )  Security:  George  II. 
Dutton,  (seal,)  " — a  demurrer  to  a  count 
declaring  on  this  as  a  joint  and  several 
covenant,  was  sustained,  and  the  court 
held,  that  the  covenant  to  convey  the  title 
was  the  covenant  of  Magraw  alone  ;  that 
the  covenant  of  Dutton  was  a  several  cov- 
enant as  surety  that  ^lagraw  would  make 
the  title  when  called  on  for  that  purpose  ; 
and  that  tlierefore  an  action  on  the  cove- 
nant to  convey  could  not  be  maintained 
against  them  jointly.  See  also,  I)c  Kid- 
der V.  Schermerhoni,  10  Barb.  638  ;  Allen 
V.  Fosgate,  11  How.  Pr.  Reps.  218. 

(/)  Wilde,  J.,  in  Peckham  v.  North  Par- 
ish in  Haverhill,  16  Pick.  274,  283.  In 
the  following  cases  the  liability  was  held 
tobejoin^; — Wigmorc  and  Wells's  case, 
3  Leon.  206  ;  Wightman  v.  Chartman, 
Gouldsborough,  83  ;  Anonvmous,  Moore, 
260;  Coleman  ;•.  Sher\vin",  1  Salk.  137, 
1  Show.  79  ;  Bvers  r.  Uobev,  I  H.  Bl. 
236  ;  Exall  v.  Partridge,  8  t.  K.  308  ; 
Wathcn  i-.  Sandys,  2  Camp.  640  ;  Forster 
V.  Tavlor,  3  id.  49  ;  Eaden  i:  Titchmiysh, 
1  Ad."&  El.  691  ;  London  Gas  Light  Co. 
V.  NichoUs,  2  C.  &  P.  365 ;  Phillips   v. 

[11] 


12- 


THE   LAW   OF   CONTRACTS. 


[book 


doubted,  however,  whether  any  thing  less  than  express  words 
can  raise  at  once  a  joint  and  a  several  liability. 

Where  the  obligation  is  joint  and  several,  an  ancient  and 
familiar  rule  of  law  forbids  it  to  be  treated  as  several  as  to  some 
of  the  obligors,  and  joint  as  to  the  rest.  The  obligee  has  the 
right  of  choice  between  the  two  methods  of  proceeding  ;  but  he 
must  resort  to  one  or  the  other  exclusively,  and  cannot  combine 
both  ;  he  must  proceed  either  severally  against  each,  or  jointly 
against  all.  (j) 


Bonsall,  2  Binney,  138.  In  the  following 
cases  the  liability  was  held  to  be  several  : 
—  39  H.  6,  9,  pi.  15  ;  Bio.  Abr.  Covenant, 
pi.  27  ;  S.  C.,Viner  Abr.  Covenant,  (M.  a.) 
pi.  1  and  2 ;  S.  C,  Mathewson's  case,  5 
Co.  K.  22  ;  Brown  v.  Doyle,  3  Camp. 
51,  note;  Gibson  v.  Lnpton,  9  Bing.  303; 
Collins  V.  Prosser,  1  B.  «&  Cress.  682  ; 
Hudson  V.  Robinson,  4  M.  &  Sel.  475 ; 
Smith  V.  Pocklington,  1  Cr.  &  Jer.  445  ; 
Fell  V.  Goslin,  11  E.  L.  &  E.  554  ;  Harris 
V.  Campbell,  4  Dana,  586  ;  M'Cready  v. 
Freedly,  3  Eawle,  251 ;  Ernst  v.  Bartle, 

1  John's.  Cas.  319 ;  Ludlow  i'.  McCrea,  1 
Wend.  228  ;  Howe  r.  Handley,  25  Maine, 
116.  In  the  following  cases  the  liability 
was  held  to  be  joint  and  several :  —  Con- 
stable V.  Clobeiy,  Pop.  161  ;  Burden  v. 
EeiTers,  1  Sid.  189  ;  Hankinson  r.  San- 
dilaus,  Cro.  Jac.  322 ;  Linn  v.  Crossing, 

2  Rol.  Abr.  148,  Obligation  (G) ;  Lilly  v. 
Hodges,  1  Stra.  553,  8  Mod.  1 66  ;  Bob- 
inson  v.  Walker,  1  Salk.  393,  7  Mod.  153. 
The  words  there  were,  convenhmt  pro  se  et 
quolibet  eonim.  But  Holt,  C.  J.,  dissenting 
from  the  majority,  thought  this  might  be 
considered  joint  by  reason  of  the  word  of 
agreement  (conveniunt),  being  in  the  plural, 
and  not  being  repeated  in  the  singular,  so 
as  to  express  a  distinct  several  promise. 
Bolton  V.  Lee,  2  Lev.  56  ;  Sower  v.  Brad- 
field,  Cro.  Eliz.  422  ;  May  r.  Woodward, 
Freeman,  248  ;  Envs  v.  Donnithorne,  2 
Burr.  1190 ;  Mansell  v.  Burredge,  7  T.  R. 
352;  Bangor  Bank  v.  Treat,  6  Greenl. 
207. 

(j)  Streatfield  v.  Halliday,  3  T.  R.  782; 
Cabell  V.  Vaughan,  1  Wm's.  Saund.  291, 
f,  n.  4  ;  Bangor  Bank  v.  Treat,  6  Greenl. 
207.  In  the  case  of  a  joint  and  several 
debt,  judgment  (without  satisfaction)  re- 
covered against  one  of  the  debtors,  is  no 
bar  to  an  action  against  another.  Per 
Popham,  C.  J.,  Brown  v.  Wootton,  Cro. 
Jac.  74,  cited  bv  Parke,  B.,  in  Iving  v. 
Hoare,  13  M.  &W.  504.— -But  a  judg- 

[12] 


ment,  though  unsatisfied,  recovered  against 
one  of  two  joint  debtors,  is  a  bar  to  an 
action  against  the  other,  or  to  an  action 
against  both.  3  Kent's  Com.  30 ;  Ward  v. 
Johnson,  13  Mass.  148  ;  King  v.  Hoare,  13 
M.  &  W.  494.  —  In  Robertson  r.  Smith,  18 
Johns.  484,  which  was  the  case  of  a  sol- 
vent donnant  partner,  discovered  after 
judgment  obtained  against  the  insolvent 
ostensible  partner,  Spencer,  J.,  while  hold- 
ing the  plaintiff's  action  to  be  barred, 
suggested  tliat  the  court,  on  application, 
might  be  induced  to  vacate  the  former 
judgment. — But  Collins  v.  Lcmasters,  1 
Bailey,  345  ;  Treasurers  v.  Bates,  2  Bail. 
362,  and  Sheehy  v.  JMandeville,  6  Cranch, 
253,  are  contra.  In  Iving  v.  Hoare,  13  M. 
&  W.  494,  Sheehy  v.  Mandeville  was 
cited,  Init  Parke,  B.,  giving  the  judgment 
of  the  court,  observed :  "  During  the  ar 
gument,  a  decision  of  the  Chief  Justice 
Marshall,  in  the  Supreme  Court  of  the 
United  States,  was  cited  as  being  contrary 
to  the  conclusion  this  court  has  come  to ; 
the  case  is  that  of  Sheehy  v.  Mandeville. 
We  need  not  say  we  have  the  greatest 
respect  for  every  decision  of  that  eminent 
judge  ;  but  the  reasoning  attributed  to 
him  by  that  report  is  not  satisfactoiy  to 
us  ;  and  we  have  since  been  fui'nished 
with  a  report  of  a  subsequent  case,  in 
which  that  authority  was  cited  and  con- 
sidered, and  in  which  the  Supreme  Judi- 
cial Court  of  Massachusetts  decided  that, 
in  an  action  against  two  on  a  joint  note, 
a  judgment  against  one  was  a  bar.  Ward 
V.  Johnson,  13  Tyng's  Rep.  148." — Where 
one  contracts  in  writing  with  three  persons 
to  give  a  bill  of  .sale  of  two  thirds  of  a 
vessel  to  two  of  them,  and  of  one  third  to 
the  other,  and,  in  pursuance  of  the  con- 
tract, does  convey  two  thkds  ;  this  is  not 
a  severance  of  the  cause  of  action,  and  a 
suit  may  be  maintained  for  the  price 
against  the  whole.  Marshall  v.  Smith,  15 
Maine,  17. 


CH.  II.]  OF   JOINT   PARTIES.  13* 

The  question  whether  the  right  under  a  contract  is  joint  *or 
otherwise,  enters  more  intimately  into  the  nature  of  the  contract, 
and  therefore  is  of  more  importance  ;  and  it  is  at  the  same  time 
of  greater  difficulty. 

As  a  contract  with  several  persons,  for  the  payment  to  them 
of  a  sum  of  money,  is  a  jaint  contract  with  all,  and  all  the 
payees  have  therein  a  joint  interest,  so  that  no  one  can  sue 
alone  for  his  proportion;  so,  the  designating  of  the  share  of 
each  will  not  create  such  a  se^^erance  of  interest  as  to  sustain  a 
several  action  ;  but  all  must  join  in  an  action  for  the  whole.  (A-) 
But  if  the  contract  contains  distinct  grants,  or  promises  of  dis- 
tinct sums  to  distinct  payees,  they  would  then  have  several 
interests,  and  certainly  may,  perhaps  must,  bring  separate 
actions.  (/) 

Where  there  are  three  or  more  obligees  or  promisees,  the 
contract,  if  treated  as  joint  by  any,  must  be  treated  as  joint  by 
all.  In  no  case  can  two  sue  together,  leaving  tiie  other  to  seek 
his  remedy  upon  the  same  contract,  by  himself,  (w) 

If  a  contract  expressly,  and  in  its  very  terms,  joint  and  several, 
be  made  with  divers  persons,  but  for  the  payment  of  a  sum  or 
the  accruing  of  some  other  benefit  to  one  of  them  only,  all  must 


(A-)  Lane  r.  Drinkwater,  5  Tyr.  40,  1  C.  (m)   Contra,  Bro.   Abr.   Covenant,  49. 

M.   &  Kos.  399  ;    Bynie   v.  Fitzhugh,  5  A  man  covenanted  witli  twenty,  and  with 

Tyr.  54,  1  C.  M.  &  Kos.  613.  each  of  them,  to  make  certain  sea-banks  ; 

(/)  The  master  of  a  vessel  covenanted,  and  by  liis  not  doin*;  it  the  hmd  of  two 
with  the  several  part  owners  and  their  was  overflowed  to  their  injury.  Jlehl  liy 
several  and  rcspictiue  executors,  adniinis-  the  court,  tliat  tliese  two  could  have  their 
trators,  and  assi<;ns,  to  pay  certain  moneys  action  of  covenant  without  tiie  others, 
to  tliem  and  to  their  several  and  respective  "  Qitnre,"  a<lds  Brooke,  "  for  it  seems  that 
executors,  &c.,  at  a  certain  banker's,' and  each  should  briiijr  an  action  by  himself." 
in  Kuril  jiarts  and  proportions  as  w'ere  set  The  criticism  of  Brooke  is  undoubtedly 
against  their  respective  names.  Upon  well  founded.  It  may  be  questioned, 
this  covenant  an  action  was  brought  by  moreover,  whether  this  case  is  authority 
the  covenantees  jointly.  llild,  on  de-  even  to  give  sucii  a  covenant  the /rf/zV/wrtfe 
murrer  to  the  declaration,  that  the  cove-  attril)utes  of  a  .wjv-ra/ covenant.  The  case 
nant  was  srir/v;/,  because  otherwise  no  eflect  was  cited  in  Siingsby's  case,  (according 
would  he  given  to  the  words  "several  and  to  the  report  of  the  latter  in  2  Leon.  47). 
respective  executors,"  &e.,  and  because  the  There,  A,  B,  antl  C,  luing  ]>arties  respec- 
money  was  to  be  paid  to  the  banker,  not  tively  to  an  indenture  trijjartite,  wherein 
as  an  entire  sum  for  him  to  make  distri-  A  covenanted  with  B  and  C,  et  quolibet 
butions,  but  in  several  |iro]iortii)ns  to  the  conmi,  that  the  land  which  he  had  con- 
separate  account  of  each  part  owner,  thus  veyed  to  \i  was  discharged  of  all  incuiu- 
making  the  interest  of  tiie  covenantees  brances,  B  iirought  a  several  action  of 
several.  Servante  v.  James,  10  B.  &  covenant;  and  the  court  held,  notwithr 
Cress.  410.  See  also  Ford  v.  Bronaugli,  standing  the  ca.sc  from  Brooke,  that  C 
11  B.  Mon.  14.  ought  to  have  been  joined. 

VOL.  I.                                               2  [  13  ] 


14* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


join  in  a  suit  upon  that  contract ;  (n)  because  but  one  thing  is 
to  be  done,  and  all  have  a  legal  interest  in  *the  performance  of 
that  thing,  although  but  one  party  has  a  beneficial  interest. 
So,  if  there  be  in  one  instrument  a  covenant  with  A,  and  an- 
other separate  and  distinct  covenant  with  B,  and  both  are  for 
the  payment  of  a  sum  of  money  to  A,  A  cannot  sue  alone  for 
this  sum,  but  B  must  join,  because  otherwise  the  payer  might 
be  subjected  to  suits  by  both  parties,  (o)  In  general,  all  con- 
tracts, whether  express,  or  implied  and  resulting  from  the  opera- 
tion or  construction  of  law,  are  joint,  where  the  interest  in  them 
of  the  parties  for  whose  benefit  they  are  created,  is  joint,  and 
separate  where  that  interest  is  separate.  But  the  interest 
which  is  thus  important  as  a  criterion,  is  an  interest  in  the  con- 
tract, and  not  in  any  sum  of  money,  or  other  benefit,  to  be 
received  from  it.  It  is  a  strictly  legal  and  technical  interest, 
created  bij  the  contract,  and  does  not  depend  upon  the  condition 
or  state  of  the  parties  aside  from  the  contract,  (p) 

A  covenant  which  is  single  in  its  nature,  or,  which  is  for  one 
and  the  same  cause,  and  so,  in  strict  propriety,  may  be  called 
one  covenant  and  not  a  cluster  of  covenants,  can  never  be  joint 
and  several  in  respect  to  the  covenantees.  In  other  words,  this 
class  of  covenants  does  not  exist  with  respect  to  the  parties 
plaintiff"  in  an  action  for  covenant  broken  ;  it  never  lies  in  the 
option  of  the  covenantees  to  say  whether  they  shall  sue  for  the 
breach,  jointly  or  severally.  They  must  sue  jointly  if  they 
can.  (q)      The  circumstances  of  each  case,  and    the    situation 


(n)  Anderson  V.  Martindale,  1  East,  497. 

(o)  Ibid. 

(;))  Anderson  i\  Martindale,  1  East, 
497  ;  En<,di8h  v.  Blundell,  8  C.  &  Payne, 
332  ;  Lord  Denman,  Hopkinson  v.  Lee,  6 
Q. B.  971,  972. 

(q)  Slingsby's  case,  5  Co.  R.  19  a; 
Spencer  r.  Durant,  Comb.  115  ;  Eccleston 
V.  Clipsham,  1  Saund.  153  ;  Petrie  r.  Bury, 
3  B.  &  Cress.  353  ;  Scott  v.  Godwin,  1  B. 
&  Pul.  67,  71  ;  Gibbs,  C.  J.,  James  v. 
Emery,  5  Price,  533  ;  Foley  v.  Adden- 
brooke,  4  Queen's  Bcncii,  197  ;  Pollock, 
C.  B.,  Parke,  B.,  and  Rolfe,  B.,  Keightley 
V.  Watson,  3  Exch.  721,  723,  726.— Pos- 
sibly, an  exception  to  tliis  rule  is  to  be 
ound  in  the  case  where  the  words  of  tlie 
covenant  ai-e  joint  and  several  as  to  the 
[14] 


covenantees,  while  their  interest  is  several. 
In  such  a  case  the  law,  perhaps,  allows 
the  covenantees,  who,  upon  any  principle 
of  construction,  clearly  nnxy  sue  separately, 
the  liberty  to  sue  jointly.  Sec  Eccleston 
V.  Clipsluim,  1  Wms.  Saund.  153  ; 
Withers  v.  Bircham,  3  B.  &  Cr.  25C  ; 
Slingsby's  case,  5  Co.  R.  19  «;  Rolls  r. 
Yate,  Yelverton,  (Metcalfs  ed.)  177,  note. 

—  On  the  supposition  that  this  exception 
exists,  both  rule  and  exception  might  be 
expressed  by  stating  the  pro])osition  thus  : 

—  It  is  not  possible,  bi/  any  mere  words  of 
joinder  and  severance,  to  give  the  cove- 
nantees the  election  to  sue  separately  or 
together. 

By  what  principles  it  is  to  be  determined 


CH.  il]  of  joint  parties.  15 

and  relation  of  the  parties,  and  the  nature  of  the  consideration, 


whether  a  given  contract  is  joint,  or  joint 
and  several,  or  several,  is  a  matter  in  regard 
to  which  the  authorities  arc  in  a  state  of 
some  confusion.  A  dout>t,  suggested  by 
Mr.  Preston  in  his  edition  of  the;  Touch- 
stone, and  taken  up  iiy  the  C'ourt  of  Ex- 
chequer, has  at  once  siiaken  the  received 
opinion,  and  occasioned  at  least  apparent 
conflict  between  that  court  and  the  Queen's 
Bencli.  It  is  evident  that  a  covenant  may 
be  considered  with  reference  eitlier  to  the 
covenantors  or  covenantees.  If  A,  B,  and 
C  covenant  with  X,  Y,  and  Z,  two  distinct 
questions  arise.  Shall  X,  Y,  and  Z  join,  or 
not,  as  plaintiffs?  Shall  A,  B,  and  C  be 
joined,  or  not,  as  defendants  f  Tiiere 
appears  no  reason  for  doubting  that  the 
tvords  of  joinder  or  severalty  determine  the 
answer  of  the  second  of  these  (juestions. 
The  covenant,  with  respect  to  the  cove- 
nantors, may  belong  to  either  one  of  the 
tiiree  classes  of  joint,  several,  and  joint 
and  several,  just  as  the  parties  liave  chosen 
to  say  in  the  covenant  that  it  shall.  The 
language  of  severalty  or  joinder,  and  not 
the  interest,  is  then  the  test  of  the  (juality 
of  the  covenant  ijuoad  the  cot'enantors. 
Enys  V.  Donnitiiorne,  2  Burr.  1 190.  As  re- 
gards the  joinder  of  the  tovcminlcfs  there  is 
nothing  a  priori  to  prevent  the  existence  of 
the  same  three  classes  to  choose  amongst ; 
namely,  the  class  where  they  must 
sue  jointly,  that  where  tlicy  must  sue  sep- 
arately, and  that  where  it  is  their  ojition  to 
sue  eitlier  jointly  or  severally.  But  the 
jjroposition  stated  above,  if  true,  obviously 
removes  tlie  third  alternative.  The  cove- 
uautci's  either  must  join  or  must  sever. 
Thus  the  inquiry  is  narrowed  to  tliis.  By 
ichat  rntans  is  it  to  be  detennine<l  in  a 
given  case  whether  tliey  nuist  or  nuist  not 
sue  jointly?  And  tiiis  Ili  the  point,  and, 
as  it  would  seem,  the  only  point  upon 
which  there  is  ureal  conflict  of  authorities. 
A  scries  of  eases,  receiveil  without  (juestion 
bv  the  text-writers,  went  upon  the  prin- 
ciple that  the  ititercst  which  the  covenantees 
take  by  the  covenant,  (/nitc  irrcspcrtinc  of 
words  of  scverulti/  or  joinder,  is  in  all  cases 
the  decisive  test.  James  v.  Kniery,  5 
Price,  529,  8  Taunt.  243 ;  Withers  v. 
Bircham,  3  B.  &  Cress.  2.j4  ;  Scrvante  v. 
James,  10  B.  &  Cress.  410;  Lane  v. 
Drinkwater,  5  Tyr.  40,  1  C.  M.  &  Ros. 
599.  But  Mv.  Preston  denied  the  con-ect- 
ness  of  the  rule  as  stated.  "  On  tiie  sub- 
ject of  joint  and  several  covenants,  that 
eminent  lawyer,  Sii'  Mcarij  G'ihbs,  assumed 


that  covenants  must  necessarily  be  joint  or 
several  according  to  the  interest.  The 
language  was,  '  Wherever  the  interest  of 
parties  is  separate,  the  action  may  be  sev- 
eral, notwitiistandiiig  the  terms  of  the 
covenant  on  which  it  is  founde(#may  be 
joint ;  and  where  the  interest  is  joint,  the 
action  must  be  joint,  although  the  covenant 
in  language,  purport  to  be  joint  and  sev- 
eral.' James  v.  Emery  et  al.  5  Price,  533. 
With  great  deference,  however,  the  correct 
rule  is,  that,  by  exjiress  words  clearly  in- 
dicative of  the  intention,  a  covenant  may 
be  joint,  or  joint  and  several,  to  or  with 
the  covenantors  or  covenantees,  notwith- 
standing the  interests  are  several.  Salk. 
393;  2  lioll.  Abr.  419,  [possibly  should 
be  149;  See  G  Queen's  Bench,  971,  note.] 
So  they  may  be  several,  although  the 
interests  are  joint.  But  the  implication  or 
construction  of  law,  when  tlie  words  are 
ainl)iguous,  or  are  left  to  the  interijretation 
of  law,  will  be,  that  the  words  have  an 
im])ort  corres])ondiiig  to  the  interest,  so  as 
to  be  joint  wlien  the  interest  is  joint,  and 
several  when  the  interest  is  several ;  not- 
withstanding language  which,  under  dif- 
ferent circumstances,  would  give  to  the 
covenant  a  different  effect.  Slingsbv's 
ease,  5  Kep.  19  ;  3  CIi.  R.  12G;  5  T.  R. 
522  ;  Southcote  v.  Iloarc,  3  Taunt.  89  ;  1 
Wood,  537  ;  2  Burr.  1 1 90."  Shep.  Touch- 
stone, by  Preston,  IGG.  In  Sorsbie  v. 
Park,  12  M.  &  W.  14G,  Lord  Abim/er 
said :  "  I  tliink  the  rule  is  plain  and  cer- 
tain, and  rcfpiires  no  autiiority  ;  it  is  cor- 
rectly stateil  by  Mr.  I'reston  in  the  pas- 
sage in  Shep.  Touch.  16G,  which  Mr. 
Temple  cited.  Where  the  words  of  a  cove- 
nant are  in  their  nature  ambiguous,  so 
that  they  may  be  construed  either  way, 
then  the  deed  in  wliich  they  are  inserted 
su])plies  the  mode  of  their  construction. 
If  it  exhibit  a  several  interest  in  the  par- 
ties, you  may  construe  it  as  a  several 
covenant,  and  rice  rersa.  But  there  is  no 
'*?lile  to  say  that  words,  which  are  expressly 
a  joint  covenant  by  [to]  several  persons, 
shall  be  construed  as  a  several  covenant, 
unless  there  is  sometlung  to  lead  to  that 
construction."  In  this  view  Parke,  B., 
concurred,  (]).  158).  "  Tiie  rule  is,  that 
a  covenant  will  be  construed  to  be  joint  or 
several  according  to  the  interest  of  the 
parties  appearing  upon  the  face  of  tiic 
deed,  if  the  words  are  capable  of  that  con- 
struction ;  not  that  it  will  be  construed  to 
be  several  by  reason  of  several  interests,  if 

[15] 


16  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

are  all  to  be  looked  into,  to  ascertain  who  is  really  interested, 


it  be  expressly  joint." — In  Foley  v.  Ad- 
denbrooke,  4  Queen's  Bench,  197,  (which 
was  decided  a  little  l)cfore  Sorsliie  v. 
Park,  hut  was  not  refeiTcd  to  in  that  case,) 
the  (loulu  sutr^ested  by  Preston  was  not 
agitatcdT-Mills  v.  Ladbroke,  7  M.  & 
Gran.  218,  [1844]  was  an  action  brought 
by  a  single  plaintiff.  It  was  contended 
that  the  covenant  on  which  the  action  was 
founded,  although  several  in  terms,  ought 
to  be  treated  as  joint  by  reason  of  the 
interest  of  the  covenantees,  who  were  en- 
gaged in  a  partnership  transaction.  Tin- 
dal,  C.  J.,  in  overruling  the  objection, 
thus  adverted  to  the  doctrine  of  the  Court 
of  Exchequer:  "The  covenant,  therefore, 
entered  into  by  the  defendant,  as  repre- 
senting Kingscote,  with  the  shareholders, 
is,  in  point  of  form,  not  a  covenant  with 
all  the  covenantees  jointly,  but  a  several 
covenant  with  each.  And  we  think  this 
is  so  clearly  the  case,  that  if  the  general 
rule  as  laid  down  by  Sir  Vicary  Gihhs,  in 
James  v.  Emery,  is  qualified  according  to 
the  suggestion  of  Mr.  Preston,  in  a  note  to 
Sheppard's  Touchstone,  p.  166,  which  was 
adopted  by  the  Court  of  Exchequer  in  the 
case  of  Sorsbie  v.  Park,  all  reference  to 
the  nature  of  the  plaintiii''s  interest  would 
be  unnecessaiy.  But,  assuming  on  the 
authority  of  the  several  cases  referred  to 
in  the  argument,  that  the  unqualified  rule 
of  law  is,  that  the  action  shall  follow  the 
nature  of  the  interest  of  the  covenantees, 
without  regard  to  the  precise  form  of  the 
covenant,  so  that  the  action  must  be  joint 
where  the  interest  in  the  subject-matter  of 
the  covenant  is  joint,  and  several  where 
the  interest  of  each  covenantee  is  a  several 
interest,  we  think,  upon  reference  to  the 
deed  itself,  the  plaintiff  has  such  several 
interest  in  the  subject-matter  as  will  enable 
him  to  sue  alone  on  this  several  covenant." 
[His  Lordship  then  proceeds  to  examine 
the  language  of  the  deed.]  It  was  not 
long  before  Hopkinson  v.  Lee,  6  Q.  B. 
964,  [1845]  afforded  an  opportunity  for 
the  expression  of  the  opinion  of  the  Court 
of  Queen's  Bench.  Tiiis  was  an  action 
by  a  trustee  upon  articles  of  agreement 
under  seal,  to  which  the  defendant  and  T. 
were  i^arties,  of  the  one  part,  and  the 
plaintiff  and  his  cestui  que  trust,  parties  of 
the  other  part.  The  agreement  recited  a 
loan  by  the  plaintiff  to  E.  of  money  in  the 
hands  of  the  jilaintiflf",  lielonging  to  the 
cestui  que  trust ;  in  consideration  of  which 
defendant  and    T.    covenanted  severally 

[16] 


and  respectively  "  with  and  to  [the  plain- 
tiff"] his  executors,  administrators,  and 
assigns,  and  also  as  a  distinct  covenant 
with  and  to  [the  cestui  que  ti-ust]  her  exec- 
utors, administrators,  and  assigns,"  that 
they,  the  covenantors,  would  pay,  or  cause 
to  be  paid,  interest  at  five  per  cent,  per 
annum  on  the  money  lent  to  E.  It  was 
held  that  the  cestui  que  trust  ought  to  have 
been  joined  as  a  plaintiff.  Lord  Demnan, 
in  the  opinion,  referred  with  approbation 
to  the  rule  that  words  of  severalty  do  not 
prevent  a  covenant  from  being  joint  where 
the  interest  is  joint,  and  said  that  Mr. 
Preston's  exception  was  not  grounded  on 
any  judicial  authority.  Ills  lordship 
added,  (p.  971,)  "We  think  there  is  no 
ground  for  Mr.  Preston's  apprehension 
that  words  perfectly  plain  and  unambigu- 
ous, confining  the  contract  expressly  to 
one  person,  and  excluding  all  others  from 
its  operation,  will  be  strained  by  the  law 
so  as  to  compi-ehcnd  those  whom  it  took 
pains  to  exclude.  The  true  explanation 
of  the  rule  is  rtither  this  :  that  the  whole 
covenant,  taken  together,  binds  to  both 
covenantees,  and  not  to  either  of  them 
alone,  though  separately  named  in  some 
of  its  words,  by  reason  of  the  joint  interest 
in  the  subject-matter,  of  the  action,  ap- 
pearing on  tlie  face  of  the  deed  itself. 
Such  being  the  state  of  the  authorities,  a 
special  case  was  reserved  from  the  assizes 
for  the  Court  of  Exchequer,  where  certain 
persons,  with  whom  a  covenant  had  been 
made,  sued  the  covenantors  upon  it.  The 
deed,  being  fully  set  out,  was  found  to 
make  a  covenant  with  the  pjaintifts,  for 
tliemselves  and  others ;  and  in  Michaelmas 
Term,  184.3,  the  court  held,  in  strict  con- 
formity with  all  the  cases,  that  a  nonsuit 
ought  to  be  entered,  because  those  others 
had  not  been  joined  as  plaintiff's  in  bring- 
ing the  action,  though  the  covenant  de- 
clared on  was,  in  its  terms,  made  with 
them  alone.  But  the  plaintiff  here  places 
his  whole  reliance  on  some  dicta  which 
fell  from  the  late  Chief  Baron  and  from 
Parlye,  B.,  applicable,  not  to  that  case, 
but  only  to  tlie  converse  of  it,  which  were 
represented  as  at  variance  with  the  old 
law.  Unluckily,  no  reference  was  made 
to  Anderson  v.  Martindale,  as  tlie  court, 
justly  thinking  the  general  rule  too  clear 
for  argument,  stopped  the  learned  counsel 
wlio  su]iported  it.  Lord  Aliiiu/cr  thought 
tlie  rule  ])lain  and  certain,  and  that  it  re- 
quired no  authority :  '  it  is  correctly  stated 


CH.   II.] 


OF   JOINT   PARTIES. 


17 


and  who  has  sustained  the  damage  arising  from  a  breach   of 


by  Mr.  Preston  : '  he  then  cites  the  nxle 
with  the  exception.  Parle,  B.,  also 
thinks  tlie  correct  rule  is  hud  down  hy 
Gibbs,  C.  J.,  in  James  v.  Emery,  (5  Price, 
533,)  with  the  qualification  stated  by  Mr. 
Preston.  These  learned  judges  could  not 
intend  to  overrule  Anderson  v.  Martindale, 
(1  East,  497,)  which  was  not  broufrht 
before  them ;  nor,  if  they  did,  could  we 
aj^rec  to  be  bound  by  their  extrajudicially 
declariufr  such  an  intention  where  their 
decision  itself  pursued  tlie  doctrine  of  that 
case." — In  Bradiiurne  v.  Bottield,  14  M. 
&  W.  .'3.59,  572,  [1845]  the  matter  was  thus 
left  by  Baron  Parke:  —  "  There  is  no  oc- 
casion to  refer  to  the  cases  relating  to  the 
rule  of  construction,  as  to  covenants  being 
joint  or  several,  according  to  the  interest 
of  the  parties,  which  is  peifectly  well 
established.  In  the  case  of  Sorsbic  v. 
Park,  (12  M.  &  W.  146,)  IuOyA  Ahinrjer 
and  myself,  on  referring  to  the  established 
rule,  as  laid  down  by  Lord  Ciiief  ^ns'tice 
Gihbs,  in  the  case  of  James  i\  Emery,  (2 
Moore,  195,)  approved  of  Mr.  Preston's 
((ualification  and  exjilanation  of  it  in  his 
edition  of  the  Touchstone,  166,  namely, 
that,  if  the  language  of  the  covenant  mis 
cajiaUe  of  hehuj  so  construed,  it  was  to  be 
taken  to  be  joint  or  several,  according  to 
the  interest  of  the  parlies  to  it.  Mr. 
Preston  adds,  that  the  general  rule  pro- 
posed by  Sir  Viniri/  G/Ww,  and  to  be  found 
in  several  hooks,  would  cstalilish  that  there 
was  a  rule  of  law  too  powerfid  to  be  con- 
trolled b^  am/  intrnlioii,  Iioirerer  express, 
and  I  consider  such  qualification  to  be 
j)crfectly  correct,  and  at  variance  with  no 
decided  case,  as  it  is  surely  as  competent 
for  a  person,  by  cxjjress  joint  words, 
strong  enough  to  make  a  joint  covenant, 
to  do  one  thing  for  tlu'  benefit  of  one  of 
the  covenantees,  and  anotlier  for  the  benefit 
of  another,  as  it  is  to  make  a  joint  demise 
■  where  it  is  for  the  benefit  of  one.  I  men- 
tion this,  because  the  Court  of  Queen's 
Bench,  in  the  case  of  Ilopkinson  v.  Lee, 
(14  Law  J.  (\.  s.)  Q.  B.  104,)  have  sup- 
jiosed  that  I/ord  Aliini/ir  and  myself  had 
sanetioneil  some  doctrine  at  variance  witii 
the  ease  of  Anderson  v.  Martindale,  and 
Slingsby's  case,  which  it  was  far  from  my 
intention,  and  I  have  no  doubt  from  Lord 
Abiio/er's,  to  ilo ;  it  being  fully  estab- 
lished, I  conceive,  by  those  cases,  that  one 
and  tiie  same  covenant  cannot  be  made 
both  joint  and  several  with  the  coven.'iiiiees. 
It  may  be  fit  to  observe,  that  a  part  of 

*2 


IMr.  Preston's  explanation,  that  by  express 
words  a  covenant  may  be  joint  a?/f/ several 
witli  the  covenantors  or  covenantees,  not- 
withstanding the  interests  are  several,  is 
inaccurately  expressed  ;  it  is  true  only  of 
covenantors,  and  the  case  cited  from  Sal- 
keld,  p.  393,  relates  to  them  ;  probably 
Mr.  Preston  intended  no  more,  and  I  never 
meant  to  assent  to  the  doctrine  that  the 
same  covenant  might  be  made,  by  any 
words,  however  strong,  joint  and  several, 
where  the  interest  was  joint ;  and  it  is  this 
part,  I  apprehend,  of  Mr.  Preston's  doc- 
trine, to  which  the  Court  of  Queen's 
Bench  objects.  I  think  it  right  to  give 
this  explanation,  that  it  may  not  be  sup- 
posed that  there  is  any  difference  on  this 
jjoint  with  the  Court  of  Queen's  Bench." 
— Afterwards  [1849]  came  the  case  of 
Keightley  r.  Watson,  3  Exchequer,  716. 
That  was  an  action  of  covenant  by  one 
plaintiff  on  a  deed  executed  byoncDobbs 
of  the  first  part,  the  jilaintiff  of  the 
second  i)art,  and  the  defendants  of  the 
third  part.  The  deed,  after  reciting  that 
Dobbs  had  agreed  to  ])urchase  certain 
land  of  tlie  plaintiff,  wliich  same  land 
Dobbs  had  agreed  to  sell  to  the  de- 
fendants, stated  that  it  was  thereby  cove- 
nanted by  each  party  thereto,  that 
Dobbs  should  sell,  and  the  defendants 
should  purchase,  the  said  land,  at  7,335/., 
900/.  to  be  ]iaid  niion  the  execution  of 
the  deed,  and  6,435/.  on  the  27th  Novem- 
ber, 1851.  The  deed  then  contained  the 
following  covenant :  "  And  the  defend- 
ants for  themselves,  their  heirs,  &C,,  here- 
by covenant,  with  the  said  plaintiff,  his 
executors,  &c.,  and,  as  a  separate  cove- 
nant, with  the  said  Dobbs,  his  execu- 
tors, iS:c.,  that  they,  the  said  defendants, 
and  their  heirs,  &c.,  shall,  on  perfoiTii- 
ance  of  the  covenant  and  agreement, 
hereinbefore  contained,  on  the  ])art  of 
the  said  Dobbs,  pay  to  the  said  jdain- 
tiff,  his  executoi-s,  &e.,  or  to  the  said 
Dobbs,  his  exccutoi"s,  &c.,  in  ease  the 
said  ]daintiffs,  his  exectitoi-s,  &c.,  shall 
then  have  been  paid  his  or  their  jiurcliase- 
money,  jiayalde,  iJic,  the  sum  of  6,435/., 
being  the  remainder  of  the  said  ]>urchase- 
money,  on  or  before  the  27tli  November, 
1851."  And  fin-tlier,  that  the  said  defend- 
ants, their  heirs,  &c.,  shall  in  the  mean 
time,  and  until  the  whole  of  the  said  sum 
of  6,435/.  shall  be  jiaid  off,  pay  to  the 
said  plaintiff,  his  executors,  &c.,  interest 
on  so   much   of  the  jiurchase-mouey   as 

[17] 


18 


THE   LAW    OF   CONTRACTS. 


[book  I. 


the    contract,  and   whether    such    damage    was   joint    or    sev- 
eral. (>•) 


shall  from  time  to  time  remain  unpaid,  at 
the  rate  of  5l.  per  cent,  per  annum,  from 
the  date  of  these  presents."  &c.  Held, 
that  plaintiff  might  properly  sue  alone  for 
interest  on  the  unpaid  portion  of  the  pur- 
chase-money, the  covenant  being  several. 
Pollock,  C.  13.,  said :  "  I  am  of  opinion 
that  in  tliis  case  the  plaintiff  is  entitled  to 
the  judgment  of  the  Court.  I  consider 
that  the  incjuiry  really  is  as  to  the  true 
meaning  of  the  covenant,  at  the  same 
time  bearing  in  mind  the  rule  —  a  rule 
which  I  am  by  no  means  willing  to  break 
in  upon — that  the  same  covenant  cannot 
be  treated  as  joint  or  several  at  the  op- 
tion of  the  covenantee.  If  a  covenant  be 
so  constructed  as  to  be  ambiguous,  that 
is,  so  as  to  serve  either  the  one  view  or  the 
other,  then  it  will  be  joint,  if  the  interest 
be  joint,  and  it  will  be  several,  if  the  in- 
terest be  several.  On  the  other  hand,  if 
it  be  in  its  terms  tinmistakabli/  }omt,  then, 
although  the  interest  be  several,  all  the 
parties  must  be  joined  in  the  action.  So, 
if  the  covenant  be  made  clearly  several, 
the  action  must  be  several,  although  the 
interest  be  joint.  It  is  a  question  of  con- 
struction. "Wliat  then,  in  this  case,  did 
the  parties  mean  ?  The  words  of  the 
covenant  are,  'And  the  said  11.  Watson, 
H.  Watson,  and  J.  Smith,  for  themselves, 
their  heirs,  executors,  and  administrators, 
hereby  covenant  with  the  said  W.  T. 
Keightley,  his  executors,  administrators, 
and  assigns,  and  as  a  separate  covenant 
with  the  said  A.  A.  Dobbs,  his  executors, 
administrators,  and  assigns,  that  they ' 
will  do  so  and  so.  If  I  am  to  put  a  con- 
struction upon  that,  I  should  say  that  it  is 
intended  to  be  a  several  or  separate  cove- 


nant. In  the  case  of  Hopkinson  v.  Lee, 
it  seems  to  have  been  understood  at  one 
time  by  this  Court,  that  there  were  joint 
words.  There  are  certainly  none.  But 
the  nature  of  the  interest,  upon  looking 
into  that  particular  case,  may  possibly 
justify  that  decision.  The  words  of  this 
instrument  are  several,  and  its  terms  dis 
close  a  several  interest ;  the  covenant, 
therefore,  must  be  construed  according  to 
the  words,  as  a  several  covenant ;  and  it 
appears  to  me  that  the  words  used  by  the 
parties  were  intended  to  create  such  a 
covenant.  I  think,  therefore,  that  the 
plaintiff  is  entitled  to  sue  alone."  Parke, 
B.,  in  the  course  of  an  opinion  of  consid- 
erable length,  said :  "  The  rule  that  cove- 
nants are  to  be  construed  according  to 
the  interests  of  the  parties,  is  a  rule  of 
construction  merely,  and  it  cannot  be 
supposed  that  such  a  rule  was  ever  laid 
down*as  could  prevent  parties,  whatever 
words  they  might  use,  from  covenanting 
in  a  different  manner.  It  is  impossible 
to  say  that  parties  may  not,  if  they  please, 
use  joint  words,  so  as  to  express  a  joint 
covenant,  and  thereby  to  exclude  a  sev- 
eral covenant,  and  that,  because  a  cove- 
nant may  relate  to  several  interests,  it  is 
therefore  necessarily  not  to  be  construed 
as  a  joint  covenant.  If  there  be  words 
capable  of  two  constructions,  we  must  look 
to  the  interest  of  the  parties  which  they 
intended  to  protect,  and  construe  the 
words  according  to  that  interest.  I  ap- 
prehend that  no  case  can  be  found  at  va- 
riance with  that  rule,  unless  Hopkinson 
V.  Lee  may  be  thought  to  have  a  contrary 
aspect.  During  the  course  of  the  argu- 
ment   in   Bradburne   v.   Botfield,  I   cer- 


(;•)  In  Windbam's  case,  5  Co.  R.  7,  it 
is  stated  that  joint  words  in  a  grant  are 
sometimes  taken  severally.  1.  In  respect 
of  tlie  several  interests  of  the  grantors ; 
as  if  two  tenants  in  common,  or  several 
tenants,  join  in  a  grant  of  a  rent-charge, 
vet  in  law  this  grant  shall  be  several,  al- 
though the  words  are  joint.  2.  In  respect 
of  the  several  interests  of  the  grantees, 
&c.  19  H.  6,  63,  G4.  A  warranty  made 
to  two  of  certain  lands  shall  enure  as 
several  warranties,  in  respect  that  they 
are  severally  seized,  the  one  of  part  of  the 
lands,  and  the  otlier  of  the  residue  in  sev- 

[18] 


cralty.  6  E.  2  ;  Covenant,  Br.  49.  [But 
this  case  does  not  seem  to  be  law.  See 
note  {m)  supra.]  A  joint  covenant  taken 
severally  in  respect  of  the  several  interests 
of  the  covenantees.  Vide  16  Eliz.  Dyer, 
337,  338,  [infra  note  (c)]  between  Sir 
Anthony  Cook  and  Watton,  a  good  case. 
3.  In  respect  that  the  grant  cannot  take 
effect  but  at  several  times.  4.  In  respect 
of  the  incapacity  and  impossibility  of  the 
grantees  to  take  jointly.  5.  In  respect  of 
the  cause  of  the  grant,  or  raiione  subjectce 
mater  ice.  6.  Ne  res  deslruatur  et  ut  evitetur 
absurdum. 


CH.   II.] 


OF   JOI>'T   PARTIES. 


19-*20 


The  nature,  and  especially  the  entireness,  (.s)  of  the  consider- 
ation is  of  great  importance  in  determining  whether  the  promise 
be  joint  or  several ;  for  if  it  moves  from  many  persons  jointly, 
the  promise  of  repayment  is  joint;  (l)  but  if  'from  many  persons. 


tainh'  was  under  the  impression,  from 
reading  the  ease  of  Ilopkinson  v.  Lee, 
that  tliere  were  in  that  case  words  capa- 
ble of  such  a  construction  as  to  make  the 
covenant  a  joint  covenant.  If  that  liad 
been  so,  tiien  the  words  subsequently  in- 
troduced would  not  have  made  it  several, 
unless  there  had  also  been  an  interest  in 
respect  of  which  it  could  be  several,  ac- 
cordini;  to  the  rule  referred  to  by  the 
Lord  Chief  Baron,  as  laid  down  in  Slin<^s- 
by's  case,  that  it  is  not  competent  to  tiie 
court  to  hold  the  same  covenant  joint  or 
several  at  the  option  of  tiie  covenantee." 
Rol/e,  B.,  gave  the  following  opinion, 
which  is  cited  at  length  as  containing 
■within  a  small  compass  a  clear  and  able 
review  of  the  whole  subject :  "  I  am  of 
the  same  opinion.  It  seems  to  me  that 
the  question  turns  entirely  upon  the  luile, 
as  stated  by  my  Brother  Parke,  which 
was  distinctly  laid  down  by  this  court  in 
the  cases  cited,  and  in  which  I  fully  con- 
cur. It  appears  to  me  tliat  Mr.  Pres- 
ton's suggestion  wivs  perfectly  well  found- 
ed, that  the  rule  in  Slingsby's  ca.se  was 
not  a  rule  of  law,  but  a  mere  rule  of  con- 
struction. From  that  case  it  appears, 
that,  if  a  covenant  be  cum  r/iioliUt  tt  i/iuili- 
bet  eontm,  that  may  be  either  a  joint  or 
several  covenant,  and  it  will  depend  upon 
the  context  whether  it  is  to  be  taken  as  a 
joint  or  several;  but  it  cannot  be  both. 
The  rule  given  in  Slingsby's  case  is  not 
veiy  satisfactory  to  my  mind ;  namely, 
with  regard  to  the  difficulty  which  arises 
as  to  the  proper  person  to  recover  dam- 
ages. If  a  i)arty  choose  to  enter  into  a 
covenant  which  creates  such  a  difficulty,  I 
do  not  see  what  the  court  has  to  do  with 
it.  It  is  clear  that  jiartics  can  so  contract 
by  separate  deeds  ;  why,  tlien,  should 
they  not  be  able  equally  to  do  so  by  sei)a- 
rate  covenants  in  the  same  deed  1  If  they 
80  word  one  covenant  as  to  make  it  a 
joint  and  .separate  covenant,  had  it  not 
been  othensise  decided,  I  confess  I  should 
have  seen  nothing  extraordinary  in  hold- 
ing that  if  they  choose  so  to  coiuract  as 
to  impose  upon  themselves  that  burden, 
and  state  it  to  l)e  botli  joint  and  several, 
the  court  ought  so  to  construe  it.     But 


Slingsby's  case  has  laid  down  the  oppo- 
site rule.  I  take  it,  that  from  that  time, 
the  rule  has  always  been  —  whether  dis- 
tinctly expressed  or  not,  it  is  not  neces- 
sary to  consider  —  but  tiie  rule  has  been 
that  you  are  to  look  and  see  from  the  con- 
text what  the  ])arties  meant.  Applying 
that  rule  here,  I  see  no  doubt  about  the 
(jucstion.  They  have  said,  in  terms,  that 
it  is  to  be  a  separate  covenant.  Accord- 
ing to  the  other  construction,  if  Dobbs  had 
satisfied  Keightley,  and  Dottbs  had  died, 
Keightley  might  have  to  sue  for  the  money 
coming  to  Dobbs,  and  vice  versa ;  or, 
snp])ose  Dobbs  had  not  satisfied  Keightley, 
and  Keightley  had  died,  Dobbs  would 
have  had  to  sue  for  the  money  coming 
to  Keightley's  representatives.  Tlie  par- 
ties have  expressed  themselves  in  words 
showing  it  was  to  be  a  separate  covenant 
with  each,  and  I  tliink  we  should  so  hold 
it ;  consequently  the  plaintiff  is  entitled  to 
our  judgment."  Piatt,  B.,  concurred  in 
the  judgment.  — From  the  whole  we  may 
gather  that  the  Court  of  Exchequer  main- 
tain the  general  jirinciplc  that  it  is  com- 
petent to  the  parties  to  nuike  the  contract, 
by  express  words,  what  they  please,  as 
well  with  respect  to  the  joinder  of  parties 
as  with  respect  to  any  other  legal  ((uality 
of  the  contract.  The  rule,  carried  to  its 
extent,  would  permit  the  making  of  a 
covenant  yo/»^,  or  several,  or  joint  and  sev- 
eral, as  to  the  covenantors ;  and  Joint,  or 
several,  or  joint  ami  stvcral,  as  to  the  cov- 
enantees. But  the  Court  of  Exchequer 
add  that  the  rule  is  to  be  taken  with  this 
quallHcation,  namely,  that  one  of  the  si.x 
cases  above  enumerated  is  excluded  by 
the<loctrine  (settled,  perhaps,  on  authority 
rather  tiian  ]irinci])le,)  that  no  covenant 
can  be  joint  and  st n  rid  as  to  the  corcnan- 
ie(s.  Ofcoiu-sc  it  is  not  to  be  doultted 
that  in  this  respect  all  contracts,  whether 
under  seal  or  not,  arc  governed  by  the 
same  principles. 

(s)  Chanter  v.  Lccsc,  5  M.  &  W.  698, 
701  ;  1  Roll.  Abr.  31,  pi.  9. 

{t)  Ivans  V.  Draper,  1  IJoll.  Abr.  31, 
pi.  9  ;  Winterstoke  Hundred's  case,  Dyer, 
370,  a.  But  see  Jones  v.  Robinson,  1 
Exch.  454,  [infra,]  note  (r). 

[I'J] 


20- _  THE   LAW   OF    CONTRACTS.  [BOOK  I. 

but  from  each  severally,  there  it  is  several,  (ti)  Where  the  pay- 
ment is  in  the  first  place  of  one  sum  in  solido,  and  this  is  after- 
wards to  be  divided  among  the  payees,  there,  generally,  the 
interest  of  the  payees  is  joint ;  (v)  but  where  the  first  payment 
is  in  several  sums  among  the  several  payees,  there,  generally, 
their  interest  is  several,  (w)  So  if  a  sum  in  solido  is  advanced 
to  one  by  many  persons,  the  promise  of  repayment  is  a  promise 
to  all  jointly  ;  (.?;)  but  if  several  sums  are  advanced  separately 
by  each,  there  the  promise  is  to  each  severally,  (y)  And  if  the 
several  persons  raise  the  sum  by  separate  and  distinct  contribu- 
tion;  but,  when  raised,  it  is  put  together  and  advanced  as  one 
sum,  there  the  promise  of  repayment  is  to  all  jointly,  (c)  Both 
a  joint  obligation  or  right,  and  a  several  obligation  or  right,  may 
coexist ;  for  there  may  arise  from  the  same  contract,  one  joint 
duty  to  all,  and  also  several  duties  to  each  of  the  parties,  (a) 

In  analogy  with  the  rule  in  the  case  of  contracts,  it  is  well 
established,  that  there  can  be  no  joint  action  for  an  injury,  unless 
that  injury  be  a  joint  injury  to  the  plaintiffs.  Therefore  husband 
and  wife  cannot  sue  jointly  for  assault  and  battery  of  them,  or 
for  slander  of  them.  (6) 

Whatever  rule  be  adopted  as  the  leading  principle  of  con- 
struction, the  question  whether  the  right  created  by  a  contract 
is  joint  or  several,  must  be  left  in  any  particular  instance  so 
much  to  mere  authority,  that  we  close  the  subject  with  a  refer- 
ence to  the  decisions  collected  in  the  note,  (c) 


(u)  Bell  V.  Chaplain,  Hardres,  321.  March  T.,  1853,  Suffolk  Co.  Mass.  (not 

(I'j  Lane  r.  Drinkwater,  5  Tyr.   40;  yet  reported). 

Byrne  v.  Fitzhugh,  id.  54.  (c)  It  is  attempted  in  this  note  to  collect 

(w)  Thomas  and ,  Styles,  461.  at  least  the  more  important  cases  in  which 

{x)  May  V.  May,  1    C.  &  Payne,  44.  the  question  of  the  propriety  of  the  joinder 

Money  advanced  on  the  joint  credit  of  two  of  plaintiffs  has  been  passed  upon.    These 

parties  may  be  recovered   by  them  in  a  cases  fall,  it  is  evident,  within  one  of  four 

joint  action  against  the  pei-son  for  whose  classes  :  —  Wliere  a  joint  action  was  held 

benefit  it  was  paid.     Osborne  v.  Harper,  5  properly  brought ;  where  it  was  held  that 

East,  225.  a  several  action  should  have  been  joint ; 

(y)  Brand   v.   Boulcott,   3  B.   &   Pul.  where  a  several  action  was  held  properly 

235.  brought ;  wliere  it  was  held  that  a  joint 

(z)  May  V.  May,  1  C.  &  Payne,  44.  action  should  have  been  several :  — 

(a)   Story  v.  Richardson,  6  liing.  N.  C.  1.    Where  a  joint  action  ivas  held  properli/ 

123;  Pcckham  r.  North  Parish  in  Haver-  broutjht. 

hill,  16  Pick.  274.  Wakefield  &  Bingley  r.  Brown,  9 

{b)  9  Ed. 4, 51;  Color.  Turner,  6 Mod.  Q.  B.    209.     Covenant.     Bingley,  being 

149;  Gaziuskv  e«  !/x.  v.  Colburn,  decided  owner  of  a  term  of  sixty-one  vears,  granted 

[20] 


i 


CH.  II.] 


OF   JOINT   PARTIES. 


21 


SECTION    II. 


OF   SOME  INCIDENTS    OF  JOINDER. 


Parties  are  not  said  to  be  joint  in  law,  merely  because  they 
are    coni^ected   together  in  some  obligation   or   some  interest 


an  annuity  to  Samuel  W.,  and  for  secur- 
ing; ])ayinent,  assigned  the  term  (wantini^ 
one  day)  to  Kobert  W.  By  indenture, 
reciting  these  facts,  Kohert  W.,  at  the  re- 
quest of  Samuel  W.  and  of  Binglcy,  de- 
mised, and  Bingley  demised  and  confirmed 
the  premises  to  Sophia  B.,  at  a  rent  pay- 
able to  Samuel  W.,  while  tiie  premises 
remained  subject  to  the  animity,  and  after- 
wards to  Binglcy.  Sojihia  B.  covenanted 
to  and  with  Samuel  W.  and  Robert  W., 
and  their  respective  executors,  &c.,  and 
also  with  and  to  Bingley,  his  executors, 
&c.,  to  pay  the  rent,  while  the  premises 
were  subject  to  tlie  annuity,  to  Kobcrt 
[sic]  AV.,  and  afterwards  to  Bingley,  and 
also  to  make  certnin  repairs.  Tlie  action 
was  upon  the  covenant  to  repair.  Jlcld, 
on  denun-rer,  that  Samuel  W.  being  dead, 
Kobert  W.  and  Bingley  could  sue  jointly. 
—  Rose  v.  Pollton,  2  B.  &  Ad.  822. 
Covenant.  Demurrer.  The  covenant 
declared  upon  was,  in  terms,  with  the 
plain  tilts  and  G.,  jointli/  and  serenilli/. 
G.  was  also  one  of  the  covenantors,  Imt 
was  dead  at  the  time  of  the  bringing  of  the 
action.  The  court  held,  that  whether  or 
not  one  of  the  covenantees  could,  if  lie  had 
chosen,  have  sued  separately,  the  action, 
as  brought,  was  well  niaintainablc.  — 
Pe.vsk  i\  Hirst,  10  B.  &  Cress.  122. 
A,  wisliing  to  obtain  credit  with  liis  I)ank- 
crs,  in  1817  prevailed  upon  three  persons 
to  join  inni  in  a  jjromissory  note,  whereby 
they  Jointly  and  severally  promised  to  ])ay 
the  bankers  or  order  300/.  V\n>n  two  of 
the  partners  retiring  from  the  banking- 
house,  a  l)alance  was  struck  between  tiic 
old  and  new  firm,  and  the  ]iromissoiy  note 
was  delivered  to  the  new  firm,  but  not  in- 
dorsed to  tliem.  Jfclil,  tliat  the  action 
was  well  brouglit  in  the  name  of  tlie  sur- 
viving members  of  the  old  firm.  I\it(Iiin 
I'.  BrcKLEY,  T.  Kaym.  80;  1  Lev.  lo'j, 
S.  C.  1  Sid.  157,  uom.  Kitchin  v. 
Compton.  Covenant  for  rejtairs  against 
lessee   for  years.     One  Randal   demised 


the  tenement  to  the  defendant,  and  after- 
wards granted  a  moiety  of  the  reversion  to 
Kitchin,  and  afterwards  tlie  other  moiety 
to  Knight.  Kitchin  and  Knight  brought 
this  action  jointly.  After  verdict  for  the 
plaintiffs,  it  was  moved  in  arrest  of  judg- 
ment, that  the  plaintiffs,  being  tenants  in 
common,  ought  not  to  join.  But  the 
court  held  that  the  action  was  properly 
iirought,  and  said  :  "  This  is  a  personal 
action  mendy,  in  which  tenants  in  com- 
mon jnay  join."  —  Vaux  v.  Draper, 
Styles,  156,  203  ;  1  Rolle,  Abr.  31,  pi.  9. 
Assumpsit.  The  several  cattle  of  the  two 
plaintitls  having  been  distrained,  defend- 
ant, in  consideration,  of  10/.  jiaid  to  him 
by  the  plaintiffs,  promised  to  jirocure  the 
cattle  to  be  redelivered  to  them.  Held, 
on  motion  in  arrest  of  judgment,  that  the 
joint  action  was  good.  7>V/c,  C.  J.,  said  : 
"  Tlie  consideration  given  is  entire,  and 
cannot  be  divided,  and  there  is  no  incon- 
venience in  joining  the  action  in  this  case ; 
but  if  one  had  brought  tlie  action  alone,  it 
might  have  been  iiuestionai)le."  .hrman, 
J.,  dissented,  and  thought  se.vcral  promises 
should  be  intended. 

AiiKi-iain  Ccises.  —  S.mith  i-.  Tallcott, 
21  Wend.  202.  In  an  agreement  under 
seal  for  the  sale  of  lands,  husliand,  wife, 
and  trustee  of  tlie  wife,  were  parties  of  the 
first  part.  The  trustee  did  not  execute 
the  deed  — thougii,  l)y  an  indorsement  on 
tlie  l)ack  (under  .seal)  he  bound  himself  to 
do  what  should  i)e  necessary  on  his  jtart 
to  carry  the  contract  into  ctlett.  J/<ltl, 
that  an  action  against  tiie  parties  of  the 
second  ])art  was  ]iroperiy  brought  in  the 
joint  names  of  husband,  wife,  and  trustee. 
—  Pearson"  v.  Parker,  3  N.  II.  366. 
Plaintiffs,  being  sureties  for  defendant, 
ilischarged  the  delit,  in  part,  witJi  money 
raised  upon  the  joint  note  of  the  plaintiffs, 
and  in  jiart  with  their  joint  note  given 
directly  for  the  residue.  //</(/,  that  their 
action  against  the  principal  deiitor  was 
well  brought  jointly. — Wright  c.  Post, 

[21] 


22 


THE   LAW    OF   CONTRACTS. 


[book  I. 


which  is  common  to  them  both.     They  must  be  so  connected 
as  to  be  in  a  manner  identified.     They  have  not  several  and 


3  Conn.  142.  Twenty  pci-son.s,  tlesirous 
to  support  a  public  ris^ht  of  fisliciy,  entered 
into  an  agreement  to  defend  such  right 
tlu'ough  a  trial  at  law,  each  promising  to 
[)ay  his  proportion  of  the  expense  to  such 
of  them  as  should  he  sued  for  occupying 
the  fishery.  Three  of  them  were  sued 
jointly,  and,  after  an  unsuccessful  defence, 
each  jiaid  from  his  ]n-ivate  funds  (jue  third 
part  of  the  execution.  Hdd,  that  these 
three  could  maintain  a  joint  action  against 
a  fourth,  to  recover  his  twentieth  part  of 
the  expense  incurred;  the  joint  liahility 
of  the  plaintiffs,  coupled  with  defendant's 
promise,  and  not  the  payment  of  the 
money,  being  tlie  cause  of  action. — 
Haugiiton  v.  Batley,  9  Iredell,  337. 
The  two  j)laintiffs,  each  out  of  his  own 
stock,  delivered  goods  to  defendant,  to  be 
peddled,  and  took  a  bond,  payable  to  them- 
selves jointly,  for  the  faithful  accounting 
therefor.  lield,  that  they  could  maintain 
a  joint  action  upon  the  bond,  notwithstand- 
ing their  several  interests.  See  also,  Doe 
d.  Campbell  e<  a/,  v.  Hamilton,  13  Q.  B. 
977  ;  Beer  v.  Beer,  9  E.  L.  &  E.  468  ; 
Magnay  v.  Edwards,  20  id.  264  ;  Arden  v. 
Tucker,  4  B.  &  Ad.  815  ;  Powis  v.  Smith, 
5  B.  &  Aid.  850 ;  Wallace  v.  McLaren, 
1  M.  &  Ry.  516  ;  Townsend  v.  Neale,  2 
Camp.  190;  Osborne  v.  Harper,  5  East, 
225  ;  Midgley  v.  Lovelace,  Carth.  289  ; 
Yate  V.  Eoules,  1  Bulst.  25  ;  Clement  v. 
Henley,  2  Koll.  Abr.  22,  (F,)  pi.  2; 
Parker  v.  Gregg,  3  Foster,  416  ;  Saunders 
V.  Johnson,  Skinner,  401. 

2.  In  the  following  cases  it  icas  held  that 
a  several  action  should  have  been  joint. 

Luces  V.  Beale,  20  Law  Jour.  (n.  s.) 
C.  P.  134,  4  E.  L.  &  E.  358.  Assump- 
sit. The  plaintiff,  actiug  on  behalf  of 
the  members  of  an  orchestra,  to  which  he 
himself  belonged,  signed  a  proposal,  "  on 
behalf  of  the  members  of  the  orchestra," 
to  continue  their  services,  provided  the 
defendant  would  guarantee  certain  salary 
tlien  due  to  them.  The  defendant  ac- 
cepted this  proposition,  but  failed  to  pay 
the  salary  due.  Tlie  plaintiff  alone 
brought  an  action  for  the  whole  money 
due  to  himself  and  the  rest,  and  stated 
the  contract  to  be  with  himself  and  the 
rest.  The  jury  found  that  he  acted  on 
behalf  of  himself  as  well  as  the  rest.  Held, 
that  the  contract  was  joint,  and  that  he 
could  not  recover. — Lockhart  v.  Bar- 
NAEX),  14  M.  &.  W.  674.     Assumpsit.     A 

■    [22] 


handbill,  relating  to  a  stolen  parcel,  offer- 
ed a  reward  to  "  whoever  should  give 
such  infonnation  as  should  lead  to  the 
early  apprehension  of  the  guilty  parties." 
The  information  was  communicated  first 
by  plaintiff  to  C.  in  conversation,  after- 
wards to  a  constable  by  plaintitF  and  C. 
jointly.  Held,  that  C.  ouglit  to  have 
ioined  in  the  action  for  the  reward. — 
"Hopkinson  v.  Lee,  6  Q.  B.  964.  [For 
an  abstract  of  this  case,  and  for  the 
comments  made  upon  it  by  the  Court 
of  Exchequer,  see  note  {r/)  supi-a.]  — 
Byrne  i-.  Fitzhdgh,5  Tyr.  54, 1  Crompt. 
Mees.  &  Ros.  613.  Before  Patteson,  J., 
and  Gurnei/,  B.  The  agreement  of  de- 
fendants was  that,  in  consideration  of 
plaintiff  and  B.  using  their  endeavors  to 
charter  ships  and  procure  passengers  on 
board  of  them,  and  not  engaging  with  any 
other  emigrant  broker,  they,  tlie  defend- 
ants, undertook  to  pay  plaintiff  and  B.  a 
commission  of  5l.  per  cent,  on  the  amount 
of  the  net  passage-money  made  by  the 
ships,  one  half  to  be  paid  to  plaintiff',  and 
the  other  half  to  B. ;  Lane  v.  Drink- 
water  being  cited,  held,  that  plaintiff,  su- 
ing without  B,  should  be  nonsuited.  — 
Hatsall  v.  Griffith,  4  Tyr.  487.  A 
broker  was  employed  to  sell  a  ship  be- 
longing to  three  part-owners,  two  of  whom 
communicated  with  him.  To  them  he 
paid  their  shares  of  the  proceeds  of  the 
sale;  but,  after  admitting  the  third  part- 
owner's  share  to  l)e  in  his  hands,  refused 
to  pay  it  to  him  without  the  consent  of 
the  other  two.  An  action  of  assumpsit 
having  been  brought  by  the  third  part- 
owner  for  the  share,  held,  that  he  was  not 
entitled  to  recover.  —  Petrie  v.  Bory, 
3  B.  &  Cress.  353.  Covenant ;  demurrer. 
The  covenant  declared  upon  was  with 
the  plaintiff  and  two  others,  for  the  use 
of  a  third  party.  The  declaration  averred 
that  the  two  other  covenantees  had  never 
sealed  the  deed.  Held,  notwithstanding, 
that  as  all  might  sue,  all  must  sue,  and 
that  the  declaration  was  bad.  —  South- 
cote  V.  Hoare,  3  Taunt.  87.  Cove- 
nant upon  an  indenture  of  three  parts. 
Held,  on  demurrer,  that  a  covenant  with 
A  and  B,  and  with  every  of  them,  is 
joint,  though  A  is  party  of  the  first  part, 
and  B  party  of  thi!  second  part,  to  the 
deed.  —  Guidon  v.  Rouson,  2  Camp.  302. 
Action  by  the  drawer  and  payee  of  a  bill 
of  exchange  against  the  acceptor.      The 


CH.   II.] 


OF  JOINT   PARTIES. 


23 


respective  shares,  which  being  united  make  a  whole  ;  but  these 
together  constitute  one  whole,  which,  whether  it  be  an  interest 


bill  sued  upon  was  drawn  payable  to 
Guidon  &  IIujilics,  under  which  finn  the 
plaintiff  traded.  There  was  no  one  asso- 
ciated with  him  as  partner  ;  but  he  had  a 
clerk  named  Hughes,  an(l  Lord  Ellm- 
horoiKjh  held  that  such  clerk  should  liave 
been  joined.  —  Slixgshv's  Cask,  .5  Co. 
18,  b.,  S.  C.  3  Leon.  160,  S.  C.  2  Leon. 
47,  S.  C.  Jenk.  Cent.  262.  R.  B.  In- 
deed covenanted  with  four  persons  and 
their  assi<;ns,  et  ad  et  cum  qitolibet  eorum, 
that  he  was  lawfully  and  solely  seiz.ed  of 
a  rectory.  Two  of  the  covenantees 
brought  covenant  against  K.  B.,  ami  laid 
ill,  because  it  was  a  joint  covenant,  and 
the  others  ought  to  have  joined.  The 
Court  said :  "  When  it  appears  by  the 
declaration,  that  every  of  the  covenantees 
hath,  or  is  to  have,  a  several  interest  or 
estate,  there,  when  the  covenant  is  made 
with  the  covenantees,  etruin  quo! ibct  eorum, 
these  words,  cum  quoUhet  corum  make  the 
covenant  several  in  respect  of  their  sev- 
eral interests.  As  if  a  man  by  indenture 
demises  to  A  black  acre,  to  B  white  acre, 
to  C  green  acre,  and  covenants  with  tliem, 
and  qunlihit  corum,  that  he  is  lawful  owner 
of  all  the  said  acres,  &c.,  in  that  case  in 
respect  of  the  said  several  interests,  by 
the  said  words,  H  cum  quoVihet  eorum,  the 
covenant  is  made  several ;  but  if  he  de- 
mises to  tliem  the  acres  jointly,  then  these 
words,  cum  quoUhet  eorum,  are  void,  for  a 
man,  by  his  covenant,  (unless  in  rc'S])ect 
of  several  interests,)  cannot  make  it  ttrst 
joint,  and  then  make  it  several  by  the 
same  or  the  like  words,  cum  quolihet  eorum  ; 
for,  although  sundiy  persons  may  bind 
themselves  et  quemUl>et  eorum,  and  so  the 
obligation  shall  be  joint  or  several  at  the 
election  of  the  obligee,  yet  a  man  cannot 
bind  himself  to  three,  and  to  each  of  them, 
to  make  it  joint  or  several  at  the  election 
of  several  ])ersons  for  one  and  the  same 
cause,  for  the  court  would  be  in  doubt  for 
which  of  them  to  give  judgment,  wliich 
the  law  would  not  surt'er,  as  it  is  held  in  3 
H.  6,  44,  h."  See  also,  Bradl)urne  v.  Bot- 
field,  14  M.  &  W.  r).-j9  ;  Sorsbio  r.  Park, 
12  M.  &  W.  146  ;  Lane  v.  Drinkwater,  .5 
Tyi-.  40,  1  C.  M.  &  Ros.  599  ;  Lngli.sh  v. 
Biundell,  8  C.  &  F.  332  ;  Decharms  v. 
Hon^-ood,  10  Bing.  526 ;  Hill  v.  Tucker, 
I  Taunt.  7  ;  Anderson  r.  Martindale, 
1  East,  497  ;  Spencer  v.  Durant,  Comb. 
115;  Thindiletiiorp  v.  Hardesty,  7  Mod. 
116  ;  Chanter  i'.  Lcese  et  al.  4"M.  &  W. 


295;  Wetherell  r.  Langston,  1  Exch. 
634;  Folev  r.  Addcnbrooke,  4  Q.  B. 
197;  Teed"  r.  Elworthy,  14  East,  210; 
Scott  i\  Godwin,  1  B.  &  Pul.  67. 

Amerlcfin  Cases.  —  SwEiGAKT  v.  Berk, 
8  S.  &  Ilawlc,  308.  Seven  of  ten  joint 
obligees  brought  an  action  (living  the 
other  oidigces)  against  the  obligor. 
IleJd,  that  it  could  not  be  maintained. 
Semite,  an  action  could  not  have  been 
maintained  by  one,  although  brought  in 
respect  of  separate  interest.  —  Don  v. 
Halsey,  16  Johns.  34.  Assumpsit  by 
1).  &  D.,  partners,  against  H.  M.  bcin^ 
shown  to  be  a  mendier  of  the  firm,  held, 
that  he  ought  to  have  been  joined  as 
plaintiff.  —  Si.ms  r.  Harris,  8  B.  Monr. 
55.  Debt  on  a  penal  Itond.  The  bond 
was  executed  by  tlie  defendant  in  favor 
of  the  plaintiff  and  several  others,  as  joint 
obligees.  The  ]»lniiitiff  brolight  the  ac- 
tion alone  to  recover  the  penalty.  ILId, 
that  the  action  was  not  well  brought. 
Aliter,  if  the  action  had  been  covenant  on 
the  l)ond  ;  for  in  that  case,  so  far  as  each 
of  the  obligees  in  the  I}ond  has  a  separate 
interest  in  the  performance  of  its  stipula- 
tions, the  cause  of  action  is  several,  and 
not  joint.  (See  Pearce  v.  Hitchcock,  2 
Comst.  388.)  —  Tapscott  r.  Williams, 
10  Ohio,  442.  Where  lands  descended 
to  coparceners,  witli  warranty,  an<l  they 
were  evicted  before  severance,  it  was  held 
that  one  of  them  could  not  sue  alone  on 
the  warranty  for  his  share  of  the  dam- 
ages. 

3.  In  the  fallowing  cases  a  several  action 
teas  held  to  he  properli/  brouqht. 

IvEiGiiTLEY  V.  Watsox,  3  Exch.  716. 
[For  an  abstract  of  this  case  see  note  (7) 
supra.'l — Jokes  v.  Koiuvson,  1  Exch. 
454.  The  declaration  stated  tliat  the 
])laintilf  ami  A  B  carried  on  business  in 
copartnership  ;  and  in  consideration  that 
they  would  sell  rU'fendant  their  business, 
and  become  trustees  for  him  in  respect  of 
all  dei>ts,  &c.,  due  to  i>laintifl'and  A  B  in 
respect  thereof",  defendant  jiromiscd  plain- 
tiff to  pay  him  all  tlie  money  he  had  a<l- 
vanced  in  respect  of  the  coiiartnershij),  and 
for  which  it  was  accountalile  to  j)iaintitl", 
and  also  ])roniised  plaintiff  and  A  B  that 
he  would  discharge  all  the  debts  due  from 
the  plaintifl"  and  A  B  as  such  copartners, 
and  all  liabilities  to  which  tiu-y  were  sub- 
ject. The  declaration  then  aveired  that 
plaintiff  and  A  B  did  sell  the  business  to 

[23] 


24 


THE   LAW   OP   CONTRACTS. 


[book  I. 


or   an    obligation,  belongs   to    all.     Hence  arises    an   implied 
authority  to  act  for  each  other,  which  is  in  some  cases  carried 


defendant,  and  became  trustees  for  him  in 
respect  of  all  debts,  &c.,  due  to  plaintiff 
and  A  B  in  respect  thereof,  and  that,  at 
the  time  of  the  promise,  plaintiff  had  ad- 
vanced a  certain  sum,  for  the  non-payment 
of  which  the  action  was  brought.  On  mo- 
tion in  arrest  of  judgment,  the  defendant 
contended  that  the  consideration  moved 
from  the  plaintiff  and  A  B  jointly,  and 
therefore,  (as  the  consideration  is  tlie  es- 
sential part  of  a  contract,  without  wliich 
the  promise  is  nothing,)  A  B  should  have 
been  joined  as  co-plaintiff;  but  the  court 
held  that  the  separate  interest  of  the  plain- 
tiff in  the  partnership  fund  was  the  consid- 
eration upon  which  the  promise  sued 
upon  in  this  case  was  founded  ;  and,  there- 
fore, the  rule  for  which  the  defendant  con- 
tended did  not  apjily.  —  Palmer  v.  Spar- 
SHOTT,  4  M.  &  Gran.  137.  By  an  agree- 
ment, not  under  seal,  between  defendant 
of  the  one  part,  and  plaintiff  and  F.  of  the 
other  part — reciting  that  plaintiff  and  F. 
had  assigned  certain  property  to  defend- 
ant for  150/.  apiece,  and  that  it  had  been 
agreed  that  defendant  should  retain  50/.  out 
of  each  1 50/.  —  the  defendant,  in  considera- 
tion of  the  two  several  sums  of  50/.  and 
50/.  so  retained,  agreed  with  plaintiff  and 
F.,  their  executors,  &c.,  to  indemnify 
plaintiff  and  F.,  and  each  of  them,  their 
heirs,  executors,  &c.,  and  their,  and  each 
and  every  of  their,  estates  and  effects, 
from  the  costs  of  a  certain  action.  Held, 
that  plaintiff  might  maintain  assumpsit 
upon  this  aorreement  without  joining  F.  — 
Poole  v.  Hill,  6  M.  &  ^Y.  835.  Cove- 
nant. By  articles  of  agreement,  reciting 
that  the  defendant  had  contracted  with  J., 
as  the  agent  of  the  plaintiff  and  the 
other  owners  of  the  property,  for  the  pur- 
chase of  the  lands  therein  mentioned,  the 
defendant  covenanted  with  the  plaintiff, 
and  the  several  otlier  parties  beneficially 
interested,  to  perform  such  contract  by 
paying  the  purchase-money  on  a  certain 
day,  &c.  Utld,  that  tliis  covenant  was 
several,  and  that  the  plaintiff  might  sue 
alone  for  the  non-payment  of  his  share  of 
the  purchase-money,  without  joining  the 
other  parties  beneficially  interested.  — 
Place  v.  Delegal,  4  Bing.  N.  C.  426. 
Assumpsit.  One  Evans,  as  attorney  for 
plaintiffs,  executors  of  Miers,  having  sold 
an  estate,  to  a  share  of  the  proceeds  of 
which  W.  was  entitled  as  legatee,  and  de- 
fendant claiming  W.'s  share  of  such  pro- 

[24] 


ceeds,  under  an  agreement  with  "W.,  plain- 
tiffs paid  the  amount  to  defendant,  on  re- 
ceiving from  liim  a  guaranty  in  these 
terms  :  "  Mr.  Jolm  Evans,  and  also  Messrs. 
Place  &  Meabry,  [the  plaintiffs,]  as  the  ^ 
executors  of  the  will  of  the  late  Mr.  John 
Miers :  In  considei'ation  of  your  having 
paid,  &c.,  I  hereby  undertake  to  indemni- 
fy and  save  you  and  each  of  you  harm- 
less, &c.  C.  Delegal."  Held,  that  plain- 
tiffs might  sue  on  this  guaranty  without 
joining  Evans.  — Thacker  v.  Shepherd, 
2  Chitty,  652.  The  plaintiff  and  one  R., 
being  insurance  brokers  and  partners, 
effected  a  policy  of  insurance  on  the  de- 
fendant's ship.  The  premium  was  not 
paid  to  the  imderwritcr  till  after  R.  had 
become  bankrupt,  when  it  was  paid  by  the 
plaintiff  alone  out  of  his  private  property. 
The  plaintiff  brought  this  action  alone  to 
recover  the  amount  of  the  premium  thus 
paid.  Held,  that  tlie  action  was  well 
brought.  —  Glossop  v.  Colman,  1  Stark. 
25.  Assumpsit.  Plaintiff  had  held  out 
his  son  as  his  partner,  and  had  made  out 
bills  and  signed  receipts  in  their  joint 
names ;  but  held  by  the  court  of  K.  B. 
that  he  was  not  precluded  from  maintain- 
ing his  action  by  showing  that  his  son 
was  not  in  fact  his  partner.  —  Daven- 
port V.  Rackstrow,  1  C.  &  P.  89.  Hid- 
loch,  B.,  S.  P.  — I^LL  V.  Nainbt,  10  B. 
&  Cress.  20,  S.  P.  "A  party  with  whom 
the  contract  is  actually  made  may  sue 
without  joining  others  with  whom  it  is 
apparenth'  made."  Parke,  J.  —  Garret 
V.  Taylor,  1  Esp.  Nisi  Prius,  117, 
"  Three  persons  had  employed  the  de- 
fendant to  sell  some  timber  for  them,  in 
which  they  were  jointly  concerned.  Two 
of  them  he  had  paid  their  exact  propor- 
tion, and  they  had  given  him  a  receipt  in 
full  of  all  demands.  The  third  now 
brought  his  action  for  the  remainder, 
being  his  share ;  and  it  was  objected,  that 
as  this  was  a  joint  employment  by  three, 
one  alone  could  not  bring  his  action.  But 
it  was  ruled  by  Lord  Mansfield,  that  where 
there  had  been  a  severance  as  above  stated, 
that  one  alone  might  sue.  4  G.  3  MS." 
KiRKMAN  V.  Newstead,  1  Esp.  Nisi 
Prius,  117.  "Action  for  the  use  and  oc- 
cupation of  a  house.  It  appeared  that 
the  house  was  the  property  of  six  tenants 
in  common,  to  all  of  whom,  except  the 
plaintiff,  the  defendant  had  paid  his  rent ; 
and  tliis  action  was  for  his  share  of  the 


CH.  11.] 


OF   JOIN'T    PARTIES 


25 


very  far.     Thus,  if  several  plaintiffs  sue  for  a  joint  dcnfiand,  and 
the  defendant  pleads  in  bar  an  accord  and  satisfaction   with 


rent.     It  was  objected   that  one  tenant 
in  common  alone  could  not  hrinj:^  this  ac- 
tion, hut  that  all  oufrht  to  join  ;  hut  Lord 
Mansfiihl  oveiTulcd  the  ohjection,  and  the 
plaintlft"   recovered.      Sitt.    Westni.    M. 
1776,  MS."     [The  above  two  cases  from 
Espinassc's   Kisi   Prius,  are  of  doubtful 
authority.     See   note  to  Ilatsell  v.  Grif- 
fith, 4  Tyr.  488,  and  Walford  on  Parties, 
46G.]  —  WoTTON  V.  Cooke,  Dyer,  .3.37,  b. 
Covenant.    Three  purchased  lands  joint  Jy 
in  fee  and  covenanted  each  icith  the  others 
and  their  heii's,  et  eoritm  utrique,  to  convey 
to   the  heirs  of  those   who  happened  to 
die  first  their  respective  third  parts.    Two 
of  the  three  having  died,  the  heir  of  one  of 
them  brou^^ht  this  action  against  the  sur- 
vivor, alleging  that  he  had  not  conveyed 
to  him  according  to  his  covenant.    It  was 
moved,  in  arrest  of  judgment,  that   the 
covenant  was  joint,  and  not  several,  for 
the  word  **'  utrujue "  in  Latin  is  conjunc- 
tiin,  and  not  separatim ;  sed  non  allocatur, 
and  judgment  was  given  for  the  plaintiff. 
American  Cases.  —  Hall   v.  Leigh,  8 
Cranch,  50.     Plaintiff"  and  P.  consigned 
to    defendant   a   quantity  of    cotton,   of 
which  they  were  joint  owners.    They  gave 
defendant  separate  and  different  instruc- 
tions for  the  disposition  of  their  respective 
moieties,  each  distinctly  confining  his  in- 
structions to  his  own  moiety.     Held,  re- 
versing judgment  of  circuit   court,   that 
plaintiff  could  maintain  an  action  for  the 
violation  of  his  instnictions,  without  join- 
ing P.  — SwETT  r.  Patiiick,  2  Fairfield, 
179.    Defendant  conveyed  land  witli  war- 
ranty to  A,  13,  and  C.     Held,  on  demur- 
rer, that  a  several  action  on  tlie  warranty 
was    well    l)rought    by    A.  —  SiiAia*   v. 
CoxKLiNG,  16  Vennont,  354.    Covenant. 
By  indenture  between   the   plaintiff  and 
others,  of  the  first  part,  and  the  defend- 
ant of  the  other  part,  the  defendant  cove- 
nanted with  the   parties  of  the  first  jtart 
that    he    would    turn    from    its    natural 
channel  a  certain  stream  of  water  which 
flowed  over  the  land  of  the  covenantees ; 
and  whereas,  the  watcc,  when  diverted, 
would  pass  over  the  land  (jf  the  ])laintiflF, 
that  lie  would  so  convey  it  as  not  to  in- 
jure said  land.     The  plaintiff  brought  the 
action   without   joining    the  other  cove- 
nantees, and  alleged  breaches  of  both  cov- 
enants.    //('/(/,  that  he  might  recover  on 
the  second  covenant,  but  not  on  the  first. 
Rcdjicld,  J.,  said  the  court  were  willing  to 

VOL.  I.  3 


al)ide  by  the  rule  that,  where  the  interest 
in  the  subject-matter  secured  by  the  cov- 
enant is  several,  although  the  terms  of  the 
covenant  will  more  naturally  bear  a  joint 
interpretation,  )'et,  if  they  do  not  exclude 
the  inference  of  being  intended  to  be  sev- 
eral, they  shall  have  a  several  construc- 
tion put  upon  them.  See  also  Catlin  v. 
Barnard,  1  Aikens  Vt.  9 ;  Harrold  v. 
Whitaker,  10  Jur.  1004;  Mills  v.  Lad- 
brooke,  7  M.  &  Gr.  218  ;  Simpson  v.  Clay- 
ton, 4  Bing.  N.  C.  758  ;  Withers  v.  Birch- 
am,  3  B.  &  Cr.  254 ;  Johnson  v.  Wilson, 
Willcs,  248;  Llovdr.  Aichbold,  2  Taunt. 
324;  Story  v.  BKhardson,  6  Bing.  N.  C. 
123  ;  Owston  v.  Ogle,  13  East,  538 ;  Lahy 
V.  Holland,  8  Gill,  445. 

4.  In  the  foil  Old  n  (J  cases  it  was  held  that 
a  joint  action  should  have  been  severed. 

Beaton  v.  Booth,  4  Ad.  &  El.  528. 
Assumpsit.     A,  B,  and  C,  being  interest- 
ed in  certain  lands,  but  having  no  com- 
mon legal  interest  in  any  portion  of  them, 
agreed  together,  according  to  their  respec- 
tive interests,  to  put  them  up  for  sale,  and 
the  lands  were  so  put  up,  under  the  direc- 
tion of  their  agent,  in  lots.     Each  lot  was 
described  in  a  .separate  paper,  containing 
the   conditions  of  sale,  in  which  it  was 
stipulated,  among  other  things,  that  if  the 
purchaser  should  be  let  into  the  premises 
before  payment  of  the  purchase-money,  he 
should  be  considered  tenant  at  will  to  the 
vendors,  and  pay  interest  at  the  rate  of 
four  per  cent,  on  the  amount  of  purchase- 
money,  as  and  for  rent.   Defendant  bought 
four  of  the  lots,  and  was  let  into  posses- 
sion, and  held  for  several  years  without 
paying  the  jnuvhase-money ;   whereupon 
the   vendors   brought   their   joint   action 
against  him,  to  recover  rent.     Their  dec- 
laration contained  two  counts  :  one  upon 
the  contract  between  the  ])laintifts  and  de- 
fendant for  the  sale  of  tlie  projicrty  ;  the 
other  for  use  and  occu])ation.     Ilrhl,  that 
the  action  could  not  be  sustained  on  either 
count ;  not  on  the  first,  because  no  joint 
contract  with  all  the  plaintiffs  was  proved ; 
not  on  the  second,  because  no  joint  owner- 
ship   in    the    plaintiffs,    and    occupation 
under  them  was  proved.  —  Wilkinisox  v. 
Hall,   1    Bing.   N.   C    713.     Action   of 
debt  against  lessee  for  double  value,  under 
Stat.  4  G.  2,  c.  28,  for  holding  over.    //,ld, 
that  tenants  in  common  could  not  main- 
tain such  action  jointly  wlieix'  there  had 
been  no  joint  demise.     "  If  there  be  no 

[25] 


26 


THE   LAW   OF   CONTRACTS. 


[book  I. 


one  of  the  plaintiffs,  but  without  any  allegation  that  the  other 
plaintiffs  had  authorized  the  accord  and  satisfaction,"  the  plea  is 
nevertheless  good,  (d)  For  a  release  of  a  debt,  or  of  a  claim  to 
damages,  by  one  of  many  who  hold  this  debt  or  claim  jointly, 
is  a  full  discharge  of  it,  and  this  whether  they  hold  this  debt  or 
claim  in  their  own  right,  or  as  executors  or  administrators,  (e) 
This  has  been  extended  to  the  case  where  the  release  is  given 
by  one  of  joint  plaintiffs,  who,  although  a  party  to  the  record, 


1 


joint  demise,  there  must  be  several  actions 
for  rent,  for  a  joint  action  is  not  maintain- 
able except  upon  a  joint  demise."  Tin- 
dal,  C.  J.  —  Servante  v.  James,  10  B. 
&  Cr.  410.  Covenant.  The  defendant, 
who  was  master  of  a  vessel,  covenanted 
vrith  the  plaintiff  and  others,  part  owners, 
and  their  several  mid  respective  executors, 
administrators,  and  assigns,  to  pay  certain 
moneys  to  them,  and  to  their  and  every  of 
their  several  and  respective  executors,  ad- 
ministrators, and  assigns,  at  a  certain 
banker's,  and  in  such  parts  and  proportions 
as  were  set  against  their  several  and  re- 
spective names.  The  action  Avas  brought 
by  all  the  covenantees  jointly.  Held,  that 
the  covenant  was  several,  and  so  the  ac- 
tion not  well  brought,  but  each  cove- 
nantee should  have  In-ought  a  separate  ac- 
tion.—  Graham  v.  Robertson,  2  T.  R. 
282.  Plaintiffs,  together  witli  A  &  B, 
being  owners  of  one  ship,  and  the  defend- 
ant of  another,  a  prize  was  taken,  con- 
demned, and  shared  I))'  agreement  between 
them  ;  afterwards  the  sentence  of  con- 
demnation was  reversed,  and  restitution 
aAvardcd,  with  costs,  which  was  paid  solely 
hj  tlie  plaintiffs,  A  and  B  having  in  the 
mean  time  become  bankrupts.  An  action 
could  not  be  brought  by  the  ])laintiffs 
alone  for  a  moiety  of  the  restitution  money 
and  costs,  because  it  was  either  a  partner- 
ship transaOtion,  when  A  and  B  ouglit  to 
be  joined ;  or  not,  when  separate  actions 
should  be  brought  Ijy  each  of  tlie  persons 
paying.  See  also  Smith  v.  Hunt,  2  Chittv, 
142  ;  Brandon  v.  Hubbard,  2  Br.  &  Bing. 
11;  Tippet  r.  Hawkey,  3  Mod.  263; 
Makepeace  v.  Coutes,  s'Mass.  451,  over- 
ruled in  Capen  v.  Barrows,  1  Grav,  376 ; 
Brand  v.  Boulcott,  3  Bos.  &  Pul.  235  ; 
Kelby  V.  Steel,  5  Esp.  194. 

American  Cases. — BoGGS  v.  Curtix, 
1 0  S .  &  Rawle,  211.  Two  firms,  C .  &  B . 
and  J.  &  D.,  having  become  sureties  for 
A.,  gave  their  joint  aiul  sevei-al  note  for 
the  debt  of  A.     Held,  that  the  two  firms, 

[26] 


on  payment  by  them  of  the  note,  could 
not  maintain  a  joint  action  against  A.,  it 
not  appearing  that  the  payment  was  made 
out  of  a  joint  fund  of  the  two  firms. 
"  The  action  of  assumpsit  must  be  joint 
or  several,  accordingly  as  tlie  promise  on 
wliich  it  is  founded  is  joint  or  several. 
Wliere  the  promise  is  express,  tlicre  can 
be  little  difficulty  in  determining  to  which 
class  .it  belongs,  as  its  nature  necessarily 
appears  on  the  face  of  the  contract  itself ; 
and  if  it  be  joint,  all  to  wliom  it  is  made 
must,  or  at  least  may  sue  on  it  jointly.  . .  . 
But  an  implied  promise,  being  altogether 
ideal,  and  raised  out  of  the  consideration 
only  by  intendment  of  law,  follows  the 
nature  of  the  consideration ;  and  as  that 
is  joint  or  several,  so  will  the  promise  be." 
Gibson,  J.  —  Carthrae  v.  Bkowx,  3 
Leigh,  98.  C.  covenanted  with  B.  &  J. 
that  lie  would  pay  B.  and  J.  S300,  namely,* 
to  each  of  them  one  moiety  tliereof. 
Held,  a  several  covenant,  so  that  B.,  as 
the  sun'ivor  of  the  two,  could  not  main- 
tain an  action  to  recover  the  whole  sum. 
— Ulmer  r.  CuxxixGHAM,  2  Greenl. 
117.  Assumpsit  for  money  had  and  re- 
ceived. Goods,  belonging  to  some  and 
not  to  all,  of  sundry  joint  debtors,  were 
taken  in  execution  and  wasted.  Held, 
that  all  the  debtors  could  not  maintain  a 
joint  action  against  tlie  shei-ift',  and  tliat 
those  only  ought  to  have  sued  whose 
propertv  was  actually  wasted. 

(d)  Wallace  et  al.  v.  Kensall,  7  M.  & 
W.  264. 

(e)  Bac.  Abr.  Release,  D.  E. ;  Jacomb 
r.  Harwood,  2  Ves.  Sen.  265 ;  INIurray  v. 
Blatchford,  1  Wend.  583;  Najjier  rt  a/,  u. 
McLcod,  9  Wend.  120  ;  Deckers.  Living- 
ston, 15  Jolms.  479;  Pierson  et  al.  v. 
Hooker,  3  Johns.  68  ;  Austin  et  al.  v.  Hall, 

13  Johns.  286;  Bulkley  et  al.  v.  Dayton, 

14  Johns.  387;  Bruen"^  r.  Marquand,  17 
Johns.  58 ;  Halscy  et  al.  v.  Fairbanks,  4 
Mason,  206  ;  Tuckerman  v.  Newliall,  17 
Mass.  581 ;  Wiggin  r.Tudor,  23  Pick.  444. 


en.  II.]  OF   JOINT   PARTIES.  27 

is  not  a  party  in  interest,  but  whose  name  the  actual  parties  in 
interest  were  obliged  to  use  with  their  own  in  bringing  the 
action.  (/)  Nevertheless,  if  in  such  a  case  the  party  taking  the 
release,  and  pleading  it  in  bar,  is  aware  that  the  party  giving  it 
had  no  interest  in  the  claim  released,  the  court  would  disregard 
the  release ;  (g-)  and  upon  such  facts  as  these  the  court  have 
ordered  the  release  to  be  given  up  and  cancelled,  (/i) 

If  two  or  more  are  jointly  bound,  or  jointly  and  severally 
bound,  and  the  obligee  releases  to  one  of  them,  all  are  dis- 
charged, (i)  Formerly  a  very  strict  and  technical  rule  was 
applied  to  these  cases  ;  thus,  where  an  action  was  brought 
against  one  of  three  who  were  bound  jointly  and  severally,  a 
plea  in  bar  that  the  seal  of  one  of  the  others  was  torn  off  was 
held  good.  And  where  tjiree  were  bound  jointly  and  severally, 
and  the  seals  of  two  were  eaten  off  by  rats,  the  court  inclined 
to  think  the  obligation  void  against  all.  (j)  But  if  the  seals 
had  remained  on  until  issue  were  joined,  their  removal  after- 
wards would  not  have  avoided  the  bond,  (k) 

Where  a  technical  release,  that  is,  a  release  under  seal,  is 
given  to  one  of  two  joint  debtors,  and  the  other  being  sued, 
pleads  the  joint  indebtedness  and  the  release,  it  is  no  answer  to 
say  that  the  release  was  made  at  the  defendant's  request,  and 
in  consideration  that  he  thereupon  promised  to  remain  liable 
for  the  debt,  and  unaffected  by  the  release ;  for  this  would  be 
a  parol  exception  to  a  sealed  instrument.  (/)  This  being  the 
reason,  it  should  follow  that  only  a  release  under  seal  should 
have  this  effect ;  and  the  weight  of  authority  is  certainly  and 
very  greatly  in   favor  of  this  limitation,  (m)     It  has,   however, 

(  f)  Wilkinson  ct  al.  v.  Liiulo,  7  M.  &  ( /)    Bayly   v.    Garforcl,    March,    125  ; 

W."  81  ;  Gil.son  v.  Winter,  5  B.  &  Ad.  Seaton  v.  Henson,  2  Show.  29. 

96.  (k-'i  Nichols  v.  Haywood,  Dyer,  .59,  pi. 

{'j)  Gram   ct    <tl.    v.   Cadwell,   5   Cow.  12,13;  Michacll  r.  Stockwortli,  (Jwen,  8. 

489  ;  Lc-h  i'.  Lcgh,  1  B.  &  P.  447.  (/)  Brooks  v.  Stuart,  9  Ad.  &  El.  854; 

(//)  Barker  f<  «7.  v.  Richardson,  1  Y.  &  Parker  c.  Lawrence,  Hol).  70. 

J.  .'JGi.  (ill)    Siiaw    V.    Pratt,    22   Pick.   305; 

(/)  Co.  Lit.  232  a ;  Bac.  Ahr.  Release,  Walker  v.   McCulloch,   4    Greenl.   421  ; 

G. ;  Vin.  Al)r.   Release,  G.  a  ;  IJean  v.  Lunt  et  al.   v.   Stevens,  24  Maine,  534 ; 

Newhall,  8  T.   R.   1G8;  Hiitton   r.  Eyi-c,  Harrison   v.    Close  et  al.  2  Johns.   448; 

6  Taunt.   289;  Lacv  r.   Kvnaston,  1  Ld.  Rowiev  r.  Stoddard,  7  Johns.  210;  JIc- 

Rayni.  G90,  S.   C.   12  Mod.   551;   Clay-  Allester  r.  Si)ra;rue,  34  Me.  296  ;  Pond  i\ 

ton   r.  Kynaston,  Salk.  574 ;  Milliken  r.  Williams,!  Gray,  630. 
Brown,   1    Rawle,  391;  Johnson  v.  Col- 
lins, 20  Ala.  435. 

[27] 


28  THE  LAW  OF  CONTRACTS.  [bOOK  I. 

been  held  in  this  country,  that  a  release  which  is  not  under  seal, 
to  one  of  many  joint  debtors,  of  his  share  or  proportion  of  the 
debt,  operates  in  law  as  a  full  discharge  of  all.  (n)  But  though 
the  word  release  be  used,  even  under  seal,  yet  if  the  parties, 
the  instrument  being  considered  as  a  whole  and  in  connection 
with  all  the  circumstances  of  the  case  and  the  relations  of  the 
parties,  cannot  reasonably  be  supposed  to  have  intended  a 
release,  it  will  be  construed  as  only  an  agreement  not  to  charge 
the  person  or  party  to  whom  the  release  is  given,  and  will  not 
be  permitted  to  have  the  effect  of  a  technical  release  ;  (o)  for  a 
general  covenant  not  to  sue  is  not  itself  a  release  of  the  cove- 
nantee, but  is  so  construed  by  the  law  to  avoid  circuity  of 
action ;  and  a  covenant  not  to  sue  one  of  many,  who  are  jointly 
indebted,  does  not  discharge  one  wlip  is  a  joint  debtor  with 
the  covenantee,  nor  in  any  way  affect  his  obligation.  (/>) 

It  may  be  added,  though  not  strictly  within  the  law  of  con- 
tracts, that  the  effect  of  a  release  of  damages  to  one  of  two 
wrongdoers  is  the  same  as  a  release  of  debt;  it  is  in  its  opera- 
tion a  satisfaction  of  the  whole  claim  arising  out  of  the  tort, 
and  discharges  all  the  parties,  (q)  And  in  actions  against  two 
or  more  defendants  for  a  joint  tort,'it  has  been  said  that  dam- 
ages should  be  assessed  against  all  jointly  for  the  largest 
amount  which  either  ought  to  pay.  (r)  The  true  rule,  however, 
must  be,  that  the  plaintiff  is  entitled  to  compensation  for  all  the 
injury  he  has  received,  and  for  this  there  should  be  judgment 
against  all  who  joined  in  doing  the  wrong.  Several  damages 
should  not  be  assessed  ;  but  if  they  are,  the  plaintiff  may  elect 
which  sum  he  will,  and  remitting  the  others,  enter  judgment 
for  this  sum  against  all.  (s) 

(n)  Milliken  v.  Brown,  1  Rawle,  391.  Bing.  731,  S.  C.  4  M.   &  P.  561 ;  Dean 

(o)  Solly  V.  Forbes,  2  Brod.  &  Bing.  v.  Newiiall,  8  T.  E.  168. 

46  ;    ]\IcAllester  v.   Sprague,  34  Maine,         (q)  Brown  v.  Marsh,  7  Verm.  320. 

296.  (r)  Bull.  N.  P.  15  ;  Lowfield  r.  Ban- 

(p)  Lane   et.   al.    v.    Owings,    3    Bibb,  croft,  2  Str.   910;   Onslow  v.   Oreluird,  1 

247;    Shed    v.   Pierce,    17    Mass.    628;  Str.  422 ;  Brown  r.  Allen  et  al.  4  Esp. 

Couch  I'.  Mills,  21  Wend.  424;  Eowley  158;  Austen  i?.  Willward,  Cro.  El.  860  ; 

V.  Stoddard,  7  Johns.  209  ;  McLellan  v.  Smithson  v.  Garth,  3  Lev.  324. 

Cumberland  Bank,  24  Maine,  566  ;  Bank         (s)  Johns  et  al.  v.  Dodsworth,  Cro.  Car. 

of  Catskill   V.   Messenger  et  al.   9  Cow.  192;  Walsh  v.  Bishop,   Cro.   Car.  243; 

37;  Durelli'.  Wendell  et  al.  8  N.  Hamp.  Heydon's  Case,  11   Co.  5 ;  Halsey  e<  al. 

369;  Bank   of  Chenango   v.   Osgood,  4  r.  "Woodruff,   9   Pick.    555;  Eodney  v. 

Wend.    607 ;    Lancaster  v.    Harrison,    6  Strode,  Carth.  19. 

[28] 


CH.  il]  of  joint  parties.  29 

Only  a  voluntary  release  by  the  party  injured,  or  claimant, 
has  the  effect  of  discharging  all,  although  given  but  to  one  ;  for 
if  one  of  two  who  owe  jointly,  either  a  debt  or  compensation 
for  a  wrong,  be  discharged  by  operation  of  law,  without  the 
concurrence  or  consent  of  the  party  to  whom  the  debt  or  com- 
pensation is  due,  he  does  not  hereby  lose  his  right  to  enforce 
this  claim  against  those  not  discharged,  (t)  But  it  is  said,  that 
if  the  discharge  by  operation  of  law  is  at  the  instance  of  the 
plaintiff,  or  be  caused  by  him,  it  then  operates  as  a  discharge 
of  the  other  debtors,  (w) 

The  legal  operation  of  a  release  to  one  of  two  or  more  joint 
debtors  may  be  restrained  by  the  express  terms  of  the  instru- 
ment. For  if  a  release  containing  such  a  proviso  be  pleaded 
by  the  other  in  bar  to  an  action  against  both,  a  replication  that 
the  action  is  brought  against  both,  only  to  recover  of  the  other, 
is  good,  (v) 

If  an  action  be  brought  against  many,  and  to  this  an  accord 
and  satisfaction  by  one  be  pleaded  in  bar,  it  must  be  complete, 
covering  the  whole  ground,  and  fully  executed.  It  is  not 
enough  if  it  be  in  effect  only  a  settlement  with  one  of  the  de- 
fendants for  his  share  of  the  damages;  nor  would  it  be  enough 
if  it  were  only  this  in  fact,  although  in  form  an  accord  and 
satisfaction  of  the  whole  claim,  (iv) 

Joint  trustees  are  not  necessarily  liable  for  each  other,  or 
bound  by  each  other's  acts.  Each  is  liable  for  the  acts  of 
others,  only  so  far  as  he  concurred  in  them,  or  connived  at 
them,-  actively  or  negligently.  Each  is,  in  general,  responsi- 
ble only  for  money  which  he  has  himself  received ;  and  if  he 
signs  a  receipt  with  the  others,  he  may,  at  least  in  equity, 
show  that  he  did  not  receive  the  money,  and  thus  remove  or 
limit  his  liability ;  but  if  this  be  not  shown,  the  joint  receipt 
is  evidence  against  all.  (x)     A  trustee  may  thus  explain    his 

.  ^<)  Ward  r.  Johnson  fVri/.  13  Mass.  152.  (w)    Anilcr.«on    ?•.    Turnpike    Co.    16 

(u)  Robertson  r.  Smith,  18  .Tolnis.  459.  Johns.   87;    Chirk  v.  Dinsniore,  5  New 

(r)  Twopenny  v.   Youn^',  3  B.  &  Cr.  Ilanip.   136;  Hayne  r.  Orton,  Cro.  Eliz. 

211,  S.  C.  5  ]).'&  R.  2G1  ;  Lancitster  v.  305;  Lvnn  rt  al.  r.  lirucc,  2  II.  Bl.  317. 

Ilnrrison,  4  Moore  &  Payne,  5G1,  S.  C.  (r)  Fellows  v.  Mitchell  dal.  1  I'.  Wnis. 

6  Binj:.  726  ;  iSollv  ft  al.  'v.  Forhes  U  al.  83,  and  Cox's  note  ;  Wesfley  r.  Clarke,  1 

2  Br.  &  Bing.  38^;  North  v.  Wakefield,  Eden,  360 ;  Grifliu  v.  Macaulay,  7  Grat- 

13  Q.  B.  536.  tan,  470. 

3*  [29] 


30  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

• 

receipt,  because  he  is  obliged  to  join  with  the  others  in  giving 
one ;  but  a  co-executor  not  being  under  this  necessity,  it  is  said 
that  he  is  bound  by  the  receipt  he  signs.  (//)  And,  in  general, 
any  co-executor  or  co-trustee  who  does  jointly  with  the  others 
any  act  which  it  is  not  necessary  for  him  to  do,  is  bound  there- 
by to  any  party  who  shall  suffer  therefrom,  (z) 

If  two  or  more  persons  are  bound  jointly  to  pay  a  sum  of 
money,  and  one  of  them  dies,  at  common  law  his  death  not 
only  severs  the  joinder,  but  terminates  the  liability  which  be- 
longed to  him,  so  that  it  cannot  be  enforced  against  his  repre- 
sentatives;  («)  but  if  they  were  bound  jointly  and  severally, 
the  death  of  one  has  not  this  effect,  {aa)  If  bound  jointly, 
the  whole  debt  becomes  the  debt  of  the  survivors  alone,  and  if 
they  pay  the  whole,  they  can  have  at  law  no  contribution 
against  the  representatives  of  the  deceased,  because  this  would 
be  an  indirect  revival  of  a  liability  which  death  has  wholly  termi- 
nated, {b)  But  where  the  debt  was  made  joint  by  fraud  or 
error,  equity  will  relieve  by  granting  contribution  ;  as  it  will  if 
the  debt  were  for  money  lent  to  both  and  received  by  both,  so 
that  both  actually  participated  in  the  benefit,  {bb)  If  the  last 
survivor  dies,  leaving  the  debt  unpaid,  his  representatives  alone 
are  chargeable,  and  have  no  contribution  against  the  representa- 
tives of  the  other  deceased  obligor. 

In  most  of  the  United  States,  the  rule  of  the  common  law  is 
changed  by  statute.  The  representatives  of  the  deceased  con- 
tinue to  be  bound  by  his  obligation.  If  the  debtors  were 
jointly  bound,  the  creditor  could  bring  but  one  action  when  all 
were  alive,  and  that  against  all ;  and  then  obtaining  judgment 
and  taking  out  execution  against  all,  he  might  levy  it  on  all  «r 
either  as  he  chose,  leaving  them  to  adjust  their  proportions  by 
contribution.  Now,  it  should  seem  that  after  the  death  of  a 
joint   debtor,  the   creditor   cannot  join   the  survivors  and  the 

(;/)  Sadler  v.  Hobbs,  2  Br.  Ch.  114;  Hooper,  2  Mass.  572;  Yorks  v.  Peck,  14 

Chambers  v.  Minchin,  7  Ves.  198.  Barb.  644. 

(z)  Bricc  w.  Stokes,  11  Ves.  319;  Sad-         (aa)  Towers   v.   Moore,   2    Vern.   99; 

ler  V.  Hobbs,  2  Brown,  Ch.  95,  and  note  to  May  v.  Woodward,  Freeman,  248. 
Am.  edition.  (b)  See  note  (e)  p.  33,  post. 

(a)  Bac.  Abr.   Oblioations,  D.  4 ;  Os-         (bb)  Waters  v.  Riley,  2  Har.  &  Gill, 

borne  I'.  Crosbcrn,  1  Sid.  238;  Calder  v.  313;  Simpson  v.  Vaughan,  2  Atk.   33; 

Rutherford,  3  Br.  &  Bing.  302 ;  Foster  v.  Yorks  v.  Peck,  14  Barb.  644. 

[30] 


en.  II.]  OF   JOINT   PARTIES.  31-*32 

representatives  of  the  deceased  in  one  action,  even  if  the  statute 
gives  the  creditor,  where  one  of  many  joint  debtors  dies,  the 
same  remedy  by  action  as  if  the  contract  were  joint  and  sev- 
eral;  inasmuch  as  an, executor  cannot  be  joined  with  the  sur- 
vivors in  an  action  upon  a  contract  which  was  originally  joint 
and  several,  because  one  would  be  charged  de  bonis  iestaioris, 
and  the  other  de  bonis  propriis,  which  cannot  be  ;  [cc)  but  the 
creditor  may  elect  which  to  sue.  [dd)  He  may  sue  either,  or 
both,  in  distinct  actions,  and  may  levy  his  executions  upon 
either  or  both.  But  he  can  get,  in  the  whole,  only  the  amount 
of  his  debt;  and  the  survivors  and  the  representatives  of  the 
deceased,  or  the  representatives  of  all  the  debtors,  if  all  are 
deceased,  have  against  each  other  a  claim  for  contribution,  if 
either  pay  more  than  a  due  proportion,  {ee) 

If  one  or  more  of  several  joint  obligees  die,  the  right  of  action 
is  solely  in  the  survivors,  and  if  all  die,  the  action  must  be 
brought  by  the  representatives  of  the  last  survivor.  (/)  But  if 
the  right  under  the  contract  be  several,  the  representatives  of 
the  deceased  party  may  sue,  although  the  other  obligees  are 
living.  (5-) 

SECTION    III. 

OF   CONTRIBUTION. 

Where  two  or  more  persons  are  jointly,  or  jointly  and  sever- 
ally, bound  to  pay  a  sum  of  money,  and  one  or  more  of  them 
*pay  the  whole,  or  more  than  his  or  their  share,  and  thereby  relieve 
the  others  so  far  from  their  liability,  those  paying  may  recover 
from  those  not  paying,  the  aliquot  proportion  which  they  ought 
to  pay.  (c)     The  persons  not  paying,  but  being  relieved  from  a 

(cc)  Konip    I'.   Andrews,    Carth.    171  ;         (c)  Ilarlicrt's  case,  13  Co.  K.  13  a,  15 

Hall  V.  Huflain,  2  Lev.  228.  h ;    Layer   v.    Nelson,    !•    Vernon,   45G  ; 

(t/(/)  May  r.  Woodward,   Frcem.  248;  Toussa'int  r.   Martinnant,  2  T.  K.  104; 

Enys  r.  Donnitliorne,  2  Burr.  1190.  Kemp   r.    Finden,  12    M.    &    W.   421; 

(ec)  I'easlee   v.  Breed,  10   New   Ilainp.  Browne  v.  Lee,  0  B.  &  Cress.  689  ;  Sad- 

489  ;  Baehelder  r.  Fiske,  17  Mass.  404.  ler  /•.  Nixon,  .')  B.  &  Ad.  93C  ;  Holmes  v 

(/)  Kolls  V.  Yate,  Yelv.    177;  Ander-  Williamson,  6  ISL  &  Sel.  l.")t) ;  Blaekett 

son  V.  Marliiidale,  1  East,  497  ;  Stowcll's  v.  Weir,  .5  B.    &    Cress.  387  ;  Lanchester 

Admr.  v.  Drake,  3  Zabriskie,  310.  v.  Trieker,  1  Bins;.  201  ;  Bonlter  r.  Pep- 

(y)  Shaw  v.  Sherwood,  Cro.  Eliz.  729.  low,  9  Com.  Beneh,  193.      In  Offley  and 

[31] 


32- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


positive  liability  by  the  payment  of  others  who  were  bound 
with  them,  are  held  by  the  law  as  under  an  implied  promise  to 
contribute  each  his  share  to  make  up  the  whole  sum  paid,  [d) 
And  this  rule  applies  equally  to  those  who  are  bound  as 
original  co-contraetors,  and  to  those  who  are  bound  to  pay  the 
debt  of  another  or  answer  for  his  default,  as  co-sureties,  (e) 


Johnson's  case,  2  Leon.  166  [A.  D. 
1584,]  the  Court  of  Kinj^-'s  Bench  hekl 
that  one  surety  had  no  rij^lit  at  common 
law  to  recover  contriljution  from  a  co- 
surety. "  The  first  case  of  tlie  kind  in 
which  the  phxintift'  succeeded  was  hefore 
Gould,  J.,  at  Dorchester."  BuUtr,  J.,  2 
T.  R.  105. — The  action  for  money  paid 
to  recover  contribution  is  founded  upon 
the  old  writ  c/e  contributione  Jliciciidd. 
TIndal,  C.  J.,  Edger  v.  Knapp,  5  M.  & 
Gran.  758,  citing  Fitzherbert's  Natura 
Brevium,  378,  in  edition  of  1794,  p.  162. 
From  the  passage  in  Fitzherbert,  as  the 
English  version  is  amended  by  tlie  learned 
reporter  of  Edger  i\  Knapp,  (5  ]M.  & 
Gran.  758,  759,)  it  seems  a  parcener  dis- 
trained upon  is  entitled  to  contribution 
without  any  express  agreement  on  the 
part  of  her  coparceners,  while  to  entitle  a 
joinf  feoffee  to  contribution,  under  similar 
circiiuLstances,  the  other  feoffees  must 
have  agreed  to  contribute.  In  analog}- 
to  the  case  of  feoffees,  one  partner  in 
order  to  entitle  himself  to  recover  contri- 
bution of  his  copartner,  is  bound  to  show 
a  contract  independent  of  the  relation  of 
partner  :  —  Tindul,  C.  J.,  5  M.  &  Gran. 
759.  It  is  not  sutHcient  for  him  to  show 
that  the  payment  made  on  account  of  his 
copartners  was  made  by  compulsion  of  law. 
Sadler  v.  Nixon,  5  B.  &  Ad.  936."  — In 
Hunter  v.  Hunt,  1  Com.  Bench,  300, 
plaintiff  and  defendant  respectively  were 
under-lessees,  at  distinct  rents,  of  sepa- 
rate portions  of  premises,  the  whole  of 
wliich  were  held  under  one  original  lease, 
at  an  entire  rent.  Plaintiff,  having  paid 
the  whole  under  a  threat  of  distress, 
brought  an  action  against  defendant  to 
recover  the  proportion  of  rent  due  from 
him,  as  for  money  jiaid  to  his  use :  — 
Ildd,  that  the  action  was  not  maintain- 
able. 

{d)  Contribution  was  at  first  enforced 
only  in  equity,  and  Lord  Eldon  regretted 
(not  without  reason,  in  the  opinion  of 
Baron  Parke,  6  M.  &  W.  168,)  tliat  courts 
of  law  ever  assumed  jurisdiction  of  tlie  sub- 
ject.    It  is  universally  admitted  that  the 

[32] 


duty  of  contribution  originates  in  the  equi- 
table consideration  that  those  who  have 
asssumed  a  common  burden  ought  to  bear 
it  equally ;  from  this  equitable  obligation 
the  law  im]>lics  a  contract,  since  all  who 
have  become  jointly  liable  may  reasonably 
be  considered  as  mutually  contracting 
among  themselves  with  reference  to  the 
duty  in  conscience.  Lord  Eldon,  Cray- 
thorne  v.  Swinburne,  14  Ves.  160,  169, 
(adopting  the  view  taken  by  Romilly 
arguendo) ;  Campbell  v.  Mesier,  4  Johns. 
Ch.  334  ;  Landsdale  v.  Cox,  7  Monroe, 
401 ;  Fletcher  v.  Grover,  11  N.  H.  368; 
Johnson  v.  Johnson,  11  Mass.  359  ;  Chaf- 
fee V.  Jones,  19  Pick.  204;  Ilorbach  v. 
Elder,  18  Penn.  33  ;  Powers  v.  Nash,  37 
Me.  322  ;  Holmes  v.  Weed,  19  Barb.  128  ; 
Yates  V.  Donaldson,  5  Maryl.  389. — 
Assumpit  for  money  paid  is  the  usual 
action  for  enforcing  contribution,  and  its 
proioriety,  before  taken  for  granted,  was 
confirnied  in  Kemp  v.  Finden,  12  M.  & 
W.  421. 

(e)  The  paj^ee  of  a  note,  given  by  the 
defendant's  testator  as  principal,  neglected 
to  present  it  to  the  executor  within  two 
years  after  the  original  grant  of  adminis- 
tration, and  was  by  statute  barred  of  his 
action  against  liim.  Tlie  jilaintitf  who 
signed  the  note  as  surety  was  held  not  to 
be  discharged  by  the  creditor's  neglect  to 
present  his  claim,  and  having  paid  the 
note  was  entitled  to  recover  the  amount 
of  the  executor.  Sibley  v.  McAUaster,  8 
New  Ilamp.  389.  Bachelder  r.  Fisk,  17 
Mass.  464,  was  perhaps  the  earliest  case 
where  the  executor  of  a  deceased  co-debtor 
was  held  liable  at  law  for  contribution. 
The  court  there  met  the  technical  objec- 
tions that  were  raised,  with  the  maxim, 
Ubijus  ibi  remedium.  And  see  McKenna 
V.  George,  2  Rich.  Eq.  15 ;  Riddle  v. 
Bowman,  7  Fost.  236. 

The  surviving  surety  on  a  joint  admin- 
istration bond,  on  account  of  which  he 
was  compelled  to  make  large  payments, 
sought  to  recover  contributoon  from  the 
representatives  of  a  deceased  co-surety  — 
it  was  held,   that  in  the  case  of  a  joint 


CII.    II.] 


OF   JOINT   PARTIES. 


*33 


*The  payment,  to  establish  a  claim  for  contribution,  must 
be  compulsory.  But  this  does  not  mean  that  there  must  be  a 
suit,  but  only  a  fixed  and  positive  obligation.  (/)     For  where 


bond,  the  remcily  at  law  sun'ives  ajrainst 
the  suniving  obligor,  and  is  lost  against 
the  representatives  of  him  who  dies  first ; 
that  where  all  the  obligors  arc  principals, 
equity  will  enforce  contribution  though 
the  remedy  at  law  is  gone,  but  in  case  of 
a  surety  it  will  not  interfere  to  charge  him 
beyond  his  legal  liability  in  the  absence 
of  fraud,  accident,  or  mistake ;  that  al- 
though a  surety  who  has  paid  the  debt 
may  compel  his  living  co-surety  to  con- 
tribute, he  has  no  such  right  either  at  law 
or  in  efjiitli/,  against  the  estate  of  a  deceased 
co-surety,  because  the  liability  of  the 
creditor  was  terminated  by  his  deatii  and 
cannot  be  indirectlv  revived.  Waters  v. 
Riley,  2  H.  &  Gill,  305.  But  see  the  able 
dissenting  opinion  of  Archer,  J. 

(/)  Pitt  V.  Purssord,  8  M.  &  W.  538  ; 
Maydew  v.  Forrester,  5  Taunt.  G15  ;  Da- 
vies"  r.  Humphreys,  6  M.  &  W.  153  ;  Lord 
Kenyon,  Child  v.  Morley,  8  T.  II.  614; 
Fritli  V.  Spracue,  14  Mass.  455  ;  Kussell 
V.  Failor,  1  Ohio  State  Reps.  327. —It 
has  even  been  held  that  a  surety  jiaying 
when  he  had  a  good  defence,  which  de- 
fence, however,  was  not  available  to  the 
principal  if  he  had  been  sued  by  the 
creditor,  mav  recover  of  the  principal ; 
Shaw  V.  Loud,  12  Mass.  461.  Whether 
contriitution  can  be  recovered  for  the  costs 
of  a  suit  sustained  in  resisting  payment  is 
left  in  doui)t  by  the  authorities.  Lord 
Tenterden  ruled  oejainst  contribution  for 
costs  in  Roach  v.  Thompson,  ^I.  &  Malk. 
489  ;  Gillet  v.  Rippon,  id.  406 ;  Knight 
V.  Hughes,  id.  247  ;  in  the  latter  case  in- 
timating that  there  might  be  a  distinction 
between  Ji  case  between  two  sureties  (the 
case  before  him)  and  a  case  of  surety 
against  princi])al.  Rut  in  Kemji  v.  Fin- 
den,  12  M.  &  W.  421,  where  the  plaintilV 
and  defendant  had  executed  as  sureties,  a 
warrant  of  attoniey,  given  as  collateral 
security  for  a  sum  of  money  advanced  on 
mortgage  to  the  principals,  and,  on  default 
being  made  by  the  principals,  judgment 
was  entered  up  on  the  warrant  of  attorney, 
and  execution  issued  against  the  plaiutiil", 
it  was  held  that  he  was  entitled  to  recover 
from  the  defen<lant  as  his  co-surety  a 
moiety  of  the  costs  of  such  execution. 
Parke,  B.,  said :  "  They  were  costs  in- 
curred in  a  ])roceeding  to  recover  a  debt 
for  which,  ou  default  of  the  principals, 


both  the  sureties  were  jointly  liable  ;  and 
the  plaintiff  having  paid  the  whole  costs, 
I  see  no  reason  why  the  defendant  should 
not  fiay  his  proportion." — A  surety  to  a 
note  was  subjected  to  costs  in  consequence 
of  its  non-payment  by  the  principal; 
there  was  an  agreement  in  writing  to  save 
liim  harmless ;  —  held,  that  he  was  entitled 
to  recover  the  costs  so  paid  by  him  in  an. 
action  against  the  principal.  Bonney  v. 
Seely,  2  Wend.  481.  In  Cleveland  v. 
Covington,  3  Strob.  L.  184,  it  was  held 
that  as  a  general  nile  a  jjrincipal  was 
liable  for  costs  incurred  by  the  surety, 
and  was  therefore  incompetent  as  a  witness 
in  an  action  against  him.  Where  a  judg- 
ment, recovered  against  an  insolvent  prin- 
cipal, and  his  two  sureties,  was  i)aid  by 
one  of  them,  held,  thai  he  could  recover 
of  his  co-surety  one  half  of  the  costs. 
Davis  V.  Emerson,  17  IMainc,  64.  And 
in  Fletcher  r.  Jackson,  23  Verm.  593, 
the  right  of  a  co-surety  to  recover  costs 
and  expenses  is  said  to  depend  altogether 
upon  the  question  whether  the  defence 
was  made  under  such  circumstances  as  to 
be  regarded  as  hopeful  and  ])rudent ;  if  so, 
the  expenses  of  defence  nuiy  always  be 
recovered.  —  But  not  if  the  surety  I)e  noti- 
fied that  there  is  no  defence.  Becklcy  v. 
ilunson,  22  Conn.  299.  —  In  Boardman 
V.  Paige,  UN.  Hamp.  431,  wiiere  an 
action  was  commenced  by  the  holder  of  a 
note  against  all  the  co-signers,  and  _/"</'/- 
ment  was  recovered  against  one  oidy,  it 
was  held  that  upon  payment  of  damages 
and  costs  of  the  judgment,  the  party 
against  whom  the  judgment  was  recov- 
ered was  not  entitled  to  contribution  from 
the  other  co-sigtiei-s  in  respect  of  the  costs 
—  the  same  not  being  a  burden  common  to 
all  the  co-signers  of  the  note.  —  It  would 
seem  not  unreasonable  to  conclude,  not- 
withstanding the  niai  prius  decisions  of 
Lord  Tenterdeit,x\\M  where  the  ])arty  from 
whom  contribution  is  sought  was  at  tho 
time  of  the  former  action  directly  liable 
for  the  debt  to  the  creditor,  so  that  if  tho 
latter  had  chosen  he  might  have  been  sued 
by  him,  contribution  may  be  recovered  for 
the  costs  of  the  judgment,  though  not  per- 
ha|)S  for  costs  iucuiTcd  in  resisting  jiay- 
ment  of  the  judgment.  Yet  in  the  lato 
case  of  Henry  r.  Goldney,  15  M.  &  W. 
494,   496,   an   action    ex  contractu   Being 

[33] 


34- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


a  contract  is  broken,  the  surety  may  pay  without  suit  and  hold 
the  principal,  and  a  co-surety  may  pay  and  hold  the  co-sureties 
to  contribution,  (g-) .  And  the  right  to  contribution  arises 
although  the  co-surety  paid  the  debt  after  giving  a  bond  for  it 
without  the  knowledge  of  the  co-sureties.  (//) 

A  defendant  in  an  action  ex  contractu,  where  judgment  was 
rendered  for  the  plaintiff,  upon  satisfying  the  execution,  makes 
out  a  claim  for  contribution  against  other  parties,  by  showing 
either  that  such  parties  were  co-defendants  in  the  action,  or  that 
they  were  jointly  liable  in  fact  for  the  debt  which  was  made  a 
cause  of  action  against  him  alone,  (i)  But  in  the  latter  case 
the  joint  liability  must  not  be  a  liability  as  copartners,  {j ) 

At  law  a  surety  can  recover  from  his  co-surety  only  that"  co- 
surety's aliquot  part,  calculated  upon  the  whole  number,  with- 
out reference  to  the  insolvency  of  others  of  the  co-sureties  ;  {k) 
but  in  equity  it  is  otherwise.  (/) 


brought  against  A,  and  he  pleading  in 
abatement  the  pendency  of  another  action 
for  the  same  cause  against  B,  it  was  con- 
tended that  the  plea  ought  to  he  sustained, 
to  prevent  A  from  heing  twice  vexed  for 
the  same  cause ;  but  Alderson,  B.,  ob- 
served, "  How  is  A  vexed  by  an  action 
being  brought  against  B  ?  ti  cannot  re- 
cover against  A  his  proportion  of  the  costs." 

((/)  It  has  been  lield  in  Kentucky  that 
the  principal  must  be  insolvent  to  render 
a  co-surety  liable  to  contribute  to  another 
who  has  paid  the  debt.  Pearson  v.  Duck- 
ham,  3  Litt.  386  ;  Daniel  v.  Ballard,  2 
Dana,  296.  But  this  is  opposed  to  the 
prevailing  doctrine.  Cowell  i\  Edwards, 
2  B.  &  Pull.  268  ;  Odin  v.  Greenleaf,  3 
New  Hamp.  270. 

{h)  Dunn  v.  Slee,  Holt,  399  ;  where  it 
was  also  held  by  Parke,  J.,  tluit  time  given 
to  one  surety  is  no  bar  to  an  action  after- 
Avards  by  that  surety  against  a  co-surety. 

(/)  In  Murray  v.  Bogert,  14  Jolms. 
318,  it  was  held  that  where  A,  who  claims 
contribution  of  B  and  C,  on  the  ground 
of  having  ])aid  a  judgment,  shows  neither 
that  B  and  C  were  parties  to  the  judg- 
ment, nor  that  the  debt  was  a  joint  one, 
not  arising  out  of  a  partnersliip  transac- 
tion, he  must  be  nonsuited.  The  report- 
er's abstract  seems  incorrect,  in  so  far  as 
it  represents  the  court  as  holding  that  the 
mere  absence  of  proof  that  the  defendants 
were  2>tn'ties  to  the  judgment  was  fatal  to 

[34] 


the  claim  of  contribution.  Such  a  doctrine 
would  be  directly  in  the  face  of  Holmes  v. 
Williamson,  6  M.  &  Scl.  158;  Burnell  v. 
Minot,  4  Moore,  340 ;  Boardman  v.  Paige, 
II  N.  Hamp.  431. 

(j )  Sadler  v.  Nixon,  5  B.  &  Ad.  936 ; 
Edger  v.  Knapp,  5  M.  &  Gran.  758; 
Murray  i\  Bogert,  14  Johns.  318;  Pear- 
son i\  Skelton,  1  M.  &  W.  504,  Mliere 
the  former  action  was  ex  delicto.  But 
where  the  joint  contractors  were,  together 
with  many  others,  partners  in  a  joint- 
stock  company,  of  whicli  they  were  the 
contract  committee  men,  contribution  was 
enforced  between  them  on  account  of  tlie 
joint  lial)ility  incurred  by  them  as  such 
committee.  Boulter  v.  Peplow,  9  Cora. 
Bench,  493. 

(k)  Browne  v.  Lee,  6  B.  &  Cress.  689  ; 
Cowell  V.  Edwards,  2  B.  &  Pull.  268.  — 
Shaw,  C.  J.,  Ciiaffee  v.  Jones,  19  Pick. 
265  ;  Currier  v.  Fellows,  7  Post.  366. 

(/)  Peter  v.  Eich,  1  Ch.  Eep.  34;  Cow- 
ell V.  Edwards,  2  B.  &  Pull.  268.  — And 
in  Vermont  the  laile  of  equity  has  been 
held  to  be  the  rule  of  law  also.  Mills  v. 
Hyde,  19  Verm.  59.  See  also  Henderson 
V.  McDutTec,  5  New  Hamj).  38,  accord. ; 
but  there  the  decision  went,  partly  at 
least,  on  tlie  necessity  of  tlie  case,  there 
being  no  court  to  administer  equitable 
relief.  It  has  been  decided  in  South 
Carolina,  that  co-sureties  who  are  not 
within  the  jurisdiction,  as  well  as  insolvent 


CH.  II.] 


OF  JOINT   PARTIES. 


*35 


*The  contract  of  contribution  is  a  several  contract,  (m)  And 
hence  a  surety  may  release  one  of  his  co-sureties  without  bar- 
ring his  right  of  action  against  the  rest,  although  he  may  not 
be  the  principal  debtor.  (//)  But  if  two  co-sureties  pay  the  debt 
out  of  a  joint  fund,  their  right  of  action  against  the  principal, 
and  as  it  would  seem  against  other  co-sureties,  is  joint,  (o) 

The  contract  on  which  the  assumpsit  is  founded  dates  from 
the  time  ivhen  the  relation  of  co-surety  or  co-obligor  is  entered 
into;  although  the  cause  of  action  does  not  arise  till  the  pay- 
ment. Hence  the  discharge  of  one  of  the  joint  debtors  (by 
whateyer  cause)  from  his  direct  liability  to  the  creditor,  does 
not  relieve  him  in  law,  any  more  than  in  equity,  from  his  obli- 
gation to  indemnify  such  of  the  remaining  joiijt  debtors  as  have 
borne  more  than  their  original  proportion  of  tiie  debt,  [p) 

The  undertaking  which  is  to  serve  as  the  foftndation  of  a 
claim  of  contribution  must  be  joint,  not  separate  and  succes- 
sive. Thus,  the  second  indorser  of  a  promissory  note  is  not 
liable  to  the  first,  though  neither  be  indorser  for  value ;  {q) 
unless  there  be  an  agreement  between  the  indorsers  that,  as 
between  themselves,  they  shall  be  co-sureties,  {qq)  And  a  guar- 
antor cannot  be  compelled  to  contribute  in  aid  of  a  surety,  (r) 


co-sureties,  are  to  be  cxcludcfl  in  the  cal- 
culiUion  of  the  proportion  to  he  contrihutert 
by  those  afj^aiiist  wliom  payment  can  be 
enforccfl.  McKcnna  r.  George,  2  Kieh. 
E(i.  15. 

(m)  Kelbv  v.  Steel,  5  Esp.  194;  Gra- 
ham r.  Hobertson,  2  T.  R.  282  ;  P>raiul  w. 
lioulcott,  3  B.  &  Pull.  235  ;  Birkiey  v. 
Pre.sf.n-ave,  1  East,  220 ;  Parker  v.  Ellis,  2 
Sandf.  K.  Ct.  R.  223. 

(«)  Crowdus  V.  Shelby,  6  J.  J.  Marsh. 
CI  ;  Fletcher  v.  Grover,  ll  Nejv  ILuiip. 
368  ;  Fletcher  v.  Jackson,  23  Verm.  581 . 

(o)  Osborne  v.  Har])er,  5  East,  225 ; 
Bogps  r.  Cnrtin,  10  S.  &  Rawlc,  211; 
Pearson  r.  Parker,  3  New  Ilamp.  3t)G; 
Jewett  V.  Comforth,  3  Grccnl.  107  ;  Fletch- 
er V.  Jackson,  23  Verm.  593.  Owlni, 
Gould  r.  (Jould,  8  Cowen,  108;  but  Kel- 
by  r.  Steel,  5  Esp.  194,  i>n  the  authority 
of  which  this  case  seems  to  have  been  de- 
cided, is  quite  distinguishable  from  Os- 
borne r.  Harper. 

f/>)  Accordingly,  where  the  liability  of 
one  joint  maker  of  a  promissory  note 
was  continued  by  partial  payments  within 


six  years,  but  the  remedy  of  the  holder 
against  the  other  was  barred  by  the  statute 
of  limitations,  the  debtor  who  continued 
liable  could  notwithstanding  recover  con- 
tributicjn  from  the  others  after  paying 
the  del)t.  Peaslee  r.  Breed,  10  New 
Ilamp.  489  ;  and  Boardman  v.  Paige,  11 
New  Ilani]).  431  ;  Howe  r.  Ward,  4 
Green  leaf,  195. 

(7)  McDonald  r.  Magruder,  3  Pet.  470; 
Decreet  c.  Burt,  7  Cush.  551. 

('/'/)  Weston  r.  Cliambcrlain,  7  Cush. 
404;  Hogue  r.  Davis,  8  Grattan,  4.  See 
also  Wcstfall  v.  Pai-sons,  IG  Barb.  645 ; 
Pitkin  V.  Flanagan,  23  Venn.  160. 

(/•)  Eongley  v.  Griggs,  10  Pick.  121. 
In  Harris  c."  Warner,  13  Wend.  400,  it 
was  held  that  the  defendant,  who  was  the 
last  of  four  sureties  for  l\.  in  a  joint  prom- 
issory note,  was  not  bound  to  make  con- 
tribution to  the  plaintilf  who  was  the  lirst 
surety  and  had  jmid  the  debt,  the  defend- 
ant having  (pialilied  his  undertaking  by 
adding  to  his  signature  the  words  "  surety 
for  the  aI)ovc  names." 

[••30] 


36* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


The  right  of  contribution  exists  against  all  who  are  sure- 
ties for  the  same  debt^  although  their  primary  liability  depends 
upon  different  instruments.  Where  two  bonds,  for  example, 
*are  given  for  the  performance  of  the  same  duty,  and  A  and  B 
sign  as  sureties  in  one,  and  C  and  D  in  the  other.  A,  if  he  pay 
the  debt,  may  in  equity  recover  one  fourth  of  the  whole  from 
each  of  the  rest,  [s] 

A  party  acquires  a  right  to  contribution  as  soon  as  he 
pays  more  than  his  share,  but  not  until  then  ;  (/)  and  conse- 
quently the  statute  of  limitations  does  not  begin  to  run  until 
then,  [n) 

The  law  does  not  raise  any  such  implied  promise,  or  right 
to  contribution,  among  wrongdoers,  or  where  the  transaction 
was  unlawful,  [v)  If  money  be  recovered  in  an  action  grounded 
upon  a  tort  it  gives  no  ground  for  contribution,  {iv)  Still,  how- 
ever, contribution  is  sometimes  enforced  where,  he  who  is  to  be 
benefited  by  it  did  not  know  his  act  to  be  illegal,  or  where  it 
was  of  doubtful  character,  [x) 


(s)  Decring  v.  Winchelsea,  2  Bos.  & 
Pul.  270 ;  Maylievv  v.  Crickett,  2  Swans. 
185;  Craythorne  v.  Swinburne,  14  Ves. 
160.  Semhle,  the  same  principle  may  be 
applied  at  law ;  Bromon,  C.  J.,  Norton 
V.  Coons,  3  Denio,  130,  132;  Chaffee  v. 
Jones,  19  Pick.  260,  264;  Enicks  v.  Pow- 
ell, 2  Strob.  Eq.  196. 

(/)  Davies  v.  Humphreys,  6  M.  &  W. 
153  ;  Lord  Eldon,  ex  parte  Giftbrd,  6  Ves. 
808;  Lytle  r.  Pope,  11  B.  Mon.  297. 

(/()  I)avics  V.  Humphreys,  6  ]\I.  &  "W. 
153  ;  Ponder  v.  Carter,  12  Ire.  Law,  242. 

(v)  Pitcher  v.  Bailey,  8  East,  171; 
Booth  V.  Hodgson,  6  T."R.  405. 

(w)  Merryweathcr  v.  Nixan,  8  T.  R. 
186;  Fare  brother  v.  Ansley,  1  Camp. 
343;  Wilson  v.  Milner,  2  Camp.  452; 
Thweatt  v.  Jones,  1  Rand.  328. 

(x)  Bctts  V.  Gibbins,  2  Ad.  &  El.  57,  4 
N.  &  M.  64.  Tiiere  the  defendants  hav- 
ing sold  ten  casks  of  goods  and  sent  thera 
to  the  plaintiffs  to  deliver  to  buyer,  sub- 
secjucntly  ordered  the  plaintiffs  to  deliver 
a  portion  of  them  to  another  person,  which 
order  they  obeyed.  It  was  held,  that  a 
promise  to  indemnify  the  plaintiffs  might 
be  implied  from  the  facts,  on  which  they 
could  recover  for  the  injury  sustained  in 
consequence  of  fulfilling  the  order,  although 

[36] 


they  had  no  right  to  detain  the  goods  or 
change  their  destination  —  the  general  rule 
that  between  wrongdoers  there  is  neither 
indemnity  nor  contribution  not  applying 
where  the  act  is  not  clearly  illegal  in  itself 
and  is  done  bona  fide. — In  Adamson  v. 
Jarvis,  4  Bing.  66,  72,  Best,  C.  J.,  said, 
"  It  was  certainly  decided  in  Merryweather 
V.  Nixan,  that  one  wrongdoer  could  not 
sue  another  for  contribution  ;  Lord  Kemjon 
however,  said,  'that  the  decision  would 
not  affect  cases  of  indemnity,  where  one 
man  employed  another  to  do  acts,  not  un- 
lawful lin  themselves,  for  the  purpose  of 
asserting  a  right.  This  is  the  only  de- 
cided case  on  the  subject  that  is  inteUigihle. 
There  is  a  case  of  Walton  v.  Hanbury  and 
others  (2  Vern.  592,)  but  it  is  so  imper- 
fectly stated,  that  it  is  impossible  to  get 
at  the  principle  of  the  judgment.  The 
case  of  Philips  v.  Biggs,  (Hard.  164,) 
was  never  decided;  but  the  Court  of 
Chancery  seemed  to  consider  the  case  of 
two  sheriffs  of  Middlesex,  where  one  had 
paid  the  damages  in  an  action  fijr  an 
escape,  and  sued  the  other  for  contribution  as 
like  the  case  of  two  joint  obligors.  Prom  the 
inclination  of  the  court  in  this  last  case, 
and  from  the  concluding  part  of  Lord 
Kcnyon's  judgment   in   Merryweather  v. 


en.  III.] 


OF   JOINT  PARTIES. 


»37 


*The  imjilied  promise  and  the  right  to  contribution  resting 
upon  it  may  be  controlled  by  circumstances  or  evidence  show- 
ing a  different  understanding  between  the  parties ;  thus,  a 
surety  cannot  exact  contribution  of  one  who  became  co-surety 
at  his  request.  (//) 

The  commercial  law  of  France,  and  of  continental  Europe 
generally,  admits  the  right  to  contribution,  and  regulates  it 
much  as  the  law  of  England  and  this  country,  (z)  The  civil 
law  wholly  rejects  it.  (a)  But  by  a  decree  of  the  Emperor 
Hadrian,  a  co-surety  being  sued,  might  require  the  plaintiff  to 
proceed  against  all  liable  jointly  with  him.  He  could  not 
therefore  be  compelled  to  pay  the  whole  unless  through  his 
own  neglect,  (b) 


Nixan,  and  from  reason,  justice,  and 
sound  policy,  the  rule  that  wrongdoers 
cannot  have  redress  or  contribution  against 
eadi  otlier,  is  confined  to  cases  wliere  the 
person  seeking  redress  must  he  presumed 
to  have  known  that  he  was  doing  an  un- 
lawful act."  —  Woolcy  v.  Batte,  2  C.  & 
Payne,  417;  a  party  having  recovered 
damages  in  case  against  one  of  two  joint 
coach  proprietors  for  an  injury  sustained 
l)y  the  negligence  of  their  servants  ;  lahl, 
that  such  proprietor  (he  proving  that  he 
was  not  personally  present  when  the  acci- 
dent happened)  might  maintain  an  action 
against  his  co-proprietor  for  contribution. 
Sec  also  Ives  v.  Jones,  3  Ire.  L.  5-38. 
But  there  can  he  no  recovery  in  such  case 
if  the  two  ])roprietors  are  inntncrs.  Pear- 
son V.  Skelton,  1  M.  &  W.  504.  Sec 
Thweatt  v.  Jones,  1  Rand.  328. 

VOL.  I.  4 


(i/)  Turner  v.  Davies,  2  Esp.  478 ;  By- 
crs  V.  McClanahan,  6  G.  &  Johns.  2.')6 ; 
Daniel  v.  Ballard,  2  Dana,  296 ;  Tavlor 
v.  Savage,  12  Mass.  98,  103.  And  see 
Thomas  v.  Cook,  8  B.  &  Cress.  728; 
Harris  v.  Warner,  13  Wend.  400  ;  Rohi- 
son  V.  Lyic,  10  Barb.  .'312.  But  such  an 
agreement  cannot  be  shown  by  parol  evi- 
dence when  the  giuiranteed  obligation  is 
in  writing.     Norton  v.  Coons,  2  Scld.  33. 

(z)  Code  Civ.  Art.  2033;  1  Pothier  on 
Obligations,  bv  Evans,  291. 

{<!)  Dig.  46,'  1,  39. 

(/<)  Inst.  3,  21,  4.  If  the  surety,  on 
paying  the  debt,  took  the  jirecaution  to 
obtain  a  subrogation,  he  might  exercise 
the  actions  of  the  creditor  against  his  co- 
sureties;  1  Pothier  on  Obi.  bv  Evans, 
291 ;  Cod.  8,  41,  11  ;  Dig.  46,  l",  39. 

[37] 


38  THE  LAW  OF  CONTRACTS.  [bOOK  I. 


CHAPTER   III. 


AGENTS. 


Sect.  I. —  Of  Agency  in   General. 

The  law  of  agency  is  now  of  very  great  importance.  Such 
is  the  complexity  of  human  affairs  in  civilized  society,  that  very 
few  persons  are  able  to  transact  all  their  business,  supply  all 
their  wants,  and  accomplish  all  their  purposes,  without  some- 
times employing  another  person  to  represent  them,  and  act  for 
them,  and  in  their  stead.  Such  person  becomes  their  agent, 
and  the  person  employing  an  agent  is  his  principal. 

There  are  two  principles  in  relation  to  the  law  of  agency,  on 
one  of  which  it  is  founded,  while  the  other  measures  the  re- 
sponsibility of  the  principal  for  the  acts  of  an  agent.  The  first 
of  these  is,  that  the  agent  is  but  the  instrument  of  the  principal, 
who  acts  by  him  ;  and  a  principal  assumes  the  relations,  ac- 
quires the  rights,  and  incurs  the  obligations  which  are  the 
proper  results  of  his  acts,  equally,  whether  he  does  these  me- 
diately, or  directly  ;  whether  he  uses  an  unconscious  and  mate- 
rial instrument,  or  a  living  and  intelligent  instrument ;  whether 
he  signs  his  name  by  a  pen  which  he  takes  from  the  table,  or 
by  a  man  whom  he  requests  to  sign  his  name  for  him.  In 
either  case,  the  thing  done  is  the  act  of  the  principal ;  and,  to  a 
considerable  extent,  the  law  identifies  the  agent  with  the  prin- 
cipal, although  for  some  purposes,  and  in  some  respects,  the 
agent  incurs  his  own  share  of  responsibility,  or  acquires  his  own 
rights,  by  the  act  which  he  performs  as  the  act  of  another. 
The  second  of  these  principles  is,  that,  as  between  the  princi- 
pal and  a  third  party  who  has  supposed  himself  to  deal  with  a 
principal  by  means  of  one  purporting  to  be  his  agent,  the  prin- 
[38] 


CH.  III.]  AGENTS.  *39 

cipal  is  responsible  for  and  is  bound  by  the  acts  of  his  agent, 
not  only  when  he  has  actually  created  this  agency,  but  when 
he  has,  by  words  or  acts,  *distinctly  authorized  the  third  party 
to  believe  the  person  to  be  his  agent.  If  he  has  justified  the 
belief  of  the  third  party,  that  this  person  had  from  him  suffi- 
cient authority  to  do  as  his  agent  that  precise  thing,  it  is  no 
answer  on  his  part,  to  say  that  the  agent  had  no  authority,  or 
one  which  did  not  reach  so  far,  and  that  it  was  a  mistake  on 
the  part  of  the  third  party.  It  may  have  been  his  mistake,  but 
the  question  then  is,  whether  the  principal  led  this  third  party 
into  the  mistake.  And  in  deciding  this  question,  all  the  cir- 
cumsttmces  of  the  transaction,  and  especially  the  customary 
usages  in  relation  to  such  transactions,  come  into  consider- 
ation. 

This  principle  applies  to  the  important  distinction  between  a 
general  agent  and  a  particular  agent,  (c)  A  general  agent  is 
one  authorized  to  transact  all  his  principal's  business,  or  all  his 
business  of  some  particular  kind.  A  particular  agent  is  one 
authorized  to  do  one  or  two  special  things.  But  it  is  not  al- 
ways easy  to  find  a  precise  rule  which  determines  with  certainty 
between  these  two  kinds  of  agency.  A  manufacturing  corpo- 
ration may  authorize  A  to  purchase  all  their  cotton,  and  he  is 
then  their  general  agent  for  this  especial  purpose,  or  to  pur- 
chase all  the  cotton  they  may  have  occasion  to  buy  in  New 


(c)  Sec  Jacques  v.  Todd,  3  "Wend.  83  ;  except  for  those.     In  the  case  of  a  partic- 

Andcrson   v.  Coonley,    21    "Wend.    279;  ular  a^ent,  tlie  scope  of  authority  is  meas- 

Savagc   V.    Kix,    9    New    Ilain]).    203 ;  urcd  l)y  tiic  express  directions  he  has  rc- 

"Whitehead  v.  Tuckett,  15  East,  400.   Tlie  ceived  ;  in  the  ca.sc  of  a  <reneral  afrcrit  the 

term  Af/euci/  seems  to  iniply  two    quite  hnw  permits  usaj^e  to  enter  in  and  enlarge 

distinct  tiiinjrs,  namely,  a  contract  hetwcen  the  liability  of  the  ]irincipal.     This  usage, 

principal  and  agent,  and  the  legal  means  however,  is  not  a  uniform,  unvarying  rule; 

by  which  the  ju'incipal  is  made  without  in  other  words  there  is  no  common  scope 

his  direct  partici[)ation,  a  jifirti/  to  a  con-  of  authority   predicalile  of  eveiT  general 

tract  with  a  third  person.     No  advantage,  agent.     To   say  of  a  ceitain   one   lie  is 

but  only  confusion,  seems  to  result  from  general  agent  is  not  enough  to  describe 

blending  these  two  things.     If,  in  consid-  his  ]iowers,  or  to  determine  the  extent  of 

ering  agency  in  the  latter  asjiect,  the  do-  his  principal's   liability  ;  it  is  next  to  be 

mestic  contract  lietwecn  agent  and  prin-  ascertained   for  mIku   particular  business 

cipal  could  be  exchulcd  from  the  mind,  he  is  thus  geneial  agent.     This  done,  the 

and  reserved  for  separate  observation,  it  agency  is  brought  within  a  class,  and  the 

miglit  conveniently  be  laid  down   as   the  (pndities  attach  to  it  which  the  law,  using 

rule  of  law    that   the  jirincipa!    is  in   all  tlie  light  of  mercantile  custom,  atlixes  to 

cases  bound  for  acts  of  the  agent  done  the  class  at  large. 
within  the  scope  of  his  authority,  and  never 

[B9] 


40* 


THE  LAAV   OF  CONTRACTS. 


[book  I. 


Orleans,  and  then  he  may  be  called  then-  general  agent  for  this 
especial  purpose  in  that  place.  Or  to  purchase  the  cargoes 
that  shall  come  from  such  a  plantation,  or  shall  arrive  in  such 
a  ship  or  ships,  or  five  hundred  bales  of  *cotton,  and  then  he  is 
their  particular  agent  for  this  particular  transaction. 

The  importance  of  the  distinction  lies  in  the  rule,  that  if  a 
particular  agent  exceed  his  authority,  the  principal  is  not 
bound ;  (d)   but  if  a   general  agent   exceed  his   authority  the 


(d)  Flemyng  v.  Hector,  2  M.  &  W. 
178;  Todd  v.  Emly,  7  M.  &  W.  427; 
8  id.  505 ;  East  India  Co.  v.  Hensley,  1 
Esp.  Ill  ;  Woodin  v.  Burford,  2  C.  & 
Mee.  391  ;  Jordan  v.  Norton,  4  M.  &  W. 
155;  Sykes  v.  Giles,  5  M.  &  W.  645; 
Waters  v.  Brogden,  1  Y.  &  Jcr.  457; 
Daniel  v.  Adams,  Ambler,  495.  And 
see  Eeaney  v.  Culbcrtson,  21  Penn.  St. 
Rep.  507. — But  there  is  a  material  dis- 
tinction between  authority  and  instructions 
uncommunicated,  and  not  intended  to  be 
communicated  to  the  third  party  dealing 
with  the  agent.  Such  instructions  qualify 
the  liability  of  the  principal  neither  in  the 
case  of  a  general  agency  nor  of  a  particu- 
lar agency.  The  sound  rule  of  law  is  set 
forth  by  Parker,  C.  J.,  giving  the  judg- 
ment of  the  court  in  Hatch  v.  Taylor,  10 
N.  H.  538 :  "  It  is,  we  think,  apparent 
enough,  that  all  which  may  l)e  said  to  a 
special  agent,  about  the  mode  in  which 
his  agency  is  to  be  executed,  even  if  said 
at  the  time  that  the  authority  is  conferred, 
or  the  agency  constituted,  cannot  be  re- 
garded as  part  of  the  authority  itself,  or 
as  a  qualification  or  limitation  upon  it. 
There  may  be,  at  all  times,  upon  the  con- 
stitution of  a  s]iccial  agency,  and  there 
often  is,  not  only  an  authority  given  to 
the  agent,  in  virtue  of  which  lie  is  to  do 
the  act  proposed,  but  also  certain  com- 
munications, addressed  to  the  private  ear 
of  the  agent,  although  they  relate  to  the 
manner  in  which  the  authoi-ity  is  to  be 
executed,  and  are  intended  as  a  guide 
to  direct  its  execution.  These  communi- 
cations may,  to  a  certain  extent,  be  in- 
tended to  limit  the  action  of  the  agent ; 
that  is,  the  principal  intends  and  expects 
that  they  shall  be  regarded  and  adhered 
to,  in  the  execution  of  the  agency ;  and 
should  the  agent  depart  from  them,  he 
would  violate  the  instructions  given  him 
by  the  principal,  at  the  time  when  he  was 
constituted  agent,  and  execute  the  act  he 
was   expected   to   perform   in   a   case  iu 

[40] 


which  the  principal  did  not  intend  that  it 
should  be  done.  And  yet,  in  such  case 
he  may  have  acted  entirely  within  the 
scope  of  the  autliority  given  him,  and  the 
principal  be  bound  by  his  acts.  This 
could  not  be  so,  if  those  communications 
were  limitations  upon  the  authority  of  the 
agent.  It  is  only  because  they  arc  not  to 
be  regarded  as  part  of  the  authority  given, 
or  a  limitation  upon  that  authority,  that 
the  act  of  the  agent  is  valid,  although 
done  in  violation  of  them  ;  and  the  matter 
depends  upon  the  character  of  the  com- 
munications thus  made  by  the  principal, 
and  disregarded  by  the  agent.  Thus, 
where  one  person  employs  another  to  sell 
a  horse,  and  instructs  him  to  sell  him  for 
$100,  if  no  more  can  be  obtained,  but  to 
get  the  best  price  he  can,  and  not  to  sell 
him  for  less  than  that  sum,  and  not  to 
state  how  low  he  is  authorized  to  sell,  be- 
cause that  will  prevent  him  from  obtain- 
ing more.  Such  a  private  instruction 
can  with  no  propriety  be  deemed  a  limi- 
tation upon  his  authority  to  sell,  because . 
it  is  a  secret  matter  betweeia  tlie  principal 
and  agent,  which  any  person  proposing  to 
purchase  is  not  to  know,  at  least  until  the 
bargain  is  completed.  And  if  no  special 
injunction  of  secrecy  was  made,  the  result 
would  be  the  same  ;  for  from  the  nature 
of  the  case,  such  an  instruction,  so  fur  as 
regards  the  minimum  price,  must  be  in- 
tended as  a  private  matter  between  the 
principal  and  agent,  not  to  be  commimi- 
cated  to  the  persons  to  whom  he  proposed 
to  make  a  sale,  from  its  obvious  tendency 
to  defeat  the  attempt  to  obtain  a  greater 
sum,  which  was  the  special  duty  of  the 
agent.  It  will  not  do  to  say  that  the 
agent  was  not  authorized  to  sell,  unless 
he  could  obtain  that  price.  That  is  the 
very  question,  wliether  such  a  private  in- 
struction   limits    the   authority    to    sell." 

545-547 "No   man  is  at  liberty 

to  send  another  into  the  market,  to  buy 
or  sell  for  him,  as  his  agent,  with  secret 


CH.   III.] 


AGENTS. 


41 


principal  is  bound,  (e)  provided  the  agent  acted  therein  within 
the  ordinary  and  usual  scope  of  the  business  he  was  author- 
ized to  transact,  and  the  party  dealing  with  the  agent  did  not 
know  that  he  exceeded  his  authority.  (/)     The  rule  being,  as 


instructions  as  to  the  manner  in  wliich  he 
shall  execute  his  agency,  which  are  not  to 
he  communicated  to  those  with  whom  he 
is  to  deal ;  and  then,  when  his  agent  has 
deviated  from  those  insti'uctions,  to  say 
that  he  was  a  special  agent,  —  that  the 
instructions  were  limitations  upon  his  au- 
thority, —  and  that  those  with  whom  he 
dealt,  in  the  matter  of  his  agency,  acted 
at  tlicir  peril,  hecause  they  were  bound  to 
inquire,  where  inquirj'  \\x)uld  have  been 
fruitless,  and  to  ascertain  tliat,  of  which 
they  xvere  not  to  have  knowledge.  It 
would  rcnder  dealing  with  a  special  agent 
a  matter  of  great  hazard.  If  the  princi- 
pal deemed  the  bargain  a  good  one,  the 
secret  orders  would  continue  scaled  ;  but 
if  his  opinion  was  otherwise,  the  injunc- 
tion of  secrecy  would  be  removed,  and 
tlic  transaction  avoided,  leaving  the  ])aity 
to  such  remedy  as  he  might  enforce 
against  the  agent.  From  this  reasoning, 
we  deduce  the  general  principle,  that 
where  private  instructions  are  given  to  a 
special  agent,  respecting  the  mode  and 
manner  of  executing  his  agency,  intended 
to  be  kept  secret,  and  not  comnmnicated 
to  those  with  whom  he  may  deal,  such 
instructions  are  not  to  be  regarded  as 
limitations  upon  his  authority  ;  and  not- 
witlistanding  he  disregards  them,  his  act, 
if  otiicnvise  within  the  scope  of  liis  agency, 
will  be  valid,  and  bind  his  emplover." 
548,  549. 

{f)  Duke  of  Beaufort  v.  Nceld,  12  CI. 
&  Fin.  248,  27.3  ;  Xickson  v.  Brohan,  10 
Mod.  109  ;  Monk  v.  Clayton,  MoUov,  B. 
2,  eh.  10,  §  27. 

( /)  Forman  i\  Walker,  4  Louis.  Ann. 
409.  The  authority  given  to  the  agent 
must  in  all  cases  lie  strirth/  ])ui-siied. 
Kobertson  v.  Ketchum,  1 1  Barb.  G52. 
The  excej)tion,  extending  the  principal's 
liability  in  favor  of  third  parties,  is  only 
made  where  such  third  parties  arc  ignt>- 
rant  that  restrictions  have  been  im|K)scd 
u]ion  the  agent.  In  Attwood  r.  Mun- 
nings,  7  B.  &  Cress.  283,  IJ(i>/l<;/,J.,  said  : 
"  This  was  an  action  upon  an  accept- 
ance importing  to  be  by  ])r()curation,  and 
therefore,  any  person  taking  the  bill 
woubl  know  tliat  he  bad  not  the  security 
of   the  acceptor's   signaturc,   but  of  the 

4* 


party  professing  to  act  in  pursuance  of  an 
autliority  from  him.  A  pei-son  taking 
such  a  bill,  ought  to  exercfsc  due  caution, 
for  he  must  take  it  upon  the  credit  of  the 
party  who  assumes  the  authority  to  ac- 
cept, and  it  would  Ikj  only  reasonable 
pnidence  to  require  tlie  jjroduction  of 
that  authority."  The  authority  in  that 
case  was  contained  iu  two  powers  of  at- 
torney, and  it  was  decided  that,  taking 
the  proper  constniction  of  them,  the 
agent  liad  exceeded  his  authority,  and  so 
the  principal  was  not  bound.  This  case 
is  confirmed  bv  "Withingtou  v.  Ilemng, 
5  Bing.  442.  Goods  were  shipped  on 
board  of  i)laintiff's  ship,  and  by  the  bills 
of  lading,  which  were  indorsed  to  the  de- 
fendants, were  to  be  delivered  on  poipnent 
of  J'i'eifjhL  The  bills  were  indorsed  by 
the  defendants  to  their  factors,  to  whom 
the  goods  were  delivered,  and  the  freight 
charged.  Assumpsit  was  brought  against 
the  defendants  on  the  bankruptcy  of  the 
factors,  but  was  not  sustained  on  the 
ground  that  authority  to  receive  the 
goods  was  given  ouly  on  immediate  pay- 
ment of  the  freight.     Tobin  r.  Crawford, 

5  M.  &  W.  235.  And  sec  Hogg  v. 
Snaith,  1  Taunt.  347  ;  Aecy  i\  Fernie, 
7  M.  &  W.  157;  Esdailc  i-.  La  Nauzc, 
1  Y.  &  Coll.  394  ;  Maanss  v.  Hender- 
son, 1  E:tst,  335  ;  MuiTav  v.  East  India 
Co.  5  B.  &  Aid.  204  ;  Gardner  v.  Baillic, 

6  T.  R.  591  ;  with  wliich  compare  How- 
ard V.  Baillie,  2  II.  Bl.  CIS  ;  Staiiiback  i-. 
Bank  of  Virginia,  11  Grattan,  2G9  ;  Same 
r.  Bead,  id.  281.  Tiie  mling  of  Jkath, 
J.,  in  Hicks  r.  Ilankins,  4  Esp.  114, 
seems  to  admit  of  question.  For  instance, 
where  the  authority  of  a  general  agent 
has  been  circumscribed,  see  Odiorne  v. 
Maxcy,  13  Mass.  178;  White  v.  West- 
port  Cotton  jMan.  Co.  1  Tick.  215;  Sa- 
lem Bank  r.  Gloucester  Bank,  17  Mass. 
1  ;  Wvman  v.  Ilallowell  iSc  Augusta 
Bank, 'l4  .AFass.  58;  Kerns  v.  Piper,  4 
Watts,  222 ;  Tcitv  r.  Fargo,  10  Johns. 
114;  Keynolds  i\  Kowley,  4  Louis.  Ann. 
409.  Except  tlie  master  of  a  vessel  and 
an  acceptor  for  lionor,  no  agent  can  lior- 
row  moiify  on  his  jirincipal's  account 
without  special  authority.  Ilawtayne  v. 
Bourne,  7  M.  &  W.  595. 

[41] 


42*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

to  the  public,  that  the  authority  of  a  general  agent  may  be  re- 
garded by  them  as  measured  by  the  usual  extent  of  his  general 
employment,  (g)  The  obvious  reason  for  this  is,  that  the  pub- 
lic may  not  be  deceived  to  its  injury  by  previous  acts  *which 
the  agent  was  fully  authorized  to  do.  By  such  authority  the 
principal  does  as  it  were  proclaim  and  publicly  declare  him  to 
be  his  agent,  and  must  abide  the  responsibility  of  so  doing.  It 
would  not  be  right  for  the  principal  to  say  to  one  who  dealt 
Avith  his  general  agent ;  you  knew  that  he  was  my  general 
agent,  for  I  authorized  you  and  everybody  else  to  believe  this, 
but  in  this  particular  instance  I  had  revoked  or  limited  the 
authority,  and  the  revocation  or  limitation  shall  affect  you 
although  you  did  not  know  it.  But  a  principal  may  well  say 
to  one  who  dealt  with  an  agent  for  a  particular  purpose,  it  was 
your  business  first  to  ascertain  that  he  was  my  agent,  and  then 
to  ascertain  for  yourself  the  character  and  extent  of  his  agency. 

Where  the  agency  is  implied  from  general  employment,  it 
may  survive  this  employment,  and  will  be  still  implied  in  favor 
•of  those  who  knew  this  general  employment,  but  have  not  had 
notice  of  the  cessation  of  the  employment,  and  cannot  be  sup- 
posed to  have  knowledge  thereof,  (h)  Hence  the  common  and 
■very  proper  practice  of  giving  notice  by  public  advertisement 
Avhen  such  an  agency,  is  revoked. 

In  order  to  judge  correctly  of  the  extent  of  an  agent's  au- 
thority, the  distinction  must  be  noticed  between  those  acts  which 
are  within  his  authoi'ity,  and  those  which  are  only  within  an 
appearance  of  authority^  for  which  the  principal  is  not  responsi- 
ble ;  for  a  principal  is  responsible  only  for  that  appearance  of 
authority  which  is  caused  by  himself,  and  not  for  that  appear- 


(jf)  Pickering  v.   Busk,  15   East,   38;  ployed  the  plaintiff  generally  to  attend 

Whitehead  v.    Tuckett,     15    East,    400.  the  boy  so  long  as  he  might  need  medi- 

But  if  an  injury  is  to  result  to  one  man  cal  aid,  and  the  plaintiff'  attended  upon 

from  the  omission  or  neglect  of  an  agent  the  boy  on  the  credit  of  defendants,  held, 

of  another,  the  principal    must  be  held  that  defendants  were  liable  to  the  plaintiff 

liable.      And   when   the  defendants  sent  for  his   sei-vices   in    attending  the    boy. 

their  agent  to  employ  the  plaintiff',  who  Barber?;.  Britton  &  Hall,  26  Vt.  112. 

was  a  physician,  to  visit  a  boy  who  had         (h)  v.  Harrison,  12  Mod.  346; 

been  injured  while   in  their  service,    di-  Monk  v.  Clayton,  Molloy,  B.  2,  Ch.   10, 

recting  the  agent  to  tell  the  plaintiff"  that  §  27,  cited  per  cur.   10  Mod.   110;  Em- 

they  would  pay  him  for  his  first  visit,  and  mett  v.  Norton,  8  C  &  Payne,  506. 
■the  agent  neglected  so  to   do,  and  em- 

[42] 


CII.  III.]  AGENTS.  -42 

ance  of  conformity  to  the  authority  which  is  caused  only  by  the 
agent.    An  agent's  authority  is  that  which  is  given  by  the  terms 
of  his  appointment,  notwithstanding  secret  instructions  ;  or  that 
with  which  he  is  clothed  by  the  character  in  which  ht  is  held  out 
to  the  world,  although  not  strictly  within  his  commission.   What- 
ever is   done  under  an   authority  thus   manifested,  is  actually 
within  the  authority,  and  the  principal  is  bound  for  that  reason  ; 
for  he  is  bound  equally  by  the  authority  which  he  actually  gives, 
and  by  that  which  by  his  own  acts  he  appears  to  give.     But  it 
is  obvious  that  an  agent  may  clothe  his  act  with  all  the  indicia 
of  authority,  and  yet  the  act  itself  may  not  be  within  either  the 
real  or  apparent  authority.     The  appearance  of  the  authority  is 
one  thing  ;  and  for  that  the  principal  is  responsible.  The  appear- 
ance of  the  act  is  another ;  and  for  that  it  seems  the  agent 
alone  is  responsible.     It  is  a  fundamental  proposition,  that  one 
man  can  be  bound  only  by  the  authorized  acts  of  another.     He 
cannot  be  charged  because  another  holds  a  commission  from 
him,  and  falsely  asserts  that  his  acts  are  within  it.  (////)      This 
distinction  has  been   w^ell   illustrated  by  recent   adjudications. 
Thus  a  master  of  a  ship  is  the  general  agent  of  the  owners  to 
perform  all  things  relating  to  the  usual  employment  of  his  ship, 
and,  among  other  things,  to  sign  bills  of  lading  for  goods  put  on 
boards  and  acknowledge  the  nature,  quality,  and  condition  of  the 
goods.     But  if  he  signs  a  bill  of  lading  for  goods  which  have 
never  been  shipped,  he  exceeds  his  authority ;  and  although  the 
act,  judged  by  its  appearance  and  the  representation  of  the 
agent,  is   strictly  within  the  authority,  yet  the  principal  is  not 
bound,  {ii)     So,  if  the  master  signs  a  bill  of  lading  for  a  greater 
quantity  of  goods  than  those  on  board,  the  same  princi|)le  ap- 
plies, {jj)      And  where  the  servant  of  a  wharfinger  fraudulently 
signed  a  receij^t,  purporting  to  be  an  acknowledgment  that  cer- 
tain wheat  had  been  delivered  at  his  emj)loyer's  wharf,  no  such 
wheat  having  in  fact  been  delivered,  and  thereby  wilfully  in- 
duced one  C  to  pay  the  price  thereof  to  the  pretended  vendor ; 
it  was  held  that  the  wharfinger  was  not  liable,  the  servant  hav- 

(hh)  Per   Cot)is(ock,  J.,    in   Mechanics'         (//)  Grant  v.  Nonvav,  10  C.  B.  665. 
Bank  v.  New  York  &  New  Haven  R.  R.  Co.         ( jj)  Ilnlibcrsty  v.  Ward,  8  Kxch.  330. 
Now  York  Court  of  Appeals,  June,  1856. 

[43] 


42-  THE    LAW   OF   CONTRACTS.  [BOOK  I. 

ing  authority  only  to  give  receipts  for  goods  which  had  in  fact 
been  delivered  at  the  wharf,  (kk)  Again,  where  a  railroad  cor- 
poration appointed  an  agent  to  issue  certificates  for  stock,  upon 
a  transfer  on  the  company's  books  by  a  previous  owner,  and  a 
surrender  of  that  owner's  certificate  ;  and  the  agent  fraudulently 
issued  certificates  for  his  own  benefit,  without  a  compliance 
with  either  of  the  above  conditions,  his  acts  were  held  to  be 
beyond  the  scope  of  his  authority,  and  his  principals  not 
bound.  (//)  But  care  must  be  taken  not  to  extend  this  principle 
too  far.  Thus,  an  agent  may  be  authorized  to  give  notes  for 
his  principal  in  order  to  raise  money  to  be  used  in  the  business 
of  the  latter.  A  third  person  may  inspect  the  power,  advance 
the  money  in  good  faith,  and  the  agent  appropriate  it  to  his  own 
use ;  and  this  the  agent  may  have  intended  at  the  time.  In 
such  a  case,  the  principal  would  be  responsible,  not  because  the 
act  of  the  agent  appeared  to  be  within  the  authority,  but  because 
the  power  actually  included  the  transaction.  A  power  given  to 
an  agent  to  borrow  money,  upon  notes  or  otherwise,  implies 
that  the  money  may  be  paid  to  him,  and  so  the  whole  trans- 
action is  strictly  and  literally  authorized.  The  misappropriation 
of  the  proceeds  by  the  agent  is  a  mere  breach  of  trust,  relating 
to  money  in  his  hands,  and  upon  the  principles  of  trust  his  in- 
tention to  misappropriate  would  not  affect  an  innocent  party. 
But  suppose  the  power  to  give  the  note  is  on  its  face  condi- 
tional. It  then  has  no  existence  until  the  condition  has  been 
fulfilled.  And  if  one  advances  money  to  the  agent,  and  it  turns 
out  that  the  conditions  had  not  occurred  on  which  the  exercise 
of  the  power  depended,  then  he  was  trusting  to  the  representa- 
tion of  the  ag-ent,  and  must  look  to  him  alone.  As  the  principal 
never  authorized  the  transaction  at  all,  he  is  bound  neither  by 
the  contract  nor  by  the  representation,  {mm) 

(H-)  Coleman  v.  Riches,  16  C.  B.  104.  Bank  v.  N.  Y.  &  N.  11.  R.  B.  Co.,  supra. 

(11)  Mechanics'  Bank  v.  N.  Y.  &  N.  H.  Sec  North  River  Bank  v.  Aymar,  3  Hill, 

R.  R.  Co.,  supra.  262.   ' 
(mm)  Per   Comstoclc,  J.,  in  Mechanics' 

[44] 


CH.   III.] 


AGENTS. 


*43 


^  .SECTION    II. 

IN    WHAT   MANNER  AUTHORITY   MAY   BE   GIVEN   TO   AN   AGENT. 

All  agent,  generally,  may  be  appointed  by  parol,  and  so 
authorized  to  do  any  thing  which  does  not  require  him  to  exe- 
cute a  deed  for  his  principal,  (i)  He  may  be  authorized  by 
parol  to  make  contracts  in  writing,  and  to  make  those  which 
are  not  binding  upon  his  principal,  unless  in  writing  signed  by 
him.O) 

*An  authority  is  presumed  or  raised  by  implication  of  law,  on 
the  ground  that  the  principal  has  justified  the  belief  that  he  has 
given  such  authority,  in  cases  where  he  has  employed  a  person 
in  his  regular  employment;  (JJ)  as  where  one  sends  goods  to 
an  auctioneer,  or  to  a  common  repository  room  for  sale,  the 
bailee  has  an  implied  authority  to  sell,  [k)  And  such  presump- 
tions frequently ifirise  in  the  case  of  a  wife  ;  (/)  or  of  a  domestic 
servant;  (m)  or  of  a  son  who  has  been  permitted  for  a  consider- 


((■)  2  Kent's  Comm.  612.  The  rcocipt 
of  an  authorized  ajrentis  the  receipt  of  the 
principal.  Mackersy  v.  liainsays,  9  Ci. 
&  Fin.  818,  850.  —  A  tender  made  to  an 
authorized  agent  is  as  if  made  ti>  his  j)rin- 
ciital.  Moffat  v.  Parscjns,  3  Taunt.  307. 
—  With  regard  to  tiic  cxecntion  of  con- 
tracts under  seal,  the  rule  of  the  common 
law  is  adhered  to  with  strictness.  Gordon 
V.  Bulkeley,  14  S.  &  Hawle,  331.  And 
in  Hanorgec  v.  Ilovey,  5  Mass.  11,  it  was 
Jteld,  (Si'iJ-ell,  J.,  dissenting,)  that  a  sealed 
instrument  executed  in  the  name  of  the 
principal  hy  an  agent,  not  autliorized 
under  sciU,  could  not  be  admitted  in  evi- 
dence iu  an  action  of  assumpsit  against  the 
])rinci])al.  IJut  sec  contra,  Coo|)cr  v. 
Rankin,  5  Binney,  613,  and  page  47,  infra, 
and  notes  (ww),  {icx). 

( /)  Shaw  r.  Nudd,  8  Pick.  9;  Ewing 
I'.  Tees,  1  Binn.  450;  Clinen  r.  Cooke,  1 
S.  &  Lef.  22  ;  Coles  i:  Trecothick,  9  Ves. 
234,  250.  And  a  parol  nitijimlion  is  quite 
eciuivalent  to  an  origiiud  authority.  Mac- 
lean r.  Dunn,  4  Bing.  722.  —  But  hy  an 
express  provision  of  the  Statute  of  Frauds, 
an  agent,  to  grant  or  assign  a  term  for 
more  than  three  years,  or  an  estate  of  free- 


hold, must  be  authorized  thereto  in  writ- 
ing.    29  Car.  2,  c.  3,  4  3. 

(jJ)  Dows  V.  Greene,  16  Barb.  72; 
Lyell  r.  Sanboum,  2  Mich.  109;  Thomp- 
son r.  Bell,  26  Kng.  Law  i  K(|.  536. 

(/.•)  Lord  Klknborvwjh,  Pickering  p. 
Busk,  15  Ea.st,  38. 

{/)  Prestwick  v.  Marshall,  7  Bing.  565  ; 
Iluckman  v.  Fernie,  3  M.  &  W.  505  ; 
Att'y  Gen.  v.  Kiddle,  2  C.  &  Jer.  493 ; 
Plinimer  r.  Sells,  3  N.  &  Mann.  422. — 
After  separation,  the  wife  is  still  her  hus- 
band's agent  for  the  procurement  of  such 
things  as  wtQ  reasonable  and  neces.sary  for 
herself.  Emmctt  v.  Noiton,  8  C.  &  Payne, 
506.  So  where  the  person  cohaiiitetl  with 
is  only  a  mistress,  and  known  to  be  in  fact 
only  a  mistress,  if  she  is  allowed  to  pass 
ostensiblv  as  wife,  llyan  v.  Sans,  12  Q. 
B. 460.  " 

(/«)  A  master  is  not  responsible  for  a 
contract  cnteix'd  into  by  a  servant  to  whom 
he  had  always  given  cash  fur  making  pur- 
chases. Rushy  V.  Scarlett,  5  Ksp.  75. 
So  with  (tnfi  particular  agent  who  obtains 
on  credit  goods  which  the  j)rincij>al  gave 
him  money  to  pun^ia.'ie.  Ixtrd  Aliim/er, 
C.  B.,  Fleiiiyng  i'.  Hector,  2  M.  &  W.  181. 

[40] 


44* 


TEE   LAW    OF   CONTKACTS. 


[book  I. 


able  time  to  transact  a  particular  business  for  the  father,  (w)  as 
to  sign  bills,  &c. ;  or  where  'one  has  been  repeatedly  employed 
to  sign  for  another  policies  of  insurance,  (o) 

It  must  be  remembered,  however,  that  an  agent  employed 
for  a  special  purpose,  derives  from  this  no  general  authority 
from  his  principal,  (p)  Where  the  belief  of  the  authority  of  an 
agent  arises  only  from  previous  action  on  his  part  as  an  agent, 
the  persons  so  treating  with  him  must  on  their  own  responsi- 
bility ascertain  the  nature  and  extent  of  his  previous  *employ- 
ment.  [q)  This  may  be  such  as  to  estop  the  principal  from 
denying  his  authority  in  the  particular  transaction  ;  but  if  not, 
then  they  have  no  remedy,  unless  against  the  agent  himself  who 
misled  them,  (r) 

SECTION    III. 

SUBSEQUENT    CONFIRMATION. 

As  agency  may  be  presumed  from  repeated  Hcts  of  the  agent, 
adopted  and  confirmed  by  the  principal  previously  to  the  con- 
tract in  which  the  question  is  raised,  [s)  so  such  agency  may  be 


(n)  Watkins  v.  Vince,  2  Stark.  368.  . 

(o)  Brockclbank  v.  Sugrue,  5  C.  & 
Payne,  21  ;  Hanghtoii  v.  Ewbank,  4  Camp. 
88j  where  it  was  held  sufficient  proof  of  an 
agent's  authority  to  subscribe  a  policy  of 
insurance  for  an  insurer,  that  the  insurer 
was  in  the  habit  of  paying  losses  upon 
policies  so  subscribed  by  him,  without  pro- 
ducing the  power  of  attorney  under  which 
the  agent  testified  that  he  acted. — An 
authority  to  draw  is  not  an  authority  to 
indorse ;  Robinson  v.  Yarrox^,  7  Taunt. 
45.5  ;  yet  the  fact  that  a  confidential  clerk 
had  been  accustomed  to  draw,  taken  in 
connection  with  the  fact  that  his  master 
had  in  one  instance  authorized  him  to  in- 
■dorsc,  and  on  two  other  occasions  had 
received  money  obtained  by  his  indorse- 
ment, is  evidence  from  which  a  jury  may 
infer  a  general  authority  to  indorse. 
Prescott  r.  Fiinn,  9  Bing.  19. 

{p)  Reynell  v.  Lewis,  15  M.  &  W.  517  ; 
Dawson  v.  Morrison,  16  Law  J.,  C.  P.  240 ; 
Cox  V.  Midland  Railway  Co.  3  Exch. 
268  ;  Rusby  v.  Scarlett,  5  Esp.  75  ;  Bur- 
ness  V.  Pennell,  2  House  of  Lords  Cases, 

[46] 


519  ;  Kaye  v.  Brett,  5  Exch.  269  ;  Thatcher 
V.  Bank'of  New  York,  5  Sand.  121. 

(q)  Schimmelpennich  r.  Bayard,  1  Pet. 
264  ;  Parsons  v.  Armor,  3  id.  413  ;  Blane 
V.  Proudfit,  3  Call,  207 ;  Kilgour  v.  Fin- 
lyson,  1  \l.  Bl.  155,  where  a  power  given, 
on  the  dissolution  of  a  partnership,  to  one 
of  the  partners  to  receive  all  delits  owing 
to,  and  to  discharge  all  claims  against,  the 
late  partnership,  was  held  not  to  autliorize 
him  to  indorse  a  bill  of  exchange  in  the 
partnership  name,  though  drawn  by  him 
in  that  name,  and  accepted  by  a  del)tor  of 
the  partnership  after  the  dissolution. 

(r)  Pouric  v.  Fraser,  2  Bay,  269. 

\s)  Townsend  v.  Inglis,"  Holt,  278 ; 
Haughton  v.  Ewliank,  4  Cam]).  88  ;  Bar- 
ber V.  Gingell,  3  Esp.  60.  There  the  ap- 
parent acceptor  of  a  bill  of  exchange,  set- 
ting up  as  a  defence  that  his  signature 
had  been  forged,  it  was  held  a  good  an- 
swer that  the  defendant  had  paid  other 
bills  of  the  drawer  under  similar  circum- 
stances. And  see  Brigham  v.  Peters,  1 
Gray,  147. 


en.  III.] 


AGENTS. 


%5 


confirmed  and  established  by  a  subsequent  ratification  ;  the 
common  law  having  adopted  the  civil  law  maxim,  "  omnis  rati- 
habitio  relrotraliitur  et  mandato  aquiparatm'^  {t)  The  rule  may 
be  stated  thus  :  where  any  one  contracts  as  agent  without 
naming  a  principal,  his  acts  inure  to  the  benefit  of  the  party, 
although  at  the  time  uncertain  or  unknown,  for  whom  it  shall 
turn  out  that  he  intended  to  act,  provided  the  party  thus  enti- 
tled «to  be  principal  ratify  the  contract,  {it)  And,  generally,  if 
the  principal  receive  and  hold  *the  proceeds  or  beneficial  results 
of  the  contract,  he  will  be   estopped  from  denying  an  original 


(t)  18  Vin.  Abr.  Ratiliahllio  ;  Luccna  v. 
Craufurd,  1  Taunt.  325  ;  Clark's  Execu- 
tors I'.  Van  Kicmsdyk,  9  Cranch,  158  ; 
Flcckncr  v.  United  States  Bank,  8  Wheat. 
3G3  ;  Bell  i'.  Cunningham,  3  Peters,  81  ; 
Hooc  V.  Oxley,  1  Wasli.  (Va.)  19;  Moss 
V.  Rossie  Lead  Mininj,^  Co.  5  Hill,  (N.  Y.) 
137  ;  Rogers  v.  Kneeland,  10  Wend.  218 ; 
Marsh  v.  Keatintr,  1  Binp.  N.  C.  198; 
Bigelow  V.  Dcnnison,  23  Verm.  565.  — 
If  any  stranger,  in  the  name  of  the  mort- 
gagor or  his  heir,  (without  his  consent  or 
privity,)  tender  the  money,  and  the  mort- 
gagee accepteth  it,  [whieli,  liowever,  he  is 
not  bound  to  do,]  this  is  a  good  satisfac- 
tion, and  the  mortgagor  or  his  heir,  agree- 
ing thereunto,  may  reenter  into  the  land. 
Co.  Litt.  206,  b. 

{tt)  Wilson  V.  Tumman,  6  M.  &  G.  242. 
"  liuliim  rjitis  hfibcre  non  potest  quoil  ipsiiis 
nomine  nonrstr/entum."  Sec  also,  Saiinder- 
son  V.  GriHiths,  5  B.  &  Cr.  909;  and 
Routh  V.  Thompson,  13  East,  274  ;  Fos- 
ter r.  Bates,  12  M.  &  W.  226;  Hull  v. 
rickersgiU,  1  B.  &  Bing.  282.  This  doc- 
trine has  fre(|uent  aj)i)lication  in  cases  of 
marine  insurance.  See  Ilagedorn  v. 
Olivcrson,  2  M.  &  Scl.  485 ;  Finney  v. 
Fairliavcn  Ins.  Co.  5  Metealf,  192. —  A 
notira  to  quit  given  by  an  unauthorized 
agent  caimot  he  made  good  by  an  adop- 
tion of  it  by  the  principal  after  the  proper 
time  for  giving  it,  the  agent  having  acted 
in  his  own  name  in  giving  the  notice,  nor 
it  seems,  if  he  acted  in  tlie  name  of  the 
))rincipal.  Doc  r.  Goldwin,  2  Queen's 
Bench,  143;  Right  v.  Cutbell,  5  East, 
491.— In  Bird  v.  Brown,  14  Jurist,  132, 
a  very  important  distinction  was  taken  by 
the  Court  of  Exclie(pier.  A,  a  merchant 
at  Liverpool,  sent  orders  to  li,  at  New 
York,  to  purchase  certain  goods,  wiiich 
were  shipped  accordingly  in  five  ships  and 
consigned  to  A,  who,  aitcr  the  receipt  of 


the  goods  by  one  of  them,  stopped  pay- 
ment on  the  7th  April,  1846.  B,  j)ur- 
suant  to  directions  from  A,  had  drawn 
bills  for  the  goods  partly  on  A,  and  partly 
on  C,  with  whom  A  had  dealings.  D,  a 
merchant  at  Liverpool,  and  who  also  had 
a  house  of  business  at  New  York,  pur- 
chased there  several  of  the  bills,  which 
were  drawn  at  sixty  days' sight,  and  dated 
some  on  the  28th,  and  others  on  the  30th 
March,  1846.  On  the  8th  May,  a  tiat  ia 
bankruptcy  issued  against  A,  and  bis  as- 
signees were  appointed.  The  other  four 
vessels  arrived  respectively  on  the  4th, 
5th,  7tb,  and  10th  of  that  month,  and  im- 
mediately on  the  arrival  of  each,  and 
while  the  transitus  of  the  goods  on  board 
continued,  D,  on  behalf  of  B,  but  not 
being  his  agent,  and  without  any  author- 
ity from  him,  gave  notice  to  the  masters 
and  consignees,  claiming  to  stoji  the  goods 
in  transitu.  On  the  11th  of  May  the 
assignees  made  a  formal  demand  of  the 
goods  still  on  board  and  undi'livered,  from 
the  master  and  consignees  of  each  of  the 
four  sliips,  at  the  same  time  tendering  the 
freight ;  but  they  refused  to  deliver  them, 
and  on  the  same  day,  delivered  the  whole 
to  1).  On  the  next  day  the  assignees 
made-a  fonnal  demand  of  the  goods  from 
him,  but  he  refused  to  deliver  them  up. 
On  the  28th  Ajiril,  B  heard  at  New  York 
that  A  had  sto])iu'd  jiayment,  and  on  the 
next  day  he  executed  a  power  of  attorney 
to  E,  of  Liverpool,  authorizing  him  to 
stop  the  goods  in  transitu.  This  was  re- 
ceived by  E  on  the  13th  May,  who  on 
that  day  adoj)ted  and  conlirnied  tlie  pre- 
vious stopjjage  by  1).  B  afterwards 
adopted  and  ratified  all  which  had  l)ccn 
done  both  by  E  and  D.  IIM,  that  the 
title  of  A  to  the  goods  was  not  devested' 
by  the  above  stoppages  in  tran.'<ilu,  and 
consequently   that   trover   for  tliem  was 

[-17] 


46* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


authority,  or  a  *ratification.  (it)     And  if  a  party  does  not  dis- 
avow the  acts  of  his  agent  as  soon  as  he  can  after  they  come  to 


maintainable  by  the  assignees  against  B. 
Pollock,  C.  B.,  delivering  the  judgment, 
said  :  "  The  doctrine  '  oninis  ratihabitio 
retrotrahitur  et  mandato  (vquiparatHr,'  is 
one  intelligible  in  principle,  and  easy  in 
its  application  when  applied  to  cases  of 
contract.  If  A.  B.,  unauthorized  by  me, 
makes  a  contract  on  my  behalf  with  J.  S., 
which  I  afterwards  recognize  and  adojjt, 
thei'c  is  no  difficulty  in  dealing  with  it  as 
having  been  originally  made  by  my  au- 
thority. J.  S.  entered  into  the  contract 
on  the  iniderstanding  that  he  was  dealing 
with  me,  and  when  I  afterwards  agree  to 
admit  that  such  was  the  case,  J.  S.  is  pre- 
cisely in  the  condition  in  which  he  meant 
to  be ;  and  if  he  did  not  believe  A.  B.  to 
be  acting  for  me,  his  condition  is  not 
altered  by  my  adoption  of  the  agency,  for 
he  may  sue  A.  B.  as  principal  at  his 
option,  and  has  the  same  equities  against 
me  if  I  sue,  that  he  would  have  had 
against  A.  B.  In  cases  of  tort  there  is 
more  difficulty.  If  A.  B.,  professing  to 
act  by  my  authority,  does  that  which  prima 
facie  amounts  to  a  trespass,  and  I  after- 
wards assent  to  and  adopt  his  act,  there 
he  is  treated  as  having  from  the  beginning 
acted  by  my  authority,  and  I  become  a 
trespasser,  unless  I  can  justify  the  act 
which  is  to  be  deemed  as  having  been 
done  by  my  previous  sanction.  So  far 
there  is  no  difficulty  in  applj'ing  the  doc- 
trine of  ratification  even  in  cases  of  tort 
—  the  party  ratifying  becomes  as  it  were  a 
trespasser  by  estoppel — he  cannot  com- 
plain that  he  is  deemed  to  have  authorized 
that  which  he  admits  himself  to  have  au- 
thorized. Tiie  authorities,  however,  go 
much  further,  and  show  that  in  some  cases 
where  an  act,^  which  if  unauthorized  would 
amount  to  a  trespass,  has  been  done  in 
the  name  and  on  behalf  of  another,  and 
without  previous  authority,  there  a  sub- 
sequent ratification  may  enable  the  party 
on  whose  behalf  the  act  was  done,  to  take 
advantage  of  it,  and  to  ti-eat  it  as  having 
been  done  by  his  dii'cction.  But  this  doc- 
trine must  be  taken  with  the  qualification 
that  the  act  of  ratification  must  take  place 
at  a  time,  and  under  circumstances,  when 
the  ratifying  party  might  have  himself 
lawfully  done  the  act  which  he  ratifies. 
Thus  in  Lord  Audlei/'s  case,  a  fine  with 
proclamations  was  levied  of  certain  land, 
and  a  stranger  within   five   years   after- 

[48] 


wards,  in  the  name  of  him  who  had  right, 
entered  to  avoid  the  fine ;  after  the  five 
years,  and  not  before,  the  party  who  had 
the  right  to  the  land  ratified  and  confirmed 
the  act  of  the  stranger  ;  this  was  held  to 
be  inoperative,  though  such  ratification 
within  the  five  years  would  probably  have 
been  good.  Now  the  principle  of  this 
case,  which  is  reported  in  manv  books, 
Cro.  Eliz.  561  ;  Moore,  4.^7,  pi.  630 ; 
Poph.  108,  pi.  2,  and  is  cited  with  appro- 
bation by  Lord  Coke  in  Margaret  Pochjer's 
case,  (9  Co.  106,  a,)  appears  to  us  to  gov- 
ern the  present.  There  the  entry  to  be 
good  must  have  been  made  within  the  five 
years  ;  it  was  made  within  that  time,  but 
till  ratified  it  was  merely  the  act  of  a 
stranger,  and  so  had  no  opei'ation  against 
the  fine  ;  by  the  ratification  it  became  the 
act  of  the  party  in  whose  name  it  was 
made,  but  that  was  not  until  after  the  five 
years — he  could  not  be  deemed  to  have 
made  an  entry  till  he  ratified  the  previous 
entry  —  and  he  did  not  ratify  until  it  was 
too  late  to  do  so.  In  the  present  case  the 
stoppage  could  only  be  made  during  the 
transitus  ;  during  that  period,  the  defend- 
ants, without  autliority  from  lUins,  made 
the  stoppage.  After  the  transitus  was 
ended,  but  not  before,  Illins  ratified  what 
the  defendants  had  done  ;  from  that  time 
the  stoppage  was  the  act  of  Illins.  But  it 
was  then  too  late  for  him  to  stop  ;  the 
goods  had  already  become  the  property  of 
the  plaintiffs,  free  fi-om  all  right  of  stop- 
page. We  are  therefore  of  opinion  that 
there  must  be  judgment  for  the  plaintitis." 
—  It  is  somewhat  remarkable,  in  view  of 
the  present  state  of  the  law,  that  it  was 
at  one  time  strenuously  contended  that 
the  doctrine  of  ratification  reached  lesS' 
broadly  in  contract  than  in  tort ;  and  that 
although  a  principal  unknown  at  the  time 
could  afterwards  adopt  the  act  of" the 
agent  in  the  latter  case,  he  could  not  in 
the  former.  See  Hagedorn  v.  Olivcrson, 
2  M.  &  Sel.  485,  and  per  Parke,  J.,  in  Hull 
V.  Pickersgill,  1  B.  &  Bing.  287. 

(u)  Holt,  C.  J.,  in  Bolton  v.  Ilillersden, 

I  Ld.  Raym.  224,  225  ;  Thorold  r.  Smith, 

II  Mod."72;  Byrne  u.  Doughty,  13  Geo.. 
46;  Johnson  v.  Smith,  21  Conn.  G27.  The 
principal,  when  he  has  once  affirmed  a 
contract  made  by  the  agent  witiiout  au- 
thority, and  even  fraiululently,  cannot 
aftenvards  disaffirm  it ;  bringing  assumpsit 


CH.  III.] 


AGENTS. 


*47 


his  knowledge,  he  makes  these  acts  his  own.  (v)  An  adoption 
of  the  agency  in  part,  adopts  it  in  the  whole,  because  a  prin- 
cipal is  not  permitted  to  accept  and  confirm  so  much  of  a  con- 
tract made  by  *one  purporting  to  be  his  agent,  as  he  shall  think 
beneficial  to  himself,  and  reject  the  remainder,  (iv) 

Where  the  party  who  undertakes  to  act  as  agent  has  affixed 
a  seal  to  an  instrument  which  did  not  need  a  seal,  a  parol  rati- 
fication will  make  the  instrument  obligatory  upon  the  principal 
as  a  simple  contract,  (loiv)  And  where  one  acting  as  agent 
has,  without  authority,  entered  into  a  contract  in  writing  re- 
quired by  the  Statute  of  Frauds  to  be  in  writing,  the  principal 


against  the  third  ])arty  is  an  affirmance. 
Smith  V.  Ilodson,  4  T.  R.  211,  217.  Yet 
if  the  party,  alleged  to  be  princii)al,  after 
denying  tliat  tlic  agent  had  autliority  from 
him  to  pureliase  goods,  receive  tiiem  from 
the  agent  in  ])ayment  of  a  del  it  due  from 
the  latter,  the  original  seller  (whatever 
other  remedy  he  may  have)  cannot  hold 
sucii  su])posed  princial  liahle  as  having 
ratified  the  purchase  made  by  the  agent. 
Hastings  v.  Bangor  House,  18  Maine  11. 
436. —  The  ratitieation  of  an  act  of  an 
agent,  in  order  to  bind  the  ))rincipal,  must 
be  with  a  lull  knowledge  of  all  the  mate- 
rial facts.  Freeman  *•.  Kosher,  1.3  Q.  B. 
780;  Owings  r.  Hull,  9  Peters,  607; 
Pcnn.,  Del.,  and  Md.  Steam  Nav.  Co.  r. 
Dandridge,  8  G.  &  Johns.  248,32.3  ;  Hays 
r.  Stone,  7  Hill,  N.  Y.  128;  Copeland"i-. 
Mercantile  Ins.  Co.  6  Pick.  19S.—  Con- 
duct which  would  be  sufficient  to  charge 
an  i/ifliridiKil  as  i)rincii)al,  may  not 
amount  to  ratification  in  the  case  of  a 
State.  Delafield  v.  Illinois,  26  Wend. 
192. 

(i')  Bredin  v.  Dubairy,  14  S.  &  Rawlc, 
27;  Veazie  r.  AVillianls,  8  Howard,  S. 
Ct.  134;  Benedict  r.  Smitii,  10  Paige, 
126  ;  McCulloch  r.  McKee,  16  Penn.  289  ; 
Brigham  /•.  Petei-s,  1  Gray,  139. 

(if)  Wilson  V.  Poulter,  2  Stra.  859; 
Smith  V.  Ilodson,  4  T.  R.  211  ;  Ilovil  i-. 
Pack,  7  East,  164;  Brewer  v.  Sjjarrow, 
7  B.  &  Cress.  310;  Wright  v.  Crookes, 
1  Scott,  N.  ]{.  68.J  ;  Hovcy  r.  Blanchard, 
13  N.  II.  145;  FarnuMs'  Loan  Co.  v. 
Walworth,  1  Comst.  447  ;  N.  F.  Marine 
Ins.  Co.  f.  l)c  Wolf,  8  Pick.  56  ;  Culver 
I'.  Ashley,  19  id.  .300;  Bigelow  r.  Denni- 
son,  23  Verm.  565  ;  Hodnelt  v.  Tatum, 
9  (ieo.  70 ;  Elani  v.  Carruth,  2  Louis. 
Ann.  275 ;  Cook  v.  Bank  of  Louisiana, 

VOL.   I.  5 


id.  324.  It  seems  the  delivery  of  money 
to  the  agent  for  payment  by  him  to  a  per- 
son with  whom  the  ageiit  had  contracted 
^yithout  authority,  is  such  a  ratification, 
(though  the  delivery  of  the  money  be  not 
made  known  to  the  other  contracting 
party,)  tiiat  if  the  agent  embezzle  the 
money,  the  principal  is  still  bound  by  the 
contract.  Lord  Elleiibowiif/h,  in  Rusby  i\ 
Scarlett,  5  Esp.  77.  —  In  Burn  v.  Morris,, 
4  Tyr.  485,  ti'overwas  maintained  against 
the  finder  of  a  bank-note  for  20/.  i)y  the 
owner.  The  defendant  got  tlie  note 
changed  at  the  Bank  of  England,  and 
afterwards,  being  taken  before  the  Lord 
Slayor,  7/.  (being  part  of  the  pi-oceeds  of 
the  note)  were  found  upon  her  and  were 
restored  to  the  plaintiff.  It  was  contended, 
that  this  receipt  of  the  71.  was  a  ratifica- 
tion of  tiie  defendant's  act,  and  precluded 
tiie  i)laintitf  from  treating  it  as  a  conver- 
sion ;  and  Brewer  v.  Sparrow,  7  B.  & 
Cress.  310,  was  cited.  But  Lord  Ljjnd- 
htrst,  C.  B.,  said  :  "  In  that  case  the 
whole  proceeds  of  the  sale  were  taken  ; 
that  is  an  adoption  of  tlie  act  :  here  the 
recei|)t  of  the  11.  does  not  ratify  ilie  act  of 
tlie  parties,  it  only  goes  in  diminution 
of  damages."  —  If  tlie  principal,  upon 
being  informed  of  what  has  been  done,  by 
one  acting  as  his  agent,  does  not  give 
notice  of  dissent  in  a  reasonable  time,  his 
assent  shall  be  ]>resumed.  Cairncs  v. 
Bleecker,  12  Jolms.  300  ;  Richmond  Man- 
ufact.  Co.  V.  Stark,  4  Ma.-^ou,  296. 

(irw)  Hunter  r.  Parker,  7  M.  &  W. 
322  ;  Despatch  Line  r.  Bcllamv  Manuf. 
Co.  12  N.  II.  205;  Worrall  r.  "Mann,  I 
Scld.  229;  Randall  v.  Van  Vcchten,  19 
Johns.  01  ;  Bank  of  Metropolis  r.  Ciutt- 
schlick,  14  I'et.  29  ;  Mitchell  v.  St.  An- 
drew's itay  Land  Co.  4  Flor.  200. 
[49] 


47- 


THE  LAW   OF   CONTRACTS. 


[book  I. 


is  bound  by  an  oral  ratification,  (wv)  But  it  has  been  held, 
that  a  parol  ratification  cannot  make  that  the  deed  of  the  prin- 
cipal which  originally  did  not  bind  him  from  the  agent's  want 
of  an  authority  under  seal,  (ivx) 

The  ratification  of  the  tort  of  an  agent  does  not  in  general 
relieve  him  from  liability  ;  although,  as  in  cases  of  contract,  a 
liability  is  thereby  incurred  by  the  principal,  (ivj/) 


(hw)  Maclean  i'.  Dunn,  4  Bing.  722. 

((r.r)  Steiglitz  v.  Egginton,  Holt,  N.  P. 
C.  141,  per  Gibbs,  C.  J.  ;  Stetson  v.  Pat- 
ten, 2  Grcenl.  358 ;  Despatch  Line  v. 
Bellamy  Manuf.  Co.  12  N.  II.  20.5  ;  Parke, 
B.,  Hunter  v.  Parker,  7  M.  &  W.  343.  — 
In  Blood  V.  Goodrich,  9  Wend.  77,  Savage, 
C.  J.,  advanced  the  opinion  that  a  ratifica- 
tion in  writing  might  suffice. 

{inj)  It  appears  indeed  to  be  said  in  2 
Greenl.  Evid.  §  68,  that  a  man  cannot 
become  a  trespasser  by  ratification.  "  If 
the  act  of  the  agent  was  in  itself  imlaivful, 
and  dlrecthj  injurious  to  another,  no  subse- 
quent ratification  will  operate  to  make  the 
principal  a  tivspasser ;  for  an  authority  to 
commit  a  trespass  does  not  result  by  mere 
implication  of  law.  The  master  is  liable 
in  trespass  for  the  act  of  his  servant,  only 
in  consequence  of  his  previous  express 
command."  But,  as  it  seems,  the  cases 
recognize  no  greater  difficulty  in  becoming 
a  trespasser  by  ratifying  the  trespass  of 
the  agent,  than  in  becoming  liable  ex  con- 
tractu by  ratifying  the  agent's  contract.  In 
neither  case  can  the  principal  be  made 
liable,  unless  the  agent,  at  the  time  of  the 
tort  or  the  contract,  undertook  to  act  for 
him  ;  but  if  the  agent,  though  witliout  any 
precedent  authority,  did  undertake  to  act 
Jbr  the  principal,  and  he  subsequently 
ratify,  "  in  that  case,"  in  the  language  of 
Tindal,  C.  J.,  Wilson  v.  Tumman,  6  M. 
&  G.  242,  "  the  principal  is  bound  by  the 
act,  whether  it  be  for  his  detriment  or  his 
advantage,  and  whether  it  he  founded  on  a 
tort  or  a  contract,  to  the  same  extent,  as, 
by,  and  with  all  the  consequences  which 
follow  from,  the  same  act  done  by  his 
previous  authority."  Wilson  v.  Tumman 
was  an  action  of  trespass  against  T.,  who 
had  ratified  the  trespass  of  agents ;  but 
they  in  committing  the  trespass  had  not 
acted  for  T.,  but  for  another  person  ;  and 
on  this  account  it  was  held  that  T.  was 
not  liable.  In  Barker  v.  Braham,  3  Wils. 
376,  De  Grey,  C.  J.,  said  explicitly,  "  one 
assenting  to  a  trespass  after  it  is  done  is  a 
trespasser."      In   Co.  Litt.   180,   b,  it  is 

[50] 


stated,  that  "  if  A  disseize  one  to  the  use 
of  B,  who  knoweth  not  of  it,  and  B  as- 
sent to  it,  in  this  case,  till  the  agreement, 
A  was  tenant  of  the  land,  and  after  the 
agreement,  B.  is  tenant  of  tlie  land,  but 
both  of  them  be  disseizors;  for  omnis  ratiha- 
bitio  retrotrahitur  et  mandato  cequiparatur." 
And  where  a  bailiff  seized  a  beast  for  a 
heriot  where  none  was  due,  and  the  lord 
agreed  to  the  seizure  and  took  the  beast, 
the  whole  court  agreed  tliat  the  lord  was 
liable  in  trespass,  and  the  only  (jucstion 
made  was,  whether  the  plaintifi'  might 
elect  to  bring  trover  instead.  Bishop  r. 
Montague,  Cro.  Eliz.  824.  See  also,  Wil- 
son V.  Barker,  4  B.  &  Ad.  614,  616,  where 
4  Inst.  317,  is  cited  liy  Parlce,  J. ;  Hull  v. 
Pickersgill,  1  B.  &  Bing.  282,  286  ;  Pol- 
lock, C.  B.,  Bird  v.  Brown,  14  Jur.  134, 
cited  supra,  p.  4,5,  note.  This  matter  of 
trespass  by  ratification  was  very  thorough 
ly  discussed,  and  the  law  respecting  it  set- 
tled substantially  as  it  has  ever  since  re- 
mained, so  early  as  38  Ed.  3,  18;  Lib. 
Ass.  223,  pi.  9,  S.  C. ;  and  see  the  reso- 
lution of  the  court  stated  Bro.  Abr.  Ejec- 
tione  Custodie,  pi.  ,5,  8,  Trespass,  \>\.  113, 
256. — As  to  trespass  with  batter//,  or  a 
trespass  constituting  a  statutory  offence, 
see  Bishop  v.  Montairuc,  Cro.  I)liz.  824  ; 
Hawk.  P. C,  B.  2,  ch.  29,  §  4  ;  but  with 
this  last  com])are  Goulds.  42 ;  Moore,  53, 
pi.  155  ;  and  Co.  Litt.  ISO,  b,  note  (4.) 

An  intei'esting  and  imjiortant  question 
arose  in  Buron  v.  Denman,  2  Exch.  167. 
The  defendant,  a  naval  commander,  sta- 
tioned on  the  coast  of  Africa,  with  instruc- 
tions fortlie  su])pression  of  the  slave  trade, 
went  beyond  liis  instructions  in  firing  the 
baracoons  of  the  plaintiff,  a  Spanisli  sub- 
ject, and  carrying  off  certain  slaves  of 
which  he  was  there  lawfully  possessed. 
The  Lords  of  the  Admiralty  and  the 
Secretaries  of  State  for  the  foreign  and 
colonial  departments,  res])ectively,  by  let- 
ter, adopted  and  ratified  wliat  the  defend- 
ant had  done.  Held,  by  Alderson,  Piatt, 
and  Rolfe,  BB.,  that  such  ratification  was 
equivalent  to  a  prior  command,  and  ren- 


CII.  III.] 


AGENTS. 


*48 


SECTION     IV 


SIGNATURE   BY   AN   AGENT. 


The  manner  in  which  an  agent  should  sign  an  instrument  for 
his  principal  has  given  rise  to  some  controversy.  There  has 
been  a  tendency  to  discriminate  in  this  respect.  To  say,  for 
instance,  that  if  A  signs  "  A  for  B,"  this  is  the  signature  of  A, 
and  he  is  the  contracting  party,  although  he  makes  the  contract 
at  the  instance  and  for  the  benefit  of  B.  But  if  he  signs  "  B 
by  A,"  then  it  is  the  contract  of  B  made  by  him  through  his 
instrument  A.  In  the  first  case  A  is  the  principal;  in  the  second 
B  is  the  principal  and  A  his  agent.  But  the  recent  cases,  and 
the  best  reasons,  are  for  determining  in  each  instance,  and  how- 
ever the  signature  is  made,  from  the  facts  and  the  evidence, 
that  a  party  is  an  agent  or  a  principal,  in  accordance  with  the 
iiitention  of  the  parties  to  the  contract,  (x)  But  it  is  still  re- 
quisite that  the  name  of  the  principal  appear  in  the  signature  of 
a  deed,  (xx)     It  has  been  regarded  as  an  established  *principle, 


dcrcd  wliat  otherwise  would  have  been  a 
trespass  on  the  part  of  the  defendant,  an 
aet  of  state  for  wliieh  tlie  erowii  Wius  alone 
responsible.  y^a/'A-e,  IJ.,  doubted  :  "  I  do 
not  say  that  I  dissent ;  but  I  express  my 
concurrence  with  some  doubt,  because,  on 
reflection,  there  appears  to  nie  a  consider- 
able distinction  between  the  present  and 
the  ordinary  case  of  ratification  by  subse- 
<|uent  authority  l)etween  private  indi- 
viduals. If  an  individual  ratiHes  an  act 
done  on  liis  behalf,  tlie  nature  of  the  act 
remains  unchan|i:ed.  it  is  still  a  mere  tres- 
pass, and  the  party  injured  has  iiis  ojition 
to  sue  either;  if  the  crown  ratifies  an  act, 
the  character  of  the  act  becomes  altered, 
I'or  the  ratification  does  not  jiive  tin,'  jiarty 
injured  the  doul)le  option  of  brinj;in;r  Ids 
action  aj^ainst  the  a;zent  who  committed 
the  trespass  or  the  principal  wli(»  ratified 
it,  but  a  remedy  against  the  crown  oidy 
(such  as  it  is,)  and  actually  exempts  from 
all  liability  the  person  who  commits  the 
trespass." 

(.r)  Sec  Mechanics'  Bank  v.  Bank  of 
Columbia,  5  Wheat.  32G,  .337  ;  Lonp:  v. 
Colburn,  1 1  Mass.  97  ;  Abbey  i-.  Chase, 


6  Cash.  54 ;  Sheldon  v.  Kendall,  7  Cush. 
217;  Wilks  v.  Black,  2  East,  142;  Wil- 
burn  V.  Larkin,  3  Blackf.  35 ;  Hunter  v. 
Miller,  6  B.  Mon.  612;  Wiiitehead  v. 
Reddiek,  12  Ire.  L.  95;  McCall  l:  Clayton, 
1  Busbee's  Law,  (X.  C.)422;  Svdilor  r. 
Hurd,  8  Tex.  98  ;  Giddens  i:  Byers'  Heirs, 
12  id.  75  ;  Johnson  v.  ymith,  21  Conn.  627  ; 
Rogers  v.  March,  33  Slaine,  106  ;  South- 
ern Ins.  Co.  V.  Gray,  3  Florida,  262 ; 
Hicks  V.  Ilinde,  9  Barb.  528.  But  .sec 
Moss  i\  Livingston,  4  Coms.  208  ;  Lcn- 
nard  r.  Robinson,  32  K.  L.  &  E.  127.  Li 
rinckney  v.  Hagadorn,  1  Ducr,  (N.  Y.) 
89,  an  auctioneer  had  signed  his  own 
name  to  a  receipt  for  the  deposit  made  upon 
the  ])ureliase  oi"  real  estate  sold  the  plain- 
tifl"  at  auction  "  for  which  a  good  and  suf- 
ficient title  is  to  be  given  by  J.  II.  and 
others  ;  "  it  was  held,  that  this  was  a  suf- 
ficient signing  by  J.  H.  irithln  the  stattUe 
of  fhiitds,  although  his  signature  did  not 
appear  in  the  suliserijjtion. 

{.rr)  Bae.  Abr.  Iaums,  I.  10;  Clarke 
V.  Courtnev,  5  Peiers,  319,  350.  See 
Beckham  v'.  Drake,  9  M.  &  W.  79. 

[51] 


48- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


that  no  person  is  held  to  be  the  agent  of  another  in  making  a 
written  contract,  unless  his  agency  is  stated  in  the  instrument 
itself,  and  he  therein  stipulates  for  his  principal  by  name,  (y) 
In  Stackpole  v-  Arnold,  {z)  Chief  Justice  Parker  considers  this 
rule  as  applicable  to  every  written  contract.  But  the  rule  is 
qualified  if  not  contradicted  by  authorities  of  much  weight,  (a) 


(jj)  Long  V.  Colburn,  11  Mass.  97; 
Mii(;ill  V.  Hinsrlale,  6  Connect.  464 ; 
Haiieofk  v.  Fairfield,  30  Maine,  299. 

(r)  11  Mass.  27. 

(«)  The  rule,  first  advanced,  it  is  be- 
lieved, by  Mr.  Smith,  (2  Lead.  Cases, 
Thomson  r.  Davenport,  note,)  seems  to 
be  adopted  by  the  English  Courts.  That 
rule  is  that  pai-ol  evidence  is  always  ad- 
missible to  charge  the  unnamed  principal, 
though  never  to  discharge  the  actual  signer. 
Humble  v.  Hunter,  12  Queen's  Bench, 
310;  Higgins  i-.  Senior,  8  M.  &  W.  8.34  ; 
Trueman"u.  Loder,  11  Ad.  &  El.  594. — 
In  Beckham  v.  Drake,  9  M.  &  ^Y.  79, 
where  it  was  decided  that  a  partner  might 
be  held  liable  iipon  a  written  contract, 
signed  by  his  copartners,  but  in  which  his 
name  did  not  appear.  Lord  Abinger,  C. 
B.,  and  Parke,  B.,  took  occasion  to  con- 
sider the  case  upon  the  principles  of 
Agency.  They  admitted  that  in  the  case 
of  a  bill  of  exchange  or  promissory/  note, 
none  but  the  parties  named  in  the  instru- 
ment by  their  name  or  firm,  can  be  made 
liable  to  an  action  upon  it,  but  were  of 
opinion  that  all  other  written  contracts, 
not  under  seal,  stand  upon  the  same  foot- 
ing with  regard  to  the  parties  who  may 
be  sued  u]ion  them,  as  contracts  not  writ- 
ten. The  weight  of  American  authority 
is  as  yet  opposed  to  the  admission  of  parol 
evidence  to  charge  an  unnamed  party. 
Many  of  the  cases  in  which  this  broad 
doctrine  was  laid  down  by  our  courts, 
were  cases  of  mercantile  paper,  yet  the 
decisions  evidently  were  not  rested  upon 
the  peculiar  cliaractcr  of  this  class  of  in- 
struments. Whether  American  courts 
will  be  inclined  hereafter  to  follow  the 
English  judges,  and  draw  a  line  of  dis- 
tinction which  shall  leave  ordinary  written 
contracts  open  to  the  admission  of  new 
parties,  remains  to  be  seen.  It  is  certain, 
however,  tiuit  considerations  deserving 
great  attention  may  be  urged  against  the 
admissibility  of  ])arol  evidence  to  charge 
with  liability  upon  a  written  contract  a 
party  not  referred  to  in  it.  See  Long  v. 
Colburn,  11  Mass.  97  ;  Stackpole  v.  As- 

[52] 


nold,  11  Mass.  27;  Bradlee  v.  Bo.ston 
Glass  Co.  16  Pick.  350;  Savage  v.  Rix, 
9  New  Hamp.  263  ;  Minard  v.  Mead,  7 
Wend.  68;  Spencer  r.  Field,  10  Wend. 
87  ;  United  States  v.  Parmcle,  Paine,  C. 
C.  252;  Fenley  v.  Stewart,  5  Sandf.  101. 
In  Finney  v.  Bedford  Commercial  Ins. 
Co.  8  INIetc.  348,  it  was  held,  tliat  when 
a  part-owner  of  a  vessel  or  its  outfits 
effects  insurance  tliereon  in  his  own  name 
only,  and  nothing  in  the  policy  shows 
that  the  interest  of  anj-  other  jierson  is 
secured  thereby,  an  action  on  the  policy 
cannot  be  maintained  in  the  names  of  all 
the  owners,  upon  parol  evidence  that 
such  part-owner  was  their  agent  for  pro- 
curing insurance,  and  that  his  agency 
and  their  ownership  were  known  to  the 
underwriters,  and  that  the  underwriters 
agreed  to  insui'e  for  them  all,  and  that  it 
was  the  intention  of  all  the  parties,  in 
making  the  policy,  to  cover  the  interest  of 
all  the  owners.  And  with  this  recent  case 
agrees  the  decision  of  the  Supreme  Court 
in  Graves  r.  Boston  INIar.  Ins.  Co.,  2 
Cranch,  419,  439.  But  in  Huntingdon  v. 
Knox,  7  Cush.  371,  which  was  an  action 
by  the  plaintiff  to  recover  the  price  of 
certain  bark  sold  and  delivered  to  the  de- 
fendant under  a  contract  in  Avriting,  by 
which  one  Geo.  H.  Huntingdon  acknowl- 
edged to  have  received  of  the  defendant 
a  ])artial  payment  of  $25,  and  in  consid- 
eration thereof,  agreed  to  deliver  the  de- 
fendant the  bark  in  question,  it  was  de- 
cided that  the  plaintiff,  Mehitabel  Hunt- 
ingdon, might  show  by  jiarol  evidence 
that  the  contract  was  made  by  Geo.  H. 
Huntingdon  on  her  account,  and  that  the 
liark  deli\-ered  was  her  property,  and  that 
she  was  entitled  to  recover  on  the  con- 
tract. C.  J.  Kshair  relies  upon  the  case  of 
Higgins  V.  Senior,  and  states  tlie  principle 
broadly  thus  :  "  where  a  contract  is  made 
for  tlie  benefit  of  one  not  named,  though 
in  writing,  the  latter  maj'  sue  on  the  con- 
tract jointly  with  others  or  alone,  accord- 
ing to  the  interest.  The  rights  and  lia- 
bilities of  a  principal  upon  a  written  in- 
strument executed  by  his  agent  do  not 


CH.  III.] 


AGENTS. 


•49 


and  we.  do  not  regard  it  as  of  great  force  except  in  cases  of 
sealed  instruments,  (b)  Indeed,  Chief  *J uat'ice  Parker,  in  the 
later  case  of  New  England  Marine  Ins.  Co.  v.  Be  Wolf,  (c) 
seems  to  confine  it  to  these  cases. 


depend  upon  the  fact  of  the  ajccncy  ap- 
pcarin;;  on  tlie  instnnneiit  itself,  Imt 
upon  the  facts,  first,  tiiat  tlic  act  is  done 
in  the  exercise,  and  second,  within  the 
limits  of  the  powers  delegated  ;  and  these 
arc  necessarily  inquirable  into  by  evi- 
dence." Considerable  stress  is  however 
laid  upon  the  fact  that  this  action  was  not 
brouj:Iit  u[)on  the  written  contract  itself, 
but  fur  tiic  price  of  goods  sold  by  the 
agent,  from  which  the  promise  to  pay 
implied  by  law,  although  prima  facie  to 
the  agent,  might  be  controlled  by  parol 
evidence  that  the  contract  was  for  the 
sale  of  property  belonging  to  the  principal 
and  sold  iiy  her  through  her  agent.  Upon 
this  distinction  this  case  may  be  reconciled 
with  Finney  v.  Bedford  Commercial  Ins. 
Co.,  which  was  not,  however,  alluded  to 
in  the  case.  JS'ewconib  ;-.  Clark,  1  Denio, 
226,  was  an  action  by  C.  upon  an  agree- 
ment in  writing  with  P.,  who,  it  was  in 
proof,  was  C.'s  agent.  JMd,  that  an 
action  upon  an  express  contract,  (not  be- 
ing a  negotiable  instrument,)  must  be 
brought  in  t|ie  name  of  the  party  with 
whom  it  was  made  ;  and  it  is  not  com- 
Iictent  to  show  by  jiarol  that  the  promisee 
was  the  agent  of  another  person  for  the 
purpose  of  enabling  such  jicrsou  to  main- 
tain an  action.     And  in  Fcnly  v.  Stewart, 

5  Sandf.  101,  wliich  was  an  action  of  as- 
sumpsit to  charge  the  dufendants  as  prin- 
cipals upon  a  contract  with  A.   W.  Otis 

6  Co.,  to  deliver  25,000  bushels  of  oats  to 
the  plaintirts,  and  in  which  the  Jlcssrs. 
Otis  were  introduced  and  testilied  that  at 
the  time  they  signed  the  written  agree- 
ment fur  the  sale  and  delivery  of  the  oats  in 
their  own  name  they  were  the  agents  of  the 
defendants  ;  it  was  decided  that  the  plain- 
tiffs could  not  recover,  and  the  court,  de- 
nying the  dictum  of  Baron  Parl.r,  in  the 
case  of  lliggins  c.  Senior,  that  it  is  com- 
petent by  parol  proof  to  charge  a  party 
upon  a  contract  in  writing  made  by  an- 
other person  in  his  own  name,  stated  the 
rule  to  be,  "  that  where  a  contract  is 
reduced  to  writing,  whether  incompliance 
with  the  requisitions  uf  the  Statute  of 
Fraufls  or  not,  ami  it  is  necessary  to  sue 
u|ion  the  writing  itself,  there  you  cannot 
go  out  of  the   writing,  or  contradict   or 


alter  it  by  parol  proof,  and  consequently 
cannot  recover  against  a  party  not  named 
in  the  writing;  but  where  tlie  contract  of 
sale  has  been  executed  so  that  an  action 
may  be  maintained  for  the  price  of  the 
goods  irrespective  of  the  writing,  there  the 
party  who  has  had  the  benefit  of  the  sale 
raaj-  be  held  liable,  unless  the  vendor, 
knowing  who  the  principal  is,  has  elected 
to  consider  the  agent  his  debtor."  The 
true  principle  upon  which  thi.s  seeming 
contrariety  of  opinion  ma}'  be  reconciled, 
would  ap{)ear  to  be  that  laid  down  in  this 
case  of  Fenly  v.  Stewart,  and  may  be 
stated  thus  :  where  a  contract  is  reduced 
to  writing,  and  an  action  is  brought  upon 
the  writing  itself,  no  otlicr  persons  can  be 
made  parties  than  those  named  in  the  in- 
strument, but  when  a  right  of  action  exists 
independent  of  the  writing,  which  is  merely 
offered  as  cric/cnce  tending  among  other 
things,  to  estaljlish  that  right,  then  the 
party  having  the  legal  interest  or  liability, 
and  fur  whom  the  contract  was  actually 
made,  may  sue  or  be  sued,  although  not 
named  in  the  writing.  But  Ilubbert  v. 
Borden,  6  Whart.  79  ;  Violett  r.  Pow- 
ell, 10  B.  Mon.  347;  Brooks  r.  Mintum, 
1  Cala.  481  ;  and  Cothay  v.  Feniiell,  10 
B.  &  Cress.  G71,  arc  authorities  to  show 
that  an  umiamed  principal  may  come  in  to 
take  the  btittjit  of  a  written  contract  with 
an  agent,  who  acted  in  his  own  name. 

(I>)  Evans  r.  Wells,  22  Wend.  324  ; 
Pincknev  v.  Ilagadorn,  1  Ducr,  (X.  Y.) 
89  ;  Andrews  i\  Estes,  2  Fairfield,  267. 
The  undisclosed  ]jrincipal,  however,  can 
never  come  in  and  take  advantage  of  a 
written  contract  entered  into  by  his  agent 
in  a  case  where  the  latter  has  distinctly 
described  himself  in  the  writing  «.s  princi- 
pol.  Lucas  V.  Dc  La  Com-,  1  M.  &  Sel. 
249;  2  Grecnl.  Evid.  ^  281.  In  Humble 
V.  Hunter,  12  Queen's  Bench,  310,  which 
was  an  action  of  assumpsit  on  a  charter- 
party  executed,  not  by  the  plaintiff,  but 
by  a  third  person,  who  in  the  contract  de- 
scribed himself  as  "owner"  of  the  ship, 
it  was  /ii'hl,  that  evidence  was  not  admis- 
sible to  show  that  such  ])ei"son  was  the 
plaintirt-s  agent. 

('■)  8  Pick.  56  ;  and  see  Northampton 
Bank  v.  Pci)Oon,  11  Mass.  288,  292. 

[53] 


49- 


THE   LAW    OF    CONTRACTS. 


[book  I. 


SECTION    V. 

DURATION   AND   EXTENT   OF   AUTHORITY. 

Where  there  is  an  authority  expressly  given  or  implied  by 
law,  it  is  important  to  determine  its  extent,  scope,  and  duration. 
Where  a  principal  has  held  one  out  as  his  general  agent,  or 
authorized  parties  so  to  regard  him  by  continued  acquiescence 
and  confirmation,  we  have  said  that  the  principal  caimot  limit 
or  qualify  his  own  liability  by  instructions,  or  limitations,  given 
by  him  to  his  agent,  and  not  made  known  in  any  way  to  par- 
ties acting  with  such  agent,  (d)  And  where  an  agent  is  em- 
ployed to  transact  some  specific  business,  and  only  that,  yet  he 
binds  his  principal  by  such  subordinate  acts  as  are  necessary  to, 
or  are  usually  and  properly  done  in  connection  with  the  princi- 
pal act,  or  to  carry  the  same  into  effect,  (e)  But  an  agent  is 
not  at  liberty  to  exercise  his  discretion  in  the  choice  of  a  mode 
of  performing  the  duty  imposed  upon  him ;  for  he  must  adopt 
that  mode,  and  that  only,  which,  if  he  be  a  general  agent,  is 
fixed  either  by  usage  or  by  the  orders  of  his  principal,  or, 
if  he  be  a  particular  agent,  by  his  principal's  orders  alone,  (ee) 


((/)  Pickerino:  v.  Busk,  15  East,  38; 
Whitehead  r/'Tuckett,  15  East,  400; 
Commercial  Bank  v.  Kortriglit,  22  Wend. 
•348  ;  Mann  v.  Commission  Co.  15  Johns. 
44;  Hatch  v.  Taylor,  10  New  Hamp. 
538;  Lobdell  v.  Baker,  1  Mete.  193; 
Nickson  v.  Brohan,  10  Mod.  109;  Eun- 
•quist  V.  Ditchell,  3  Esp.  64 ;  Precious  v. 
Abel,  1  Esp.  350 ;  Howard  v.  Howard, 
11  How.  Pr.  Rep.  80;  Lloyd  v.  West 
Branch  Bank,  15  Pcnn.  172;  Chouteaux 
V.  Leach,  18  Pcnn.  224. — E  coiwerso,  it 
would  seem  that  a  third  party  dealing  with 
an  agent  cannot  have  the  benefit  against 
the  principal  of  a  private  arrangement  be- 
tween the  latter  and  tlio  agent,  of  which 
such  third  party  neither  knew  nor  was  en- 
titled to  know.  See  Acey  v.  Fernie,  7  M. 
&  W.  151. 

(e)  Tredwen  v.  Bourne,  G  M.  &  W. 
461  ;  Lord  Elhniborongh,  Helyear  v. 
Hawke,  5  Esp.  75  ;  Withington  v.  Her- 
ring, 5  Bing.  442  ;  Goodson  v.  Brooke,  4 

[54] 


Camp.  163  ;  Barnctt  v.  Lambert,  15  M.  & 
W.  489  ;  Denman  v.  Bloomer,  1 1  111. 
177;  Franklin  v.  Ezell,  1  Sneed,  497. 
So  where  the  government  is  the  principal 
and  a  statute  the  letter  of  authority. 
United  States  ?'.  Wyngall,  5  Hill,  16.— 
If  a  party  authorizes  a  broker  to  buy 
shares  for  him  in  a  particular  market, 
where  the  usage  is,  that  when  a  purchaser 
does  not  pay  for  his  shares  within  a  given 
time,  the  vendor,  giving  the  purchaser 
notice,  may  resell  and  charge  him  with 
the  difference ;  and  the  broker,  acting 
under  the  authority,  buys  at  such  market 
in  his  own  name ;  sucli  bi'oker,  if  com- 
pelled to  pay  a  difference  on  tiie  shares 
through  neglect  of  his  principal  to  supply 
funds,  may  sue  the  princijial  for  money 
])aid  to  his  use.  Pollock  r.  Stal)lcs,  12 
Queen's  Bench,  765 ;  Bayliti'e  v.  Butter- 
worth,  1  Exch.  425. 

(ee)  Daniel    v.    Adams,    Ambl.    495. 
And   the  incidental  means   the  agent  re- 


CII.  III.] 


AGENTS. 


*o0-*51 


All  authority -to  sell  does  not  carry  with  it  "authority  to  sell  on 
credit,  tyiless  such  be  the  usage  of  the  trade  ;  but  if  there  be 
such  usage,  then  the  agent  may  sell  on  credit  unless  specially 
instructed  and  required  to  sell  only  for  cash.  (/)  And  if  he 
sells  for  credit,  having  no  authority  to  do  so,  he  becomes  per- 
sonally responsible  to  his  principal  for  the  whole  debt,  (g-)  So 
is  he  also  if  he  blends  the  accounts  of  his  princij)al  with  his 
own,  or  takes  a  note  payable  to  himself,  (/t)     *If  an  agent  to 


sorts  to  in  carrying  out  his  authority 
must  he  tiiose  wiiich  u.fualli/  attcnil  an 
agency  of  that  kind:  if  an  extratu'dinary 
exigence  occur  he  has  no  right  to  have 
recourse  to  extraordinary  means  to  meet 
it.  Hawtayne  v.  Bourne,  7  M.  &  W. 
595. 

(/)  Holt,  C.  J.,  Anon.  12  Mod.  514; 
Lord  Elleiiborou(jh,  Wiltshire  v.  Sims,  I 
Camp.  258  ;  Van  Alen  v.  Vanderpool,  6 
Johns.  K.  69  ;  Kohertson  v.  Livingston, 
5  Cow.  R.  47.3;  James  v.  jMcCrcdic,  1 
Bay,  294  ;  Delafield  r.  Illinois,  2G  Wend. 
22;i;  Stoddard  I'.  Mellwain,  7  Kich.  Law, 
525;  ^f<ll<■ll,,^.,  in  Greely  v.  Bartlet,  1 
Greenl.  B.  172,  179,  stated  the  rule  of  the 
huv  merchant  to  he  that  a  factor  jnay  sell 
the  goods  of  his  principal  on  a  re;isonable- 
credit  unless  restrained  by  instructions  or 
a  si)ceial  usage. 

{(/)  Barksdalc  v.  Brown,  1  Nott  & 
McCord,  517;  Walker  r.  Smith,  4  Dal- 
las, 389.  And  the  principal  may  also 
maintain  trover  against  the  vendee.  Holt, 
C.  J.,  Anon.  12  :Mod.  514;  and  see 
Wiltshire  v.  Sims,  1  Camj).  258.  —  An 
agent  to  sell  has  no  ])0wer  to  harter,  and 
if  he  undertake  to  do  so,  the  principal 
may  recover  the  goods,  although  the 
party  receiving  them  was  ignorant  that 
the  agent  was  not  the  owner.  Guerreiro 
V.  Peile,  3  B.  &  Aid.  G16.  — A  simple 
antliority  to  sell  will  not  authorize  a  sale 
at  auction.  Towle  r.  Lcavitt,  3  Foster, 
(X.  II.)  301). — And  it  seems  an  authority 
to  sell  at  auction  will  not  support  a  pri- 
vate sale,  although  more  he  thus  ohtahied 
than  the  agent  was  limited  to  in  case  of 
an  auction  sale.  Daniel  v.  Adams,  Ambl. 
495.  —  At  common  law  an  agent  cannot 
)dedgc  the  guods  of  his  ju-incipal  without 
special  authority.  I'atcrsou  r.  Tash,  2 
Stra.  117S  ;  Dau!)ignv  r.  Duval,  5  T.  11. 
G()4  ;  D,'  Boucliout  r.  Goldsmid,  5  Ves. 
211;  Hodiiijuez  v.  Ilcirernm  ui,  5  Johns. 
Ch.  417;  Bott  v.  McCoy,  20  Ala.  578. 
This  has  heen  moditicd  in  England  by 
various  statutes,  (4  Geo.  4,  c.  83 ;  6  Geo. 


4,  c.  94  ;  5  &  G  Vict.  c.  39).  See  Xavnlshaw 
V.  Brownrigg,  7  E.  L.  &  E.  1 1 1 ,  S.  C.  13  id. 
2G1.  And  in  several  States  of  this  Union 
statutoiy  enactments  have  been  made  pro- 
viding that  any  consignee,  agent,  or  fac- 
tor, having  possession  of  merchandise 
with  authority  to  sell  the  same,  or  having 
possession  of  any  liill  of  lading,  ])crmit, 
certiticate,  or  order  fur  the  delivery  of 
merchandise  with  the  like  authority,  shall 
be  deemed  the  true  owner  tliereof  so  as  to 
give  validity  to  the  sale,  disposition,  or 
pledge  of  sudi  merchandise,  as  security 
for  any  advances,  negotialile  pajjcr,  or 
other  obligation  given  on  faith  thereof. 
JIaine  R.  S.  (1841 ),  ch.  43,  .sect.  2  ;  Mass. 
Su])pl.  10  R.  S.  ch.  216,  §  3;  Pub.  Laws 
of  K.  L  (1844),  1).  280,  sect.  2  ;  N.  Y.  R. 

5.  (1846),  vol.  ii.  part  2,  ch.  4,  tit.  v.  ^  1 
-3;  Laws  of  Tenn.  (1846),  cli.  cccexvii. 
3.  —  By  the  statutes  of  some  of  the  States 
the  pledgee  cannot  retain  the  merchandise 
if  he  had  notice  that  the  factor  was  not 
the  true  owner  before  he  made  the  ad- 
vances, for  which  the  merchandise  was 
l)ledged  as  security.  But  the  statute  of 
^lass.  provides  that  the  jdedge  shall  hold 
good,  "  notwithstanding  the  person  mak- 
ing such  advances  ui)on  tlie  faith  of  such 
deposit  or  ])ledge  nniy  have  had  notice 
that  the  person  with  whom  he  made  such 
contract  wa.s  only  an  agent,"  provided  the 
pledgee  make  the  ailvanccs  in  good  faith, 
believing  that  the  agent  hail  authority  to 
enter  into  the  contract.  —  If  the  merciian- 
disc  was  ])ledged  to  secure  antcrcilcnt  ad- 
vaiiccs,  the  idcdgee  acipiires  no  other  right 
or  interest  in  the  pledge  than  was  pos.sess- 
cd  or  could  have  been  entinved  by  the 
agent  or  factor  at  the  time  of  making  the 
pledge.  ISIaine  U.  S.  (IS41 ),  cli.  43,  sect. 
3  ;  Mass.  Sup.  to  R.  S.  cli.  216,  sect.  4; 
Tub.  Laws  of  R.  I.  (1844),  p.  280,  sect.  3  ; 
N.  Y.  R.  S.  (184G),  vol.  ii.  part  2,  ch.  4, 
tit.  5,  j  4;  Laws  of  IVnn.  (1846),  ch. 
cccexvii.  4. 

(h)  Svmington  i-.  [McLin,  1  Dev.  &Bat. 
291.     See/ws/,  page  81  {j). 

[00] 


51- 


THE   LAW   OP   CONTRACTS. 


[book  I. 


whom  goods  are  intrusted  for  a  particular  purpose,  sell  the  same 
to  a  person,  or  in  a  manner  not  within  the  scope  of  liig  author- 
ity, the  principal  may  disaffirm  the  sale  and  recover  the  goods 
of  the  vendee,  if  he  have  not  justified  the  vendee  in  believing 
the  authority  of  the  agent,  (i)  If  the  power  of  an  agent  be 
given  by  a  written  instrument,  which  instrument  is  known  to 
the  party  contracting  with  him,  such  instrument  must  be  fol- 
lowed strictly,  and  cannot  be  varied  or  enlarged  by  evidence  of 
usage. (j)  An  agent  employed  to  answer  particular  questions, 
and  withholding  some  facts  material  to  the  contract,  about 
which  no  questions  are  asked,  does  not  thereby  vitiate  the  con- 
tract; (k)  it  would  be  otherwise  if  such  agent  were  employed 
to  make  the  contract.  (/) 

It  has  been  held  that  a  power  to  sell  carries  with  it  a  power 
to  warrant;  (m)  but  we  think  it  the  better  rule,  that  an  agent 
employed  to  sell,  without  express  power  to  warrant,  cannot  give 
a  warranty  which  shall  bind  the  principal,  unless  the  sale  is  one 
which  is  usually  attended  with  warranty,  in  which  case  he 
may.  {ii)  And  in  such  case,  if  the  principal  gives  his  agent 
express  instructions  not  to  warrant,  and  the  agent  does  warrant, 
although  it  has  been  said  that  such  warranty  is  not  binding  on 
the  principal,  on  the  general  ground  that  no  principal  is  bound 
by  the  acts  of  his  agent  if  such  acts  transcend  his  authority,  (o) 
yet  the  better  opinion  is  that  the  principal  is  bound  by  such 
warranty,  where  the  buyer  was  justified  by  the  nature  of  the 
case  in  believing  that  this   authority  was   given,  and   had  no 


(/)  Teters  v.  BiiUistier,  3  Pick.  495 ; 
Nasli  r.  Drew,  5  Cash.  422. 

(/)  Duhitield  v.  Illinois,  26  Wend. 
192. 

(k)  Huckman  v.  Fcrnic,  3  M.  &  W. 
50.5. 

(/)  Everett?'.  Desl)orouuh,  5  Bing.  503  ; 
Fitzlicrhert  J'.  Mather,  1  T.  R.  12. 

(?«)  Nelson  V.  Cowino-,  6  Hill,  N.  Y. 
330  ;  Wooilford  v.  jMeClcnahan,  4  Oil- 
man, 85  ;  Hunter  r.  Jameson,  6  Iredell, 
252  ;  Franklin  r.  E/.ell,  1  Sneed,  497. 

(h)  Gibson  r.  Colt,  7  Johns.  390  ;  Hel- 
year  v.  Hawke,  5  lisp.  72 ;  Croom  v. 
Shaw,  1  Flor.  211.  A  sale  by  sample  is 
a  warranty  that  the  hulk  shall  correspond 
with  tlie  sample  ;  and  a  general  authority 
to  sell  goods  at  wholesale  is  an  authority 

[56] 


to  sell  by  sample.  Andrews  i\  Kneeland, 
6  Cowen,  354.  An  agent  to  sell  a  horse 
may  warrant  his  soundness.  Alexander 
V.  Gibson,  2  Camp.  555  ;  Bradford  v.  Bush, 
10  Alabama,  386.  In  Alabama,  au 
authority  to  sell  a  slave  has  been  held  to 
ini])ly  an  authority  to  warrant.  Skinner 
V.  Gunn,  9  Porter,  305  ;  Gaines  v.  MeKin- 
Icy,  1  Alabama,  446.  But  an  agent  to 
deliver  has  no  authority  to  warrant. 
Woodin  V.  Burford,  2  Cr.  &  M.  291,  4 
Tyr.  264.  In  judicial  sales  there  is  no 
warranty  express  or  implied.  The  JMonte 
Allegre,  9  Wheat.  616. 

(o)  Lord  Keiiyon,  Fenn  v.  Harrison,  3 
T.  R.  760;  Dodikridge,  C.  J.,  Seignior 
and  Wolmer's  case,  Godbolt,  361. 


CH.  III.] 


AGENTS. 


*52 


means  of  knowing  the  limitation  of  the  *  authority  of  the 
agent,  (p)  The  usage  of  the  trade  or  business  is  of  great  im- 
portance in  determining  these  questions;  but  one  distinction 
seems  to  be  taken  between  the  case  of  a  written  authority  and 
that  of  an  oral  authority,  namely,  where  the  authority  is  oral 
and  is  known  to  the  party  dealing  with  the  agent,  usage  may 
enlarge  and  affect  the  contract ;  but,  as  has  been  already  stated, 
usage  has  not  tliis  power  where  the  whole  authority  is  in  writ- 
ing, and  is  known  as  such  to  the  party  dealing  with  the 
agent,  {q) 

If  a  principal  sells  goods  by  an  agent,  and  the  agent  makes  a 
material  misrepresentation  which  he  believes  to  be  true,  and  his 
principal  knows  to  be  false,  this  is  the  falsehood  of  the  principal 
and  avoids  the  sale,  (r) 


(/))  Ashurst,  J.,  Feiin  v.  Ilun-ison,  3 
T.  K.  760,  who  said  :  "  I  take  the  distinc- 
tion to  he  that  if  a  pci-son  kecpiiif;-  livery- 
stables,  and  having  a  liorse  to  sell,  directed 
his  servant  not  to  warrant  him,  and  the 
servant  did  nevertheless  wan-ant  him,  still 
the  master  would  he  liable  on  the  warranty, 
because  the  servant  was  actinp:  within  the 
general  sco])c  of  his  authority,  and  the 
public  cannot  be  sup])osed  to  be  cognizant 
of  any  jjrivate  conversation  between  the 
iniLster  and  servant ;  but  if  the  owner  of  a 
horse  were  to  send  a  stranger  to  a  fair 
with  express  directions  not  to  warrant  the 
horse,  and  the  latter  acted  contrary  to  the 
orders,  the  purchaser  could  only  have  re- 
course to  the  person  wlio  actually  sold  the 
horse,  and  the  owner  would  not  be  liable 
on  the  warranty,  because  the  servant  was 
not  acting  within  the  scope  of  his  employ- 
'mcnt."  So  ])cr  liai/lci/,  J.,  Pickering  v. 
Busk,  15  East,  45. 

('/)  Attw(jod  r.  Munnings,  7  B.  &  Cress. 
278,  S.  C.  1  M.  &  ]{yl.  06  ;  Schimniel- 
pennich  /•.  Bayard,  1  IVt.  264. 

(r)  Schneider  r.  Heath,  ;3  Camp.  506. 
And  this  is  true  although  tlie  representa- 
tions are  of  such  a  character  that  the  prin- 
cipal is  not  i)ound  by  them  ;  for,  as  was 
said  by  Lord  Ahiiuirr  in  Cornfoot  r.  I'owke, 
0  iSI.  &  W.  ■586  :""  It  docs  not  follow  that 
because  he  is  not  bound  by  the  representa- 
tion of  an  agent  witliont  autliority,  he  is 
thercfoi"e  entitled  to  bind  another  man  to 
11  contract  obtained  by  the  false  represen- 
tation of  that  agent.  It  is  one  thing  to 
sav  that  he  may  avoid  a  contract  if  liis 
agent,  without  his  authority,  has  inserted 


a  warranty  in  the  contract ;  and  another 
to  say  that  he  may  enfcjrce  a  contracWtb- 
tained  by  means  of  a  false  reprcscntafion 
made  by  his  agent,  because  the  agent  had 
no  autliority."  Cornfoot  v.  Fowke,  0  M. 
&  W.  358,  was  an  assumpsit  for  the  non- 
performance of  an  agreement  to  take  a 
ready-funiished  house.  The  jilaintiff  liad 
employed  C.  to  let  the  house  in  question, 
and  the  defendant  being  in  treaty  with  C. 
for  taking  it,  was  infcrmed  by  him  that 
there  was  no  objection  to  the  liouse  ;  but 
after  entering  into  the  agreement,  dis- 
covered that  the  adjoining  house  was  a 
brothel,  and  on  that  account  declined  to 
fullil  the  contract.  It  appeared  that  the 
plaintilf  knew  of  the  existence  of  the 
brothel  before,  but  C,  the  agent,  did  not. 
The  majority  of  the  c(MU-t  laid,  contrary  to 
the  opinion  of  Lord  Ahitujcr,  C.  B.,  that 
these  facts  furnished  no  ground  of  defence 
to  the  action.  This  case  has  l)een  very 
much  (lucstii)ned  from  the  lirst,  and  was 
overruled  in  Fuller  v.  Wilson,  3  Queen's 
Bench,  58.  The  judgment  in  the  latter 
case  was  indeed  reversed  in  the  Kxche(iuer 
Chamber,  3  Q.  B.  68,  but  not  on  this 
point ;  Lord  Al'iii'ja-  there  saying,  3  Q.  B. 
7G  :  "  The  judgment  of  the  Court  of 
(Queen's  Bench  on  the  motion  to  enter  a 
venlict  was  not  given  upon  the  facts  now 
before  us.  We  shall  not  reverse  that  if 
we  give  judgment  now  for  the  plaintiff  in 
error."  In  this  country,  Cornfoot  x\ 
Fowke  was  denied  to  be  law  by  the  court 
in  Fitzsimmons  v.  Joslin,  21  \'enn.  129. 
And  in  Crimii)  r.  U.  S.  Mining  Co.,  7 
Grattan,  352,  where  the  ]ilaintiffs  author- 

[57] 


53 


THE    LAW    OF    CONTRACTS. 


[book  I. 


SECTION    VI. 

THE   RIGHT   OF   ACTION   UNDER   A   CONTRACT. 

In  contracts  by  deed  no  jsarty  can  have  a  right  of  action 
under  them  but  the  party  whose  name  is  to  them ;  (s)  but  in 
the  case  of  a  simple  contract  an  undisclosed  principal  may 
show  that  the  apparent  party  was  his  agent,  and  may  put  him- 
self in  the  place  of  his  agent,  {I)  but  not  so  as  to  affect  injuri- 
ously the  rights  of  the  other  party,  (ti)  How  far  this  rule  is 
affected  by  the  Statute  of  Frauds  will  be  considered  here- 
after, (y)  By  parity  of  reasoning,  an  undisclosed  principal, 
subsequently  discovered,  may  be  made  liable  on  such  con- 
tract ;  (iv)  but  in  general,  subject  to  the  qualification  that  the 


izcd  their  agent  to  procure  subscriptions 
to  a  prospectus  in  the  form  of  a  subscrip- 
tion paper  for  the  sale  of  stock  in  their 
gold  mining  companj'  upon  the  terms  pre- 
scribed in  such  prospectus,  representing 
the  mines  to  be  in  full  and  successful 
operation,  with  se«ral  particulars  of  de- 
scription and  recommendation,  and  ix'fer- 
ring  to  the  last  report  of  the  directors  of 
the  company  for  a  full  description  of  tlie 
mines,  buildings,  and  machinery,  which 
paper  was  signed  by  the  defendants ;  it 
Avas  Iield  that  they  might,  in  an  action 
upon  the  contract,  prove  that  the  agent  at 
the  time  of  procuring  their  subscriptions, 
made  representations  in  addition  to  those 
contained  in  the  prospectus  and  reports  of 
the  company,  upon  the  faith  of  which  the 
defendants  became  subscribers,  but  which 
representations  were  false  and  fraudulent ; 
although  it  was  insisted  by  the  ]ilauitilfs 
that  tlie  authority  of  their  agent  was  lim- 
itcil  and  defined  by  the  prospectus  and 
re])ort. 

(s)  Green  v.  Home,  1  Salk.  197;  Fron- 
tin  V.  Small,  2  L.  Ravm.  1418. 

(0  Skinner  v.  Stocks,  4  B.  &  Aid.  437  ; 
Cotliay  r.  Fennell,  10  B.  &  Cress.  671  ; 
The  Duke  of  Norfolk  v.  Worthy,  1  Camp. 
337;  Garrett  v.  Handler,  4  B.  &  Cress. 
6G4;  Davis  v.  Boardman,  12  Mass,  R. 
80 ;  Rutland  Railroad  v.  Cole,  24  Verm. 
33  ;  Higgins  v.  Senior,  8  M.  &  W.  834 ; 
Whitmore  v.  Gilmour,  12  M.  &  AV.  808, 


where  a  bankrupt,  under  the  circum- 
stances of  the  case,  was  considered  agent 
for  his  assignees. 

(i()  George  v.  Clagett,  7  T.  R.  359; 
Sims  V.  Bond,  5  B.  &  Ad.  389 ;  Warner 
V.  jNIcKay,  1  M.  &  W.  .591  ;  Huntingdon 
V.  Knox,  7  Cush.  371  ;  Violett  v.  Powell, 
10  B.  jMon.  349.  And  see  Harrison  v. 
Ruscoc,  15  M.  &  W.  231. 

(v)  And  sec  p.  48*  note  (a)  sup?-a.  See 
also  Bank  of  United  States  ik  Lyman,  in 
United  States  Circuit  Court,  1848,  (re- 
ported 20  Verm.  6GG,  673,  C74,)  where 
the  doctrine  of  Lord  Aln'iK/er  and  Baron 
Parke  in  Beckham  r.  Drake,  9  M.  &  W. 
79,  was  recognized  by  Prentiss,  J. 

(w)  Thompson  v.  Davenport,  9  B.  & 
Cress.  78;  Cothay  v.  Fennell,  10  B.  & 
Cress.  671 ;  Thomas  v.  Edwards,  2  M.  & 
W.  216;  Bcebe  v.  Robert,  12  Wend. 
413  ;  Upton  r.  Gray,  2  Greenleaf,  R.  373  ; 
Nelson  v.  Powell,  3  Doug.  410;  Hopkins 
r.  Lacouture,  4  Louis.  64  ;  Hyde  v.  Wolf, 
4  Louis.  234  ;  Bacon  v.  Sondley,  3  Strob. 
L.  542.  —  The  part}'  dealing  with  the 
agent  may,  when  he  discovers  the  prin- 
cipal, charge  eitlier  at  his  election.  Thomp- 
son V.  Davenport,  9  B.  &  C,  78  ;  Wilson 
r.  Hart,  7  Taunt.  295  ;  Railtou  v.  Hodg- 
son, 4  Taunt.  576,  note  (u) ;  Robinson  v. 
Gleadow,  2  Bing.  N.  C.  161 ;  Patcrson  v. 
Gandascqui,  15  East,  62;  Higgins  v. 
Senior,  8  M.  &  W.  834.  But  where  a 
vendor  takes  the  note  of  the  agent,  which 


[58] 


cir.  in.] 


AGENTS. 


•54 


state  of  the  account  between  the  principal  and  agent  is  not 
altered  to  the  detriment  of  the  principal,  (x)  It  might  be  sup- 
posed that  the  party  dealing  with  an  agent  whose  agency  is 
concealed,  does  not  lose  his  election  to  have  recourse  either  to 
the  agent,  or  to  his  discovered  principal,  if  the  principal  has 
prematurelij  settled  with  his  agent,  even  without  fraud ;  as 
where  the  agent  bought  on  one  month's  credit,  and  the  prin- 
cipal paid  him  before  the  credit  had  expired,  (y)  But  it  may 
be  open  to  question  whether  such  settlement  by  *the  principal, 
although  premature,  if  perfectly  bond  fide,  in  the  course  of  busi- 
ness, and  free  from  all  suspicion  that  it  had  been  hastened  for 
the  purpose  of  interfering  with  the  seller,  would  not  discharge 
the  principal.     We  think  it  would. 


SECTION    VII. 

LIABILITY    OF   AX   AGENT. 

An  agent  is  not  personally  liable,  unless  he  transcends  his 
agency,  or  departs  from  its  provisions,  (c)  or  unless  he  expressly 
pledges  his  own  liability,  [a)  or  unless  he  conceals  his  character 


sliows  liim  to  rely  upon  the  ajrcnt,  he  can- 
not afterwards  sue  the  principal.  Pater- 
son  t'.  Gandasequi,  15  East,  C2  ;  Hyde  r. 
Paige,  9  Barb.  150;  Bate  v.  Burr,  4  Ilar- 
rinir.  130. 

[x)  Tiiompson  v.  Davenport,  9  B.  & 
Cress.  78;  Lord  FJlenhnrowjh,  Kymcr  v. 
Suwercrojip,  1  Camp.  109. 

(y)  Kymer  v.  Suwercroj>p,  1  Camp. 
lO'J;  Warinj;  v.  Favenck,  1  Camp.  85; 
Ileald  r.  Kenworthy,  28  E.  L.  &  E.  537. 

(:)  Fceter  r.  Jleath,  11  Wend.  477; 
Johnson  ?>.  Ogilhy,  .")  P.  Wni.s.  279  ;  Jones 
I".  Downnian,  4  (Queen's  Bench,  235,  note 
(a).  The  decisii)n  of  the  (Jueen's  Bench 
in  this  case  was  afterwards  reversed  in  the 
Exchequer  Chanihcr  on  a  special  jjjround, 
but  the  doctrine  of  law  docs  not  seem  to 
be  iinpuj^ned.  —  But  the  tleparture  from 
authority,  to  charj^e  the  agent,  must  not 
be  known  to  the  other  contracting  party. 
Story  on  Agency,  ^  2G5,  recognized  I)y 
Lord  Deiimnii,  Jones  i\  Downman,  4  Q. 
B.  239. 


(a)  If  an  agent,  executing  a  contract  in 
■writing,  use  language  whose  legal  effect  is 
to  charge  him  jjcrsonally,  it  is  not  com- 
jietent  for  iiim  to  exonerate  himself  l)y 
showing  tliat  he  acted  for  a  principal,  anil 
that  the  other  contracting  ])arty  knew  this 
fact  at  tiie  time  when  the  agreement  was 
made  and  signed.  Magee  r.  Atkinson,  2 
M.  &  W.  440  ;  Jones  r.  Littledale,  6  Ad. 

6  Ell.  485 ;  Higgins  ?•.  Senior,  8  M.  & 
W.  8.34;  Appleton  r.  Binks,  5  East,  148, 
which  was  the  case  of  a  contract  under 
seal;  Ciiadwick  v.  Madon,  12  E.  L.  .<:  E. 
ISO;  Tanner  v.  Christian,  29  E.  L.  &  E. 
103;  Hancock  v.  Fairfield,  30  Maine, 
299.  See  also  Duvail  r.  Craig,  2  Wheat. 
50 ;  Tippets  v.  Walker,  4  Ma-s.  595 ; 
Forster  r.  Fuller,  f.  Mass.  58 ;  White  v. 
Skinner,  13  Johns.  .307  ;  Stone  c.  V/ood, 

7  Cowen,  453  ;  Andrew  v.  Allen,  4  Har- 
ring.  452 ;  Potts  r.  Hendei-son,  2  Cart. 
(Ind.),  327  ;  Fash  v.  Ross,  2  Hill  (S.  Car.), 
294. 

[59] 


55* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


of  agent,  (b)  or  unless  he  so  conducts  as  to  *render  his  principal 
inaccessible  or  irresponsible,  (c)  or  unless  he  acts  in  bad  faith. 
If  he  describes  himself  as  agent  for  some  unn«imed  principal,  he 
is  of  course  liable  if  proved  to  be  the  real  principal,  (cc)  And 
one  acting  as  agent  is  liable  personally,  if  it  be  shown  that  he 
acts  without  authority,  (d)     Whether  an  agent  makes  himself 


(b)  Franklyn  v.  Lamond,  4  Com. 
Bench,  6.37,  where  it  was  lichl  tliat  the 
fact  of  selling  as  aitdiuneers  was  not  such 
an  indication  of  agency  as  to  absolve  the 
defendants  from  personal  responsibility. 
—  In  an  action  for  use  and  occupation  of 
lands  by  the  sutfei-ance  and  permission  of 
the  plaintiffs,  it  appeared  that  the  lands 
were  let  by  auction  by  the  plaintiffs,  E. 
and  T.,  who  were  auctioneers,  to  the  de- 
fendant, under  conditions  which  stated  the 
letting  to  be  "  By  E.  and  ^9.,  auction- 
eers." One  of  the  conditions  was,  "  The 
rent  is  to  be  paid  into  the  hands  of  E.  or 
T.,  auctioneers,  or  to  their  order,  at  two 
payments,"  &c.  At  the  foot  of  the  docu- 
naent  was  written,  "  approved  by  me, 
David  Jones."  Jones  was  the  tenant  at 
the  time  of  the  sale.  jSTothing  else  ap- 
peared in  the  conditions  to  show  on  whose 
behalf  the  letting  was.  The  plaintiffs 
gave  evidence  to  show  that  Jones,  being 
indebted  to  them,  had  authorized  them  to 
let  the  lands  as  above,  pay  the  rent  due  to 
Jones's  landlord,  and  retiiin  any  surplus 
in  satisfaction  of  their  own  debt.  Evi- 
dence to  a  contrary  effect  was  given  by 
the  defendant.  The  judge  in  summing 
up  left  it  to  the  jury  whether  the  plaintiffs 
had  let  the  lands  on  their  own  behalf  and 
as  creditors  of  Jones,  or  merely  as  his 
agents.  The  jury  found  a  letting  hy  the 
plaintiffs  on  their  own  belialf.  Held,  that 
the  conditions  imported  a  letting  by  Jones, 
E.  and  T.  acting  as  his  agents ;  and  that 
the  document  ought  to  have  been  so  ex- 
plained to  the  jury.  And  a  new  trial  was 
granted.  Evans  v.  Evans,  3  A.  &  El. 
132.  —  The  agent  is,  perhaps,  in  like 
manner  liable  (at  the  option  of  the  party 
contracting  with  him)  if  he  do  not  state 
tlic  name  of  the  principal,  and  notwith- 
standing the  other  contracting  party  have 
the  means  of  knowing  the  i)rincipal. 
Thomson  ?•.  Davenport,  9  B.  &  Cress.  78  ; 
Owen  r.  Gooch,  2  Esp.  5G7  ;  Raymond  v. 
Pro]jrietors  of  Crown  and  Eagle  Mills,  2 
Mete.  319;  Winsor  v.  Griggs,  5  Cush. 
210;  Taintor  v.  Prendergast,  3  Hill,  72. 
(c)  AshursI,  J.,  Fcnn  v.  Harrison,  3  T. 

[GO] 


R.  761  ;  Savage  v.  Rix,  9  New  Hamp. 
263 ;  Sydnor  v.  Hurd,  8  Tex.  98 ;  Keen- 
er V.  Harrod,  2  Maryl.  03. 

(cc)  Schmalz  v.  Averv,  3  E.  L.  &  E. 
391  ;  Carr  v.  Jackson,  1()  E.  L.  &  E.  526. 

{(l)  Dusenberry  v.  Ellis,  3  Johns.  Cas. 
70 ;  Byars  v.  Doores,  20  Missouri,  284 ; 
Baijleij,  B.,  Thomas  v.  Hewes,  2  C.  & 
Mee.  530,  note  (a).  And  a  subsequent 
ratification  it  seems  will  not  (always  at 
least)  excuse  him.  Rossiter  v.  Rossiter, 
8  Wend.  494;  Palmer  v.  Stephens,  1 
Den.  471. — If  A,  supposing  B  to  be 
agent  for  C  in  the  matter,  enter  with  him 
into  a  contract  which  is  illegal  if  the  con- 
tract of  C,  but  is  not  illegal  if  B's  personal 
contract,  and  it  turn  out  that  B  acted 
without  authority,  the  illegality  of  the 
supposed  contract  is  no  bar  to  an  action 
by  A  against  B  ;  for  the  contract  actiially 
made  contained  no  illegality.  Parke,  B., 
Thomas  v.  Edwards,  2  M."  &  W.  217.— 
It  is  perhaps  doubtful  whether  or  not  a 
party  contracting,  witliout  authority,  as 
agent  for  another,  and  giving  the  name  of 
the  principal,  can  afterwards  himself  en- 
force the  contract  as  principal.  Strictly, 
it  would  seem  he  cannot.  Even  admit- 
ting that  the  agent  thus  acting  without 
authority,  might  be  held  liable  npon  the 
contract  as  principal,  because  he  acted  in 
his  own  wrong,  yet  it  docs  not  follow 
that  he  himself  should  be  allowed  to  take 
advantage  of  the  wrong.  And  this  ap- 
])cars  to  have  been  the  view  of  Lord  El- 
lenborourjh,  C.  J.,  and  Abbott,  J.,  in  Bick- 
erton  v.  Burrell,  5  M.  &  Scl.  383 ;  though 
the  decision  in  that  case  wa,s  put  on  the 
narrower,  ami  somewhat  unsatisfactory 
ground,  that  the-  ])laintiff  had  not  notifiexl 
tlie  defendant,  previous  to  bringing  the 
action,  of  his  claim  to  the  character  of 
principal.  —  If  the  other  ])arty,  after 
knowledge  of  the  true  state  of  the  matter, 
elect  to  act  under  the  contract,  it  is  clear 
that  he  has  waived  his  right  to  object  that 
it  was  not  made  originally  with  the  plain- 
tiff as  principal.  In  Rayncr  v.  Grote,  15 
M.  &  W.  359,  the  plaintiff  made  a  written 
contract  for  the  sale  of  goods,  in  which  he 


en.  III.]  AGENTS.  *56 

liable  who  transcends  his  authority,  or  acts  without  authority, 
but  believes  in  good  faith  that  he  has  such  authority,  may  be 
not  absolutely  settled.  It  must  depend  upon  the  question 
whether  he  is  regarded  as  always  warranting  his  possession  of 
authority.  Where  an  agent  fraudulently  *misrepresents  his 
authority,  with  the  purpose  of  deception,  there  it  is  equally 
clear  that  he  is  liable  Icffa/li/  as  it  is  that  he  is  liable  morally. 
But  where  he  verily  believes  himself  to  possess  the  authority 
under  which  he  acts,  but  is  mistaken  on  this  point,  then  a  de- 
ciding test  of  his  liability  may  perhaps  be  found  in  his  means 
of  knowledge.  If  he  could  have  known  the  truth,  and  did  not 
through  his  own  fault,  then  he  is  ignorant  by  his  own  wrong. 
And  if  an  injury  is  to  result  from  this  ignorance,  either  to  a 
third  party  or  to  him,  and  the  third  party  is  wholly  innocent,  it 
ought  to  fall  on  him  who  so  represented  himself  as  agent,  be- 
cause he  was  not  therein  wholly  innocent.  He  was  not  guilty 
of  intentional  deception,  but  he  was  guilty  of  deception  in  fact, 
and  if  this  was  caused  by  his  want  of  care  or  want  of  dili- 
gence, or  by  his  negligence  in  any  Avay,  he  must  bear  the  bur- 
den of  it.  And  this  is  what  we  should  infer  from  some  of  the 
cases  in  which  it  is  said  that  an  agent  who  states  that  which 
he  does  not  know  to  be  true,  places  himself  under  the  same  lia- 
bility as  one  who  states  what  he  knows  to  be  not  true.  It  may 
be  meant  that  he  states  what  he  does  not  know  to  be  true,  and 
by  proper  diligence  and  care  might  have  known  to  be  not  true. 
But  the  question  still  remains,  whether  the  agent  is  liable  where 
he  himself  has  been  deceived  wholly  without  his  fault,  —  as  by 
a  forged  letter  which  he  could  not  detect.  The  case  must  be 
very  rare  in  fact,  where  one  acting  as  an  agent  is  wholly  with- 
out the  means  of  ascertaining  his  own  agency.  But  we  incline 
to  the  opinion,  as  resting  on  the  better  reason,  that  he  would 


described  liimself  as  the  agent  of  J.  &  T. ;  with  knowli'(l<,'C  that  the  plaiiitiflT  was  tlie 
the  huyers  accejitcd  part  of  the  goods,  real  seller,  and  all  parties  tlien  tirated  the 
and  the  jilaintitV  (who  in  reality  was  liini-  contract  as  one  made  with  the  jjlaintil^'  as 
self  princi|)ul  in  tlie  transaction,  and  not  j)rincipal  in  the  transaction,  the  jilaintiff 
agent  for  J.  &  T.)  t)rought  an  action  iu  was  entitled  to  recover,  and  upon  this  in- 
his  own  name  against  the  liiiyers  for  rcfiLS-  structiou  a  verdict  having  been  rendered 
ing  to  accept  the  remainder.  At  nisi  jirins  for  the  plaintitl',  tlie  court  licld  that  the 
the  jury  were  instructed  that  if  tlie  defend-  case  was  properly  left  to  the  jury,  and  re- 
ants  received  the  lirst  portion  of  goods,  fused  to  disturb  the  verdict. 

VOL.  I.  6  [  Gl  j 


57* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


still  be  held.  If  he  and  the  third  party  with  whom  he  deals, 
are  both  perfectly  innocent,  still  the  loss  resulting  from  his 
want  of  authority  must  fall  sornewhere  ;  and  it  seems  just  that 
it  should  rest  on  him  who  has  assumed,  innocently  but  yet 
falsely,  that  he  possessed  this  authority,  (e) 

*The  question  then  occurs  whether  in  such  a  case  the  agent 
can  be  held  on  the   contract,  and  it  has  been  so  decided.  (/) 


(c)  In  roUiill  V.  Walter,  3  B.  &  Ad. 
114,  the  right  of  action  is  held  to  be 
grounded  on  an  affirmation  of  authority 
which  the  affirnier  knew  to  be  false  ;  and 
if  he  acted  under  an  authority  which  was 
forged,  but  which  he  believed  genuine,  he 
would  not  be  responsible.  Story  (Agency, 
sect.  263,  note  2,)  says,  "  the  "distinction 
of  Lord  Tentcrden  (in  the  above  case)  is 
entirely  overthrowni  by  Smout  v.  Ilbery, 
10  Mees.  &  W.  7."  We  do  not  so  under- 
stand this  case.  There  the  family  of  Mr. 
Ilbery  was  supplied  with  provisions  by 
Smout.  Ilbery  was  lost  in  a  voyage  to 
India,  in  Oct.  1839;  the  provisions  -were 
supplied  both  before  and  after  his  death ; 
and  the  action  was  brought  against  the 
widow.  A  principal  question  was,  whether 
she  was  liable  for  the  provisions  supplied 
after  the  death  of  Ilbery,  and  before  it  was 
known.  Alderson,  B.,  in  giving  the  opin- 
ion of  the  court,  says,  "  There  is  no 
ground  for  saying,  that  in  representing 
her  authority  as  continuing,  she  did  any 
wrong  whatever.  There  was  no  mala  fides 
on  her  part  —  no  want  of  due  diligence  in 
acquiring  knowledge  of  the  revocation  — 
no  omission  to  state  any  fact  Avithin  her 
knowledge  relating  to  it,  and  the  revoca- 
tion itself  \vas  by  the  act  of  God."  On 
this  ground  she  was  held  not  liable.  But 
he  says  previously  "  that  where  a  ])arty 
making  the  contract  as  agent,  bond  fide 
believes  that  such  authority  is  vested  in 
liim,  but  has  in  fact  no  such  authority,  he 
is  still  personally  liable.  In  these  cases, 
it  is  true,  the  agent  is  not  actuated  by 
any  fraudulent  motives,  nor  has  he  made 
any  statement  which  he  knows  to  be  un- 
true. But  still  his  liability  depends  on 
the  same  principles  as  before.  It  is  a 
wrong  dilfering  only  in  degree,  but  not  in 
its  essence,  from  the  former  case,  to  state 
as  true  what  the  individual  making  such 
statement  does  not  know  to  be  true,  even 
though  he  does  not  know  it  to  be  false, 
but  believes  without  sufficient  grounds, 
that  the  statement  will  ultimately  turn  out 
to  be  correct."     It  cannot  be   doubted, 

[62] 


however,  that  the  court  intend  to  confine 
the  liability  of  the  supposed  agent  to  the 
case  where  he  not  only  had  no  authority, 
but  might  have  known  that  he  had  none. 
This  may  not  only  be  infeiTcd  from  the 
decision,  but  the  court  say  afterwards,  "  If, 
then,  the  true  principle  derivable  from  the 
cases  is,  that  there  must  be  some  wrong 
or  omission  of  right  on  the  part  of  the 
agent,  in  order  to  make  him  personally 
liai)le  on  a  contract  made  in  the  name  of 
his  principal,  it  will  follow  that  the  agent 
is  not  responsible  in  such  a  case  as  the 
present.  And  to  this  conclusion  M'e  have 
come."  We  doubt,  however,  the  law  of 
this  case,  and  prefer  the  view  stated  in  the 
text. 

(/)  This  question  lias  been  very  re- 
cently discussed  in  the  Queen's  Bench  in' 
the  case  of  Jenkins  v.  Hutchinson,  13  Jur. 
763,  S.  C.  13  Q.  B.  744.  That  was  an 
action  of  assumpsit  on  a  charter-part)^ 
which  purported  to  be  made  between  the 
plaintiff  on  the  one  part,  and  one  T.  A. 
Barnes  of  the  other  part,  and  was  signed 
"  Ralph  Hutchinson,  for  T.  A.  Barnes." 
It  appeared  that  Hutchinson  had  no  au- 
thority to  enter  into  the  charter-party  for 
Barnes,  and  it  was  therefore  contended 
that  he  was  personally  lialile  as  principal 
in  this  action,  but  the  court  held  other- 
wise. Lord  Z>e«ma?i  said  :  "  It  is  not  pre- 
tended that  the  defendant  had  any  interest 
as  jn-incipal ;  he  signed  as  agent,  intending 
to  bind  a  principal,  and  in  no  other  char- 
acter. That  he  may  be  liable  to  the 
plaintiff  in  another  form  of  action,  for  any 
damage  sustained  by  his  representing 
himself  to  he  agent,  when  he  was  not,  is 
very  possible ;  but  the  question  is  here, 
whether  he  can  be  sued  on  the  charter- 
party  itself,  as  a  party  to  it.  No  reported 
case  has  decided  that  a  party  so  circum- 
stanced can  be  sued  on  the  instniment 
itself.  Mr.  Justice  Story,  in  his  book  on 
the  Law  of  Agency,  states  that  the  decis- 
ions in  the  American  courts  are  conflict- 
ing on  this  point,  and  that  '  in  England  it 
is  held,  that  the  suit  must  be  by  a  special 


en.  III.] 


AGENTS. 


•58 


But  *we  think  it  the  better  opinion  that  the  contract  is  wholly- 
void.  It  is  not  the  contract  of  the  principal,  because  he  gave 
no  authority  to  the  supposed  agent.  It  is  not  the  contract  of 
the  agent,  for  he  professed  to  act  for  the  principal.  So,  if  one 
forges  a  signature  to  a  note,  and  obtains  money  on  that  note, 
he  cannot  be  held  on  it  as  on  his  promise  to  pay.  But  in  all 
such  cases  the  supposed  agent  may  be  reached  in  assumpsit  if 
money  be  paid  to  him  or  work  and  labor  done  for  him  under 
such  supposed  contract,  or  in  trespass  for  special  damages  for 


action    on   the   case ; '    citin<i:  Polhill  v. 
Walter,  3  B.  &  Ad.  114.     That  case  does 
not,  perhaps,  estahlisli  the  broad  proposi- 
tion ;  for  tlie  contract  -was  a  bill  of  ex- 
change—  >in  instrument  differinj^in  many 
respects  from  ordinary  contracts.     In  the 
absence  of  any  direct  anthority,  wc  think 
that  a  party  who  execntes  an  instrument 
in  the  name  of  another,  whose  name  he 
pnts  to  the  instrument,  and  adds  his  own 
name  only  as  agent  for  that  other,  cannot 
be  treated  as  a  party  to   that  instrument, 
and  be  sued  n])on  it,  unless  it  be  shown 
that  he  wa.s  the  real  principal."     Sec  also, 
Lewis  r.  Nicholson,  12  Eng.  Law  &  Eq. 
430.  —  The  law  is  so  held  in  Massachu- 
setts.    Long   i\   Colburn,    11    Ma.ss.  97; 
Ballon  r.  Talbot,  16  Mass.  461  ;  .lefts  v. 
York,  4   Cu-^h.  371.     And  in  Abbey   v. 
Chase,  6  Cnsh.  .56,  the  view  taken  in  the 
text  is  confirmed.     The  court  say :  "  It 
docs  not  necessarily  follow  that  a  contract 
made  liy  an  authorized  agent,  which  does 
not  bind  tlic  principal,  becomes  the  agent's 
contract,  and  nuikcs  him  answerable   if  it 
is  not  ])crformed.     This  depends  upon  the 
legal  effect  of  the  terms  of  the  contract. 
If  the  agent  employs  such  terms  as  legally 
import  an  undertaking  In'  the   principal 
onlv,  the  contract  is  the  principal's,  and  he 
alone  is  bound  by  it.     But  if  the  terms  of 
the  contract  legally  import  a  personal  un- 
dertaking of  the  agent,   and   not  of  the 
))rincipai,  then  it  is  the  contract   of  the 
agent,  and  he  alone  is  answeralilc  for  a 
breach  of  it.     So  wheli  one  who  has  no 
authonty  to  act   as  another's   agent,  as- 
sumes so  to  act,  and  makes  either  a  deed 
or  a  siin])le  contract  in  the  name  of  the 
other,  lie  is  not  jiersonally  lialtle  on  the 
covenants  in  the  deed,  or  on  the  promise 
in  the  simple  contract,  unless  it  contain 
apt  words  to  bind  him  personally.     The 
only  remedy  against  him  in  this  common- 
wealth, is  an  action  on  the  case  for  falsely 


assuming  anthority  to  act  as  agent."  In 
Maine,  Haq)er  v.  Little,  2  Grcenl.  14  ; 
Stetson  V.  Patton,  id.  3.58.  In  Connec- 
ticut, Ogden  V.  Kaymond,  22  Conn.  385. 
In  Indiana,  McIIeury  v.  Dulficld,  7 
Blackf  41.  And  in  I'ennsvlvania,  Hop- 
kins V.  Mehatty,  11  S.  &  R.'l26.  In  this 
case,  Gihson,  J.,  says  :  "  No  decision  can 
be  found  in  support  of  the  position,  that 
what  a])pcars  on  the  face  of  the  deed  to  be 
the  proper  covenant  of  the  principal,  but 
entered  into  through  the  agency  of  an 
attorney,  shall  l)e  taken  to  be  the  proper 
covenant  of  the  attorney,  whenever  he  had 
not  authority  to  execute  the  deed.  How 
could  he  be  declared  against  ?  If  in  the 
usual  and  ]iroper  manner  of  pleailing  it 
were  alleged  that  the  agent  had  covenanted, 
it  would  appear  by  the  production  of  the 
instrument  that  he  had  not,  but  that  his 
])rincipal  had  covenanted  through  his 
means ;  which,  on  von  est  firlum  being 
pleade<l,  would  be  fatal."  But  in  New 
York  the  courts  have  held  the  agent  per- 
sonally liable  on  the  contract  in  such  cases. 
Dusenbnrv  ?-.  Ellis,  3  Johns.  Cas.  70 ; 
White  r.  Skinner,  13  ,Iohns.  307  ;  Randall 
V.  Van  Vechten,  19  id.  60;  Mecch  v. 
Smith,  7  Wend.  31.5;  Palmer  c.  Stephens, 
1  Denio,  471.  But  .see  Walker  r.  Bank 
of  the  State  of  New  York,  13  Bari).  639, 
cimtnt.  The  agent  is  held  lial)lc  on  the 
contract  in  New  .Jersey  ;  Bay  r.  Cook,  2 
N.  J.  343.  In  New  IIam]>shire  the  court 
seem  to  have  taken  a  middle  course.  It 
is  there  held  that  if  a  person,  having  no 
authority  to  act  as  agent,  undertakes  so  to 
act  in  making  a  contract,  and  the  contract 
whii'h  he  makes,  rcjei'linii  what  he  irns  not 
autltorized  ti)  put  to  it,  contains  apt  wonls 
to  charge  himself,  he  is  personally  liable. 
Woodes  V.  Dennett,  9  N.  H.  5.5; "Savage 
V.  Rix,  id.  263  ;  Moor  v.  Wilson,  6  Post. 
332. 

[G3] 


59* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


SO  undertaking  to  act  for  another  without  authority,  or  in  some 
other  appropriate  action  ;  but  not  on  the  contract  itself. 

An  agent  who  exceeds  his  authority  renders  himself  liable  to 
the  whole  extent  of  the  contract,  although  a  part  of  it  was  within 
his  authority,  (g-) 


SECTION    VIII. 


REVOCATION  OF  AUTHORITY. 


It  is  a  general  principle,  that  an  authority  is  always  revocable ; 
the  principal  may  at  any  time  put  an  end  to  the  relation  be- 
tween himself  and  his  agent  by  withdrawing  the  authority,  (h) 
*But  where  third  parties  have  dealt  with  an  agent  clothed  with 


(9)  Feeter  v.  Heath,  11  "Wend.  477. 
But  in  Johnson  ?;.  Blasdale,  1  Smcdes  & 
Marshall,  1,  the  Court  of  Appeals  of  Mis- 
sissippi held  that  if  an  agent  in  tilling  up 
a  blank  note  exceed  his  authority,  and  the 
third  party  receive  the  note  with  knowl- 
edge that  the  authorit'y  has  been  tran- 
scended, the  note  will  not  be  void  in  toto, 
but  only  for  the  excess  beyond  the  sum 
which  was  authorized. 

(h)  Unless  the  authority  be  coupled  ivith 
an  interest,  or  given  for  valuable  considera- 
tion. It  is  to  be  noticed,  that  many  cases 
which  in  England  might  be  understood  as 
examj)les  of  an  authority  irrevocable  at  the 
pleasure  of  the  principal,  because  coupled 
with  an  interest,  would  not  in  this  coun- 
try be  classed  under  that  head,  owing  to 
the  general  adoption  here  of  the  defini- 
tion of  a  "  power  coupled  with  aa  inter- 
est," given  in  Hunt  v.  Rousmanier,  8 
Wheat.  201,  (see  post,  n.  (m)  ).  All  such 
cases,  it  seems,  can  be  considered  in- 
stances where  the  authority  cannot  be 
revoked  because  of  the  valuable  considera- 
tion moving  from  the  agent ;  as  where 
the  agent  had  begun  to  act  under  the 
;authority,  and  would  be  damnified  by 
its  recall,  or  where  the  authority  is  part 
of  a  security.  Walsh  v.  Whitcomb,  2 
Esp.  565  ;  Gaussen  v.  Morton,  10  B.  & 
Cress.  731  ;  Hodgson  v.  Anderson,  3  B. 
.&  Cress.  842  ;  Broomley  v.  Holland,  7 
Ves.  28  ;  Marryat  v.  Broderick,  2  M.  & 
"W.  371  ;  Eltham  v.  Kingsman,  1  B.  & 
Aid.  684 ;  Yates  v.  Hoppe,  9  Com. 
Bench,  541  ;    Ware,  J.,  United  States  v. 

[64] 


Jarvis,  Dist.  Court  of  Maine,  1846,  4 
N.  Y.  Leg.  Obs.  301.  And  see  Brown 
V.  McGran,  14  Pet.  479,  495  ;  Story  on 
Agencj',  sects.  466,  467,  468,  where  the 
opinions  of  the  civilians  are  cited ;  but 
compare  2  Kent,  Comm.  644.  Fabens  v. 
The  Mercantile  Bank,  23  Pick.  330, 
seems  to  be  the  case  of  a  power  irrevoc- 
able by  the  principal,  both  because  given 
for  consideration  and  because  coupled 
with  an  interest  in  the  sense  of  Chief 
Justice  Marshall.  Whether  after  ad- 
vances made  by  a  factor,  his  authority  to 
sell  the  goods  of  the  principal  to  the  ex- 
tent of  those  advances,  is  revocable  at 
the  pleasure  of  the  principal,  is  a  ques- 
tion upon  whicli  the  authorities  are  not 
agreed.  In  Brown  v.  McGran,  14  Pet. 
479,  it  was  held  that  the  authority  to  sell 
is  not  revocable  in  such  a  case.  The  de- 
cisions in  the  State  Courts,  so  far  as 
they  go,  ap])car  to  be  in  substantial 
agreement  with  Brown  v.  McGran.  If 
the  original  authority,  on  consideration 
of  which  the  advances  were  made,  was 
an  authority  to  sell  at  a  limited  price,  it 
seems  plain  that  the  fact  of  the  advances 
does  not  alter  that  authority.  It  con- 
tinues an  authority  to  sell  on  certain 
terms,  and  as  such,  on  the  doctrine  of 
the  Supreme  Court,  may  be  held  irrevo- 
cable to  the  extent  of  the  consideration 
given  for  It,  that  is,  to  the  amount  of  the 
advances.  Some  of  the  State  courts 
have  gone  a  step  further  in  this  direction, 
and  held  that  an  authority  to  sell  at  a 
limited  price  may  be   converted  into  a 


en.  III.] 


AGENTS. 


*60 


general  powers,  whose  acts  have  therefore  bound  his  principal, 
and  the  principal  revokes  the  authority  he  gave  his  agent,  such 
principal  will  continue  to  be  bound  by  the  further  acts  of  his 
agent,  unless  the  third  parties  have  knowledge  of  the  revoca- 
tion, or  unless  he  does  what  he  can  to  make  the  revocation 
as  notorious  and  generally  known  to  the  world  as  was  the 
fact  of  the  agency,  (i)  This  is  usually  done  by  'advertising, 
and  usage  will  have  great  effect  in  determining  whether  such 
principal  did  all  that  was  incum.bent  on  him  to  do  to  make  his 
revocation  notorious.  And  third  parties  who  never  dealt  with 
such  agent  before  such  revocation,  if  they  as  a  part  of  the  com- 
munity were  justified  in  believing  such  agency  to  have  existed, 
and  had  no  knowledge  and  no  sufficient  means  of  knowledge 
of  the  revocation,  may  hold  the   principal  liable  for  the  acts  of 


(general  authority  to  sell,  by  the  foct  of 
advances  in  conjunction  with  the  fact  of 
the  ucfrlect  of  the  consignor,  after  rea- 
sonalilc  notice,  to  repay  the  advances. 
Parker  r.  Brancker,  22  Tick.  40  ;  Froth- 
inghani  v.  Evertun,  12  N.  H.  239.  See 
also  Blot  V.  Boiveau,  3  Comst.  78.  This 
subject  has  recently  come  before  the 
Court  of  Common  Bench  in  England  in 
Smart  r.  Saiuhirs,  5  C.  B.  89.5,  wliere  it 
was  decided  tiiat  a  factor's  authority  to 
sell  is  revocal)le  at  the  will  of  tiie  con- 
signor, notwithstanding  advances  to  the 
full  value,  and  a  rer|uest  of  repayment 
uncomplied  witii.  Brown  v.  Mctjran 
had  been  cited  in  the  .argument;  H'ildi', 
C.  J.,  delivering  the  judgment  of  the 
court  said,  (p.  918):  "In  the  present 
case  the  goods  arc  consigned  to  a  factor 
for  sale.  That  confers  an  imj)lied  author- 
ity to  sell.  Afterwards  the  factor  makes 
advances.  This  is  not  an  authority 
coupled  witli  an  interest  l)ut  an  indejien- 
dcnt  authc)rity,  and  an  interest  sul)se- 
cjuently  arising.  Tiie  nuiking  of  sucli  an 
advance  may  be  a  good  consideration  for 
an  agreement  that  the  authority  to  sell 
sliall  i>e  no  hmgcr  rcv()cal)le ;  but  sucli  an 
eficct  will  not,  we  tliink,  arise  indepen- 
dently of  agreement.  There  is  no  au- 
thority or  prlnci]>ie  in  our  law,  tiiat  we 
are  awarc  of,  which  leads  us  to  think  it 
will.  If  such  be  the  law,  where  is  it  to 
be  found  ?  It  was  said  in  argument,  that 
it  was  the  common  practice  of  factors  to 
sell,  in  order  to  repay  advances.  It'  it  be 
true  tiiat  there  is  a  well-understood  prac- 
tico   with   factors   to    sell,   that    practice 

6* 


miglit  furnish  a  ground  for  infeiring  that 
the  advances  were  made  upon  the  footing 
of  an  agreement  that  the  factor  should 
have  an  irrevocaltle  authority  to  sell,  in 
case  tlie  ])rincipal  made  default.  Such 
an  inference  might  l)e  a  very  reasonable 
and  proj)cr  one ;  but  it  would  be  an  in- 
ference of  fact,  and  not  a  conclusion  of 
law."  See  also  lialeigh  v.  Atkinson,  6 
M.  &  W.  670. 

((■)   Hazard  v.    Trcadwell,    Stra.    506; 

V.  Harrison,  12  Mod.  340  ;  Bitlkr,' 

J.,  Salte  V.  Field,  5  T.  K.  21.5  ;  Spencer 
v.  Wilson,  4  IMiinf.  l.'?();  Morgan  r. 
Stell,  5  Binn.  305.  —  Wiiere  an  agency 
constituted  by  writing  is  revoked,  but  the 
written  authority  is  left  in  tlie  hands  of 
the  agent,  and  lie  subsequently  exhibits  it 
to  a  third  person  who  deals  with  him  as 
agent  on  the  faith  of  it  without  any  notice 
of  the  revocation,  the  act  of  the  agent, 
within  the  scope  of  the  authority,  will 
bind  the  j)rinciiial.  Beard  r.  Kirk,  11  N. 
II.  397.  This  necessity  for  actual  notice 
of  revocation,  or  a  general  notoriety 
C(|uivalent  to  notice,  has  been  held  to  ex- 
ist in  full  force  in  the  case  of  an  authority 
im])]icd  from  cohabitation,  joined  with 
the  iirevious  saiu'tion  of  acts  of  agency 
jierformed  by  the  person  held  forth  as 
wife.  That  the  tradesman  furnishing  the 
goods  in  such  a  case  has  knowledge  that 
tlie  woman  is  only  a  mistress,  does  not 
aft'ect  his  right  to  notice  of  separation. 
]?yan  v.  Sams,  12  Q.  B.  460,  where 
Munro  r.  l)e  Chemaut,  4  Camp.  215, 
was  commented  on. 

[G5] 


6r 


THE   LAW    OF   CONTRACTS. 


[book  I. 


the  agent  after  revocation  ;  (j)  as  in  the  case  of  a  partnership, 
where  the  dii^solution  or  change  of  parties  was  not  properly 
made  known,  [k) 

The  death  of  the  principal  operates  per  se  a  revocation  of 
the  agency.  (/)  But  not  if  the  agency  is  coupled  with  an 
*interest  vested   in  the  agent,  (m)     Then  it  survives,  and  the 


(  /)  See  last  note. 

(k)  Graham  v.  Hope,  1  Peake,  154; 
Parkin  v.  Carrntlicrs,  3  Esp.  248 ;  Ward- 
well  V.  Hai.nlit,  2  Barl).  S.  C.  K.  549. 

(/)  Co.  Litt.  §  66  ;  Hunt  v.  Kousmanicr, 
8  Wheat.  201  ;  Watson  v.  King,  4  Camp. 
272;  Lepard  v.  Vernon,  2  V.  &  Beam. 
51 ;  Smout  r.  Ilbery,  10  M.  &  W.  1  ;  Bux- 
ton V.  Jones,  1  M.  &  Gr.  84 ;  Campan- 
ari  V.  Woodburn,  28  E.  L.  &  E.  321  ; 
Rigs  V.  Cage,  2  Humph.  (Tenn.)  R.  350. 
In  Cassiday  v.  McKenzie,  4  W.  &  Serg. 
282,  it  was  held,  in  opposition  to  the  cur- 
rent of  authority,  that  a  payment  made 
by  an  agent,  after  the  death  of  liis  princi- 
pal, he  being  ignorant  thereof,  was  valid 
as  an  act  of  agency.  Lunacy  of  the  jin'n- 
-czpo/ revokes,  but  tlie  better  oi)inion  (ac- 
cording to  Ch.  Kent,  2  Comm.  645,)  is, 
that  the  fact  of  the  existence  of  lunacy 
must  have  been  previously  established  by 
inquisition  before  it  could  control  the  op- 
eration of  the  power;  and  see  Bell's 
Comment,  on  the  Law  of  Scotland,  sect. 
413. — In  Davis  v.  Lane,  10  New  Hamp. 
156,  it  was  held,  that  the  authority  of  an 
agent,  where  the  agency  is  revocable, 
ceases,  or  is  suspended,  by  the  insanity  of 
the  principal,  or  his  incapacity  to  exercise 
any  volition  upon  the  subject-matter  of 
the  agency,  in  consequence  of  an  entire 
loss  of  mental  power ;  but  that  if  the 
principal  has  enabled  the  agent  to  hold 
himself  out  as  having  authority,  by  a 
written  letter  of  attorney,  or  by  a  previous 
■employment,  and  the  incapacity  of  the 
principal  is  not  known  to  those  who  deal 
with  the  agent  within  the  scope  of  the 
authority  he  appears  to  possess,  tiie  prin- 
•cipal  and  those  who  claim  under  him, 
may  be  precluded  from  setting  up  the  in- 
sanity as  a  revocation.  The  Court  in  this 
case  also  held,  that  the  principle,  that  in- 
sanity operates  as  a  revocation,  cannot 
apply  where  the  power  is  coujiled  with  an 
interest,  so  that  it  can  be  exercised  in  the 
name  of  the  agent.  Whether  it  is  appli- 
. cable  to  the  case  of  a  power  which  is  part 
of  a  security,  or  executed  for  a  valuable 
consideration,  was  left   undecided.      See 

[66] 


Jones  V.  Noy,  2  M.  &  K.  125  ;  Waters  v. 
Taylor,  2  Ves.  &  B.  301  ;  Huddlestone's 
case,  2  Ves.  Sen.  34,  1  Swanst.  514,  n. ; 
Sayer  v.  Bennett,  1  Cox's  Cas.  107. — 
Iiaiiknij)tri/  of  tlie  principal  revokes  the 
authority.  Parker  v.  Smith,  16  East, 
382;  Minett  v.  Forrester,  4  Taunt,  541. 
Defendant  being  in  the  employment  of  J. 
in  his  trade,  sold,  bond  fide,  some  goods 
belonging  to  J.,  after  J.  had  committed 
an  act  of  bankruptcy,  of  which  defendant 
was  ignorant.  The  sale  was  more  than 
two  months  before  the  commission  issued. 
Defendant  acted  under  a  general  author- 
ity. The  assignee  brought  trover.  Held, 
on  a  plea  of  not  guilty,  that  defendant, 
having  sold  nnder  a  general  authority 
onlv,  had  been  guilty  of  a  conversion. 
Pearson  v.  Graham,  6  Ad.  &  El.  899.  — 
Marriage  of  fime  sole  principal  revokes. 
White  V.  Giftbrd,  1  Kol.  Abr.  Authoritie 
E.  pi.  4;  Charnleyu.  Winstanley,  5  East, 
266. 

(m)  Hunt  V.  Rousmanier,  8  Wheat. 
201  ;  Bergen  v.  Bennett,  1  Gaines's  Cas. 
1  ;  Smyth  r.  Craig,  3  W.  &  S.  14 ;  Cas- 
siday V.  McKenzie,  4  W.  &  S.  282; 
Knapp  V.  Alford,  10  Paige,  205.  The 
important  question  is  what  constitutes  an 
authorilij  coupled  with  an  interest ;  and 
here  there  is  some  diversity  in  judicial 
definition.  In  Hunt  i\  Rousmanier,  8 
Wheat.  201,  it  was  held  {Marshall,  C.  J., 
giving  the  ojnnion  of  the  court)  that  the 
interest  which  can  protect  a  power,  after 
the  death  of  the  person  who  creates  it, 
must  be  an  interest  in  the  thinr/  Itself  on 
which  the  power  is  to  be  exercised,  and 
not  an  interest  in  that  which  is  produced 
by  the  exercise  of  the  power.  —  In  Smart 
V.  Sandars,  5  C.  B.  895,  917,  Wilde,  C.  J., 
said  that,  "  Where  an  agreement  is  enter- 
ed into  on  a  sufficient  consideration, 
whereby  an  authority  is  given  for  the  pur- 
]iose  of  securing  some  benefit  to  the 
donee  of  the  authority,  such  an  authority 
is  irrevocable.  This  is  what  is  usually 
meant  by  an  authority  coupled  with  an  in- 
terest :  "  —  that  is,  irrevocable  except  by 
the  death  of  the  principal ;  for  the  dictum, 


en.  m.]  AGENTS.  ^62 

agent  may  do  all  that  is  necessary  to  realize  his  interest  and 
make  it  beneficial  to  himself;  nor  is  such  agency  revocable  at 
the  pleasure  of  the  principal  in  iiis  lifetime,  (//)  and  if  the  agent 
dies  it  passes  over  to  his  representatives,  (o)  It  is,  in  such 
case,  an  important  if  not  a  decisive  question,  whether  the  act 
authorized  could  be  performed  by  the  agent  in  his  own  name, 
or  only  by  him  as  an  agent,  and  in  the  name  of  the  principal. 
In  the  first  case,  if  an  interest  were  coupled  with  the  agency, 
the  authority  would  survive  the  death  of  the  principal,  and  the 
agent  might  perform  the  act  in  the  same  manner  after  the  death 
as  before.  In  the  latter  case,  as  he  could  no  longer  use  the 
name  of  the  principal,  for  the  obvious  reason  that  one  who  is 
dead  can  no  longer  act,  it  would  seem  that  his  right  must  be 
limited  to  that  of  requiring  the  representatives  of  the  deceased 
to  perform  the  act  necessary  for  his  protection. 


♦SECTION    IX. 

now     THE     PRINCIPAL    IS     AFFECTED     BY    THE    MISCONDUCT    OF    IHS 

AGENT. 

A  principal  is  liable  for  the  fraud  or  misconduct  of  his  agent, 
so  far,  that,  on  the  one  hand,  he  cannot  take  any  benefit  from 
any  misrepresentation  fraudulently  made  by  his  agent,  although 
the  principal  was  ignorant  and  innocent  of  the  fraud  ;  (yy)  and 

as  the  whole  case  shows,  is  to  be  taken  in  87;    Fuller    v.    Jocelvm,    2    Stra.    882; 

connection  with  tlie  doctrine,  nnderstood  Hcapy  v.  Parris,  6  T.  W.  368. 
still  to  j)rcvail  in  Enj^land,  on  the  author-         (h)  Gausscn  v.  Morton,  10  B.  &  Cress, 

ity  of  Lord  Jillenlm-ouf/k,  in   Watson  v.  7.li  ;    Walsh   i\    Whitcomh,   2   Esp.    R. 

Kinp,  (4  Camp.  272,)  that  death  revokes  56.");  Allen  v.  Davis,  8Eng.  (Ark.)  29, 
even   a  power  con|>k'd  with  an   interest.  [o)  2  Kent,  Conini.  643. 

See  ante,  note  (//).     A  warrant  of  attor-         (/<)  Attorney-General  r.  Ansted,  12  M. 

ney  to  confess  jud^'inent  is  not  rcvocalile  ;  &  W.  520  ;  Fitzherbert  v.   Mather,  1  T. 

and  thoui;h  deterniinaiile  by  di'dt/i,  yet,  .-xt  11.    12  ;     Seaman    i\    Fonereau,    2    Stra. 

common  law,  as   a   judgment  entered  up  1183;  Fitzsimmons   t>.  Joslin,   21   Verm, 

during  any  term,  or  the  suljscqueut  vaca-  129.     "  I  have  no  doubt  that  if  an  agent 

tion,  related  to  the  first  <luy  of  such  term,  of  a   jiarty,   say  of  Mr.  Attwood  in   this 

a  wan-ant   of    attorney    might    be    made  case,  without  his  knowledge,  made  a  wil- 

availalile  after  the  death  of  the  principal,  fully    false    representation  to    the   Bn'fish 

by  entering  up  judgment  within  the  term  Iron   Company,   upon   which    representa- 

and  vacation  in  which  thcfleatb  occurred,  tion  they  acted,  '  ii(l/ii(n iitm  jidim,'  and  on 

Lord  Holt,  Oadcs  v.  Woodward,  1  iSalk.  that  confidence  had  formed  a  contract ; 

[G7] 


63* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


on  the  other  hand,  if  the  party  dealing  with  the  agent  suffers 
from  such  fraud,  the  principal  is  bound  to  make  him  compen- 
sation for  the  injury  so  sustained ;  (q)  and  this  although  the 
principal  be  innocent,  (r)  provided  the  agent  *acted  in  the 
matter  as  his  agent,  and  distinctly  within  the  line  of  the  busi- 
ness intrusted  to  him.  (s)  And  though  there  be  no  actual 
fraud  on  the  part  of  the  agent,  yet  if  he  makes  a  false  representa- 
tion as  to  matter  peculiarly  within  his  own  knowledge  or  that 


—  I  have  no  hesitation  whatever  in  say- 
ing, that  against  that  contract,  equity 
woukl  relieve  just  as  much  as  if  there  was 
the  scienter  of  the  principal  proved  ;  be- 
cause it  is  not  a  question  of  criminal  re- 
sponsibility which  is  here  raised  by  the 
facts.  The  agent  could  not  commit  the 
principal  to  any  criminal  purpose,  if  the 
principal  did  not  know  it,  and  had  not 
either  given  him  an  authority  or  adopted 
his  act  when  he  did  know  it.  But  as  to 
the  civil  effect  of  vitiating  the  contract 
made  iqion  that  false  representation,  I 
have  no  doubt  whatever  that  it  would 
vacate  it  just  as  much,  with  the  igno- 
rance of  the  principal,  as  if  he  were 
charged  with  knowing  it,  and  as  if  the 
agent  had  been  an  agent  for  this  pur- 
pose." Lord  Broughaia  in  Attwood  w. 
Small,  6  C.  &  Fin.  448.  Sec  also,  Tay- 
lor w.  Green,  8  C.  &  Payne,  316;  Olm- 
sted V.  Hotailing,  1  Hill,  (N.  Y.)  317; 
Vcazie  v.  Williams,  8  How.  134,  3  Story, 
611. 

{q)  Holt,  C.  J.,  in  Hern  v.  Nichols,  1 
Salk.  289,  and  Ellenborour/h,  C.  J.,  in 
Crockford  v.  Winter,  1  Camp.  124,  lay 
down  the  broad  doctrine  that  a  principal 
is  answerable  civiliier,  tliough  not  crimi- 
naliter,  for  the  fraud  of  his  agent.  Jeffrey 
V.  Bigelow,  13  Wend.  518,  illustrates  the 
general  doctrine.  There  the  defendants 
had  been  in  partnership  with  one  Hunt, 
for  speculation  in  sheep,  they  contributing 
funds,  and  he  time  and  services.  Hunt 
purchased  some  sheep  diseased  with  the 
seal),  knowing  the  fact,  and  mixed  them 
with  a  larger  numl^cr  belonging  to  the 
partnership.  Subsequently  Hunt  assign- 
ed his  interest  to  defendants,  who  em- 
ploj^ed  S.  to  sell  the  sheep.  The  flock 
was  purchased  from  S.  by  the  plaintiff', 
and  mixed  with  the  sheep  he  before 
owned.  The  scab  broke  out  among 
them  and  destroyed  many  sheep,  of  his 
old  stock  as  well  as  of  tiiose  jnirchased 
from  S. ;  and  considerable  expense  was 

[68] 


incurred  in  the  attempt  to  an-est  the  dis- 
ease. S.  was  av,'arc  of  the  infected  con- 
dition of  the  flock,  but  no  actual  knowl- 
edge was  proved  upon  the  defendants. 
Held,  that  itiaintiff"  was  entitled  to  main- 
tain his  action,  and  could  I'ecover  dam- 
ages for  the  loss  both  of  the  sheep  pur- 
chased, and  of  the  other  sheep  receiving 
the  infection,  and  all  other  damages  nec- 
essarily and  naturally  flowing  from  the 
act  of  the  defendants'  agent.  Semble,  the 
liability  of  the  defendants  would  have 
been  the  same  if  S.  had  been  ignorant  of 
the  state  of  the  flock ;  the  knowledge  of 
Hunt  when  he  bought  the  diseased  sheep 
being  constructively  the  knowledge  of  his 
partners,  and  his  assignment  of  his  in- 
terest to  the  defendants,  before  the  sale  to 
the  plaintiff,  making  no  difference,  as  to 
their  responsibility.  See  also,  Johnston 
V.  Soutli- Western  Railroad  Bank,  2 
Strob.  Eq.  263;  Mitchell  v.  Mims,  8 
Tex.  6. 

(r)  Irving  v.  Motley,  7  Bing.  543 ; 
Doe  V.  Martin,  4  T.  R.  39,  66 ;  Edwards 
V.  Footner,  I  Camp.  530.  Where  an 
attorney's  clerk  had  simulated  tlie  court 
seal  upon  a  writ,  by  taking  an  impres- 
sion from  the  seal  upon  another  writ,  the 
writ  and  all  proceedings  thereon  were  set 
aside,  and  the  attorney,  although  person- 
ally blameless  was  compelled  to  pay  the 
costs.  Dunkley  r.  Farris,  20  E.  L.  &  E. 
285 ;  Hunter  v.  The  Hudson  River  Iron 
and  Machine  Co.  20  Barb.  493. 

(s)  Pcto  v.  Hague,  5  Esp.  135;  Huck- 
man  v.  Fernie,  3  M.  &  W.  505.  — In 
Woodin  V.  Burford,  2  Cr.  &  Mee.  392, 
Bayley,  B.,  said  :  "  What  is  said  by  a 
servant  is  not  evidence  against  the  master, 
unless  he  has  some  authority  given  him  to 
make  the  representation."  It  is  not  meant, 
as  the  case  shows,  that  there  must  be  an 
express  authority  to  make  tliat  particular 
representation ;  but  the  authority  may  be 
implied  as  incident  to  a  general  author- 
ity. 


en.  III.]  AGENTS.  *64 

of  his  principal,  and  thereby  gets  a  better  bargain  for  his  princi- 
pal, such  principal,  although  innocent,  cannot  take  the  benefit 
of  the  transaction,  (t)  But  the  third  party  may  rescind  the 
contract,  and  recover  back  any  money  he  may  have  paid  the 
principal,  by  reason  of  his  confidence  in  such  misrepresentation. 


SECTION    X. 


OF   NOTICE   TO   AX   AGENT. 

A  principal  is  affected  by  notice  to  his  agent,  respecting  any 
matter  distinctly  within  the  scope  of  his  agency,  when  the  no- 
tice is  given  before  the  transaction  begins,  or  before  it  is  so  far 
completed  as  to  render  the  notice  nugatory,  (w)  The  notice  to 
the  agent  may  be  implied  as  well  as  express.  Knoicledge  ob- 
tained by  the  agent  in  the  course  of  that  very  transaction  is 
notice;  and  it  has  been  said,  that  knowledge  obtained  in 
another  transaction,  but  so  short  a  time  previous  *that  the  agent 
must  be  presumed  to  recollect  it  is  also  notice  affecting  the 
principal ;  (y)  but  this  is  questionable,  [vv)  This  matter  has 
been  most  discussed  in  cases  where,  in  consequence  of  the 
employment  of  solicitors  or  counsel  in  the  purchase  of  real  es- 

(I)  Willos  r.  Glover,  4  B.  &  Pul.  14  ;  her  title  ;  especially  as  she  had  paid  the 

Ashhurst,  J.,  Fit/.herhert  v.  Mather,  1  T.  consideration   for  the  conveyance  out  of 

R.  16;  Franklin  ;•.  Ezell,  1   Snecd,  497;  her  separate  estate.     Snvder  r.  Sponable, 

National  Exchanf;e  Co.  v.  Drew,  32  E.  1  Hill,  (X.  Y.)  ."jfi?,  S."C.  atlirmed  in  er- 

L.  &  E.  1  ;  Carpenter  r.  Aincr.  Ins.  Co.  ror,  7  Hill,  427.     It  seems  a  i)rincii)al  is 

1  Story,  57.     An<l  it  seems  the  purchaser,  char<;ceai)le  with  notice  of  what  is   known 

without    rescinding    the     contract,    may  to  a  siib-tKjenl,  how  many  dci^rees  soever 

maintain  case  for  deceit  apainst  the  prin-  removed,  such  suh-a.i;ent  being  appointed 

cipal.     Fuller  v.  Wilson,  .3  Q.  B.  .58.  by  his  authority.     Sec  Boyd  v.  Vander- 

(h)  Bank  of  the  United   States  v.  Da-  kemp,  1   Barb.  "Ch.  287.     As  to  the  time 

vis,  2   Hill,   (N.   Y.)    K.   451.     Notice  to  when  notice  may  be  piven,  see  Tourvillo 

one  of  .several  joint  jiurchasers,  whatever  v.  Naish,  3  P.  Wms.  .'307  ;   Story  v.  Lord 

be  the  nature  of  the   estate  they  take,  is  Windsor,  2  Atk.  030  ;  More  v.  Mayhow, 

not  in  general  notice  to  the  rest,  unless  he  1  Ch.  Cas.  34 ;  Wigg  v.  Wigg,  1  Atk. 

who  receives  the  notice  be  their  a^ent ;  384. 

and  where  notice  was  given  to  a  husband,         (v)  Lord  LitngdnJc,  M.  R.,  Hargreaves 

at  the   time  of  taking   a  conveyance   of  r.    Bothwcll,    1     Keen,    159.     Aiul    see 

lands  to  himself  and  wife,  of  a  ])rior  un-  Mountford  v.  Scott,  3  Madd.  34. 
registered  mortgage,    it  was  helil    not   to         (?t)  New  York  Central  Ins.  Co.  r.  Tho 

operate  as  notice  to  the  wife,  so  as  to  give  National  Protective  Ins.    Co.   20   Barb, 

the  mortgage  a  preference  in  respect  to  408. 

[69] 


65* 


THE   LAW   OP  CONTRACTS. 


[book  I. 


tate,  the  question  has  arisen  how  far  the  clients  are  affected 
with  notice  of  incumbrances,  or  defects  of  title,  which,  by  a 
more  or  less  strong  presumption,  must  be  taken  to  have  come 
to  the  knowledge  of  their  agents.  Two  propositions  seem  to 
be  well  settled  :  the  first,  that  the  notice  to  the  solicitor,  to  bind 
the  client,  must  be  notice  in  the  same  transaction  in  which  the 
client  employs  him,  or  at  least,  during  the  time  of  the  solicitor's 
employment  in  that  transaction ;  (w)  the  other,  that  where  a 
purchaser  employs  the  same  solicitor  as  the  vendor,  he  is 
affected  with  notice  of  whatever  that  solicitor  had  notice  of,  in 
his  capacity  of  solicitor  for  either  vendor  or  purchaser,  in  the 
transaction  in  which  he  is  so  employed,  (x)  The  first,  it  is  evi- 
dent, is  so  far  qualified  by  the  second,  that  where  the  circum- 
stance of  the  solicitor's  being  employed  for  two  parties  is  in  the 
case,  a  purchaser,  in  the  language  of  Sir  J.  Wigram,  may  be 
affected  with  notice  of  what  the  solicitor  knew  as  solicitor  for 
the  vendor,  although  as  solicitor  for  the  vendor  he  may 
have  acquired  his  knowledge  before  he  was  retained  by  the 
purchaser  —  whatever  the  solicitor,  during  the  time  of  his  re- 
tainer, knows  as  solicitor  for  either  party,  may  possibly  in 
some  cases  affect  both,  without  *reference  to  the  time  when  his 
knowledge  was  first  acquired.  Any  other  qualification  of  the 
principle  limiting  the  client's  liability  to  notice  acquired  in  the 
same  transaction,  the  distinguished  judge  referred  to  does  not 
acknowledge,  {xx)     If,  however,  one  assume  to  act  as  agent  of 


[w)  Wigram,  V.  C,  Fuller  v.  Bennett, 
2  Hare,  402,  403.  And  Lord  Harclwicke, 
in  declaring  the  same  doctrine,  in  Worsley 
V.  Scarborough,  3  Atk.  392,  said  it  would 
be  very  mischievous  if  it  were  otherwise, 
for  the  man  of  most  practice  and  greatest 
eminence  would  then  l>e  the  most  danger- 
ous to  employ.  And  see  Warrick  v. 
Warrick,  3  Atk.  294.  In  Hood  v. 
Fahiiestock,  8  Watts,  489,  it  was  held, 
that  if  one  in  the  course  of  his  business  as 
agent,  attorney,  or  counsel  for  another, 
obtain  knowledge  ft-om  which  a  trust 
would  arise,  and  afterwards  becomes  the 
agent,  attorney,  or  counsel  of  a  subse- 
quent ])urchaser  in  an  independent  and 
unconnected  transaction,  his  previous 
knowledge  is  not  notice  to  such  other 
person  for  whom  he  acts.     "  The  reason 

[70] 


is  [per  Sergeant,  J.,  delivering  the  opin- 
ion of  the  Court,]  that  no  man  can  be 
supposed  always  to  carry  in  his  mind  the 
recollection  of  former  occurrences  ;  and 
moreover,  in  the  case  of  the  attorney  or 
counsel  it  might  be  contrary  to  his  duty 
to  reveal  the  confidential  communications 
of  his  client.  To  visit  the  principal  with 
constructive  notice,  it  is  necessary  that 
the  knowledge  of  the  agent  or  attorney 
should  be  gained,  in  the  course  of  the 
same  transaction  in  which  he  is  employed 
by  his  client."  Bracken  v.  Miller,  4  W. 
&  Serg.  102,  S.  P. 

(.r)  Wifiram,  V  C,  Fuller  r.  Bennett, 
2  Hare,  402. 

(xx)  See  Judgment,  Fuller  v.  Bennett, 
2  Hare,  402,  where  the  cases  are  rcA'fewed 
and  much  discussed. 


CH.  III.]  AGENTS.  *66 

another,  and  cause  an  act  to  be  done  for  him  of  which  the  latter 
afterwards  takes  the  benefit,  he  must  take  it  charged  with 
notice  of  such  matters  as  appear  to  have  been  at  the  time 
within  the  knowledge  and  recollection  of  the  agent.  (//) 

On  the  other  hand,  knowledge  possessed  by  a  principal 
affects  a  transaction,  although  the  transaction  took  place 
through  an  agent  to  whom  the  knowledge  was  not  communi- 
cated, {yy)  As,  if  a  principal  knew  of  defences  to  a  promissory 
note  available  only  against  a  purchaser  with  knowledge,  and 
this  principal  bought  the  note  by  an  agent,  who  had  no  knowl- 
edge of  these  defences,  they  might  still  be  enforced  against  the 
principal. 

Much  question  has  arisen  as  to  the  effect  on  a  corporation, 
of  notice  to  one  who  is  a  member  or  officer  of  it.  By  some  it 
is  held  that  the  notice  must  be  made  formally  to  the  corpora- 
tion, (c)  and  it  has  been  contended  on  the  other  hand,  that  the 
notice  is  enough  if  given  to  any  director,  or  any  member  of  a 
board  which  manages  the  affairs  of  the  corporation,  [a)  We 
consider  these  views  extreme  and  inaccurate  ;  and  should  state 
as  the  rule  of  law  that  a  notice  to  a  corporation  binds  it,  only 
when  made  to  an  officer,  whether  president,  director,  *trustee, 
committee-man,  or  otherwise,  whose  situation  and  relation  to 
the  corporation  imply  that  he  has  authority  to  act  for  the  cor- 
poration in  the  particular  matter  in  regard  to  which  the  notice 
is  given,  [b) 

{ij)  Ilovoy  V.  Blanchartl,  13  N.  H.  145.  ercd  worth  inquiry  whether  the  clause  we 

(////)  In  Willis  V.  Bank  of  Enfrland,  4  have  put  in  italics  is  not  an  essential  part 

A.  «Sc   El.  21,  .3'J,  the  doctrine  of  notice  of  the  rule.    Certainly,  Maj-hcw  r.  Eanies, 

was  thus  stated  hy  Lord  Demnan  :  "  The  (3  B.  &  Cress.  601,)  cited  hy  the   learned 

general  rule  of  law  is  that  notice  to  the  chief  justice,  is  very  far  from  estalilishiiifj 

jjrincipal  is  notice  to  all  his  agents.  May-  the   naked   doctrine   that    notice   to    the 

hew  I'.  Eaincs  ;  at  any  rate  if  there  be  rea-  princi])al  is  notice  eo  instanti  to  the  agent. 

sonable  time,  a&xhiirc  WAS  hara,  for  the  prin-  (z)  Louisiana  State  Bank  v.  Senecal, 

cipal  to  communicate  that  notice  to  his  a(/eiits,  13  Louis,  llej).  52.5. 

b(fore    the    event    irhirh    i-aisvs  the  quiMion  (a)  Bank  of  U.  S.  v.  Davis,  2  Hill,  (N. 

luippens.  .  .  .  We  have  been  pressed  with  Y.)  451  ;  North  River  Bank  v.  Aymar, 

the  inconvenience  of  rctjuiring  every  trad-  3  Hill  (N.  Y.)  262. 

ing   company   to   communicate  to    their  {h)  See  Powles  v.  Page,  3   C.  B.   16; 

agents  everywhere  whatever  notices  they  Porter  v.  Bank  of  Kutland,  19  Vermcmt, 

may  receive;  hut  the  argument  <ih  imon-  B.  410,  425;  Fulton  Bank  ;•.  X.  Y.  &  S. 

x-enivnti  is  seldom  entitled  to  much  weight  Canal  Co.  4  I'aige,   127  ;  National  Bank 

in   deciding  legal   questions;    and,   if  it  v.  Norton,  1  Hill   (N.  Y.)  W.  575;  The 

were,  other  inconveniences  of  a  more  se-  New  Hope,  &c.  Co.  r.  The  Pliccnix  IJank, 

rious  nature  would  obviously  grow  out  of  3   Comst.    156,    166;  Storj-  on   Agency, 

a  different  decision."     It  maybe  cousid-  sects.  140  a,  140  d. 


67*  THE   LAW   OF   CONTRACTS.  [bOOK   I. 


SECTION    XI. 

OF   SHIPMASTERS. 

A  master  of  a  ship  has,  by  the  policy  of  the  law-merchant, 
some  authority  not  usually  implied  in  other  cases  of  general 
agency,  (c)  Thus,  he  may  borrow  money,  if  the  exigencies 
and  necessities  of  his  position  require  it,  and  make  his  owner 
liable,  and  pledge  the  ship  (by  bottomry,  for  the  most  part)  for 
the  repayment,  (d)  But  this  authority  does  not  usually  extend 
to  cases  where  the  principal  can  personally  act,  as  in  the  home 
port,  [e)  or  in  a  port  where  the  owner  has  a  specific  agent  for 
this  purpose,  (/)  and  by  parity  of  reason  not  in  a  port  so  near 
the  owner's  home  that  he  may  be  consulted,  without  inconven- 
ience and  injurious  delay,  (g-)  So,  too,  under  such  circum- 
stances, he  may,  without  any  special  authority,  sell  the  prop- 
erty intrusted  to  him,  in  a  case  of  extreme  necessity,  and  in  the 
exfercise  of  a  sound  discretion.  Nor  need  this  necessity  be 
actual,  in  order  to  justify  the  master  and  make  the  sale  valid. 
If  the  ship  was  in  a  peril,  which,  as  estimated  from  all  the  facts 
then  within  his  means  of  knowledge,  was  imminent,  and  made 
it  the  most  prudent  course  to  sell  the  ship  as  she  was,  without 
further  endeavors  *to  get  her  out  of  her  dangerous  position,  this 
is  enough,  and  the  sale  is  justified  and  valid,  although  the  pur- 
chasers succeed  in  saving  her,  and  events  prove  that  this  might 

(c)  Whether  an  action  may  be  main-  (e)  Lister  v.  Baxter,  Stra.  695  ;  Pat- 
tained  against  an  owner,  which  is  ground-  ton  v.  The  Randolph,  Gilp.  R.  457  ;  Ship 
ed  on  the  exercise  of  this  peculiar  and  ex-  Lavinia  v.  Barclay,  1  Wash.  C.  C.  R. 
traordinary  authority  by  one  who  was  not  49  ;  Lord  Abinger,  Arthur  v.  Barton,  6 
the  master  on  the  register,  but  by  appoint-  M.  &  W.  138. 

ment  of  the  owner  had  virtually  acted  as  (/)  Pritchard  v.    Schooner  Lady  Ho- 

master,  rpicere:  see  Stonehouse  v.  Gent,  2  ratia,  Bee's  Ad.  R.  167. 

Q.  B.  431   n. ;  Smith  v.  Davenport,  34  {g)  Johns  v.  Simons,  2  Q.  B.  425;  Ar- 

Me.  520.  thur  v.  Barton,  6  M.  &  W.  138  ;  Mackin- 

(d)  Barnard  v.  Bridgeman,  Moore,  tosh  v.  Mitcheson,  4  Exch.  175;  Beldon 
918  ;  Weston  v.  Wright,  7  M.  &  W.  396  ;  v.  Campbell,  20  Law  J.  Rep.  N.  S.  Exch. 
Arthur  v.  Barton,  6  M.  &  W.  138 ;  The  342,  6  E.  Law  and  Eq.  473,  where  Rob- 
Gratitudine,  3  Rob.  Ad.  R.  240  ;  Stain-  inson  v.  Lyall,  7  Price,  592,  was  ques- 
bank  v.  Penning,  6  E.  L.  &  E.  412;  The  tioned. 

Fortitude,  3  Sumner,  R.  228. 

[72] 


CH.  Til.'] 


AGENTS. 


-^7 


have  been  done  by  the  master.  For  a  sudden  and  entire 
change  of  wind  or  weatlier,  or  some  other  favorable  circum- 
stance which  no  one  at  the  time  could  have  rationally  expected, 
might  be  the  means  of  her  safety  ;  and  the  powers  and  duty  of 
the  master  must  not  depend  on  matters  which  are  alike  beyond 
control  and  foresight,  (/f) 


SECTION    XII. 

OF    AN    ACTION    AGAINST    AN    AGENT   TO    DETERMINE    THE    RIGHT 
OF    A    PRINCIPAL. 

It  is  a  rule  of  law  in  respect  of  all  agencies,  that  where 
money  is  paid  to  one  as  agent,  to  which  another  as  principal 
has  color  of  right,  the  right  of  the  principal  cannot  be  tried  in 
an  action  brought  by  the  party  paying  the  money  against  the 
agent  as  for  money  had  and  received  to  the  use  of  such  party  ; 
but  such  action  should  be  brought  against  the   principal,  (t) 


(/i)  The  Brig  Sarah  Ann,  2  Sumner, 
206  ;  Hunter  v.  Parker,  7  M.  &  W.  322. 

(/)  Bamtord  v.  Shuttleworth,  11  A.  & 
El.  926;  Sadler  l-.  Evans,  4  Burr.  1984; 
Horsfall  v.  Handlcy,  8  Taunt.  136 ;  Cos- 
tigan  V.  Newland,  12  Barb.  456.  Yet  if 
notice  not  to  pay  over  have  been  Riven, 
then  the  agent  maybe  sued.  Lord  Mcuts- 
JiefJ,  Sadler  v.  Evans,  4  BuiT.  1986;  Ed- 
wards r.  Hodding,  5  Taunt.  81.");  Ilear- 
sey  V.  Pruyn,  7  Johns,  li.  179  ;  Elliott  v. 
Swartwout,  10  Peters,  137 ;  Bend  v. 
Iloyt,  13  id.  263;  La  Farge  r.  Kneeland, 
7  Cow.  456.  Sec  however,  as  to  the  lia- 
bility of  collectors  of  the  customs,  Gary  v. 
Curtis,  3  Howard,  Sup.  Ct.  11.  236. — 
And  in  some  cases  it  has  been  held  that 
even  without  notice,  the  agent  may  be 
lield  liai)le  for  money  had  and  received,  if 
he  have  not  aitmiHij  paid  over  the  money 
to  the  principal,  or  done  something  ecpiiva- 
Icnt  to  it :  and  tiic  mere  entering  the 
amount  to  the  credit  of  the  priucijial,  or 
making  a  rest,  is  not  e(iiiiv:ileju  to  ])ay- 
mcnt  over.  BuUcr  v.  Harrison,  C'owper, 
565;  Cox  r.  Prentice,  3  M.  &  Sel.  344. 
But  upon  these  cases  Mr.  Smith  com- 
ments as  follows  :  "  It  will  be  observed 

VOL.  I.  7 


that  in  neither  of  these  cases  could  the 
])rincipal  himself  ever  by  po.ssibility  have 
claimed  to  retain  the  money  for  a  single 
instant,  bad  it  reached  his  hands,  the  pay- 
ment having  t)een  made  by  tlie  ]>laintitf 
under  pure  mistake  of  facts,  and  iieing 
void  ah  initio,  as  soon  as  that  mistake  was 
discovered,  so  that  the  agent  would  not 
have  been  estopped  from  denying  his  prin- 
cipal's title  to  the  money,  any  more  than 
the  factor  of  J.  S.  of  LTamaica,  who  has 
received  money  paid  to  him  under  the  sup- 
position of  his  employer  being  J.  S.  of 
Trinidad,  would  be  estopped  from  retain- 
ing that  money  against  bis  emjjloyer,  in 
order  to  return  it  to  the  person  who  ])aid 
it  to  him.  Besides  which,  in  Buller  v. 
Harrison,  bad  the  agent  paid  the  money 
he  received  from  the  umlerwriter  in  dis- 
charge of  the  foul  loss,  over  to  his  jiria- 
cipal,  he  would  have  rendered  himself  an 
instrument  of  fraud  which  no  ageijt  can 
be  obliged  to  do.  Except  in  such  ca.ses 
as  these,  the  nutxim,  rispoitdcat  miperior, 
has  been  ajjplied,  and  the  agent  held  re- 
sponsible to  no  one  but  his  principal." 
Merc.  Law,  B.  1,  c.  5,  ^  7.  In  Snowdon 
V.  Davis,  1  Taunt.  359,  a  sheriff  had  issued 

[73] 


68* 


THE   LAW    OF   CONTKACTS. 


[Bd^K  1. 


For  a  party  who  deals  with  an  agent  (acting  as  *such,  and 
within  the  scope  of  his  authority,)  has,  in  general,  no  right  to 
separate  him  from  his  principal  and  hold  him  liable  in  his  per- 
sonal capacity.  The  agent  owes  an  account  of  his  actions  to 
his  principal,  and  that  he  may  be  able  to  render  that  account, 
the  law,  except  under  special  circumstances,  refuses  to  impose 
upon  him  a  duty  to  any  third  party. 

We  here  close  all  that  was  proposed  to  be  said  of  agents  as 
parties  to  contracts  entered  into  by  them  in  their  representative 
capacity.  The  relation  between  agent  and  principal  constitutes 
itself  a  distinct  contract,  and  the  considerations  growing  out  of 
it  would,  in  a  strictly  accurate  division,  find  a  place  in  that  part 
of  this  work  which  treats  of  the  Subject- Matter  of  contracts. 
But  it  has  been  deemed  expedient  in  this  instance,  as  in  some 
others,  to  sacrifice  logical  order  to  the  convenience  of  the 
reader;  and  such  observations  as  seem  to  be  required  by  the 
contract  of  Agency,  properly  so  called,  are  subjoined  in  the  fol- 
lowing section. 


a  warrant  on  mesne  process,  to  distrain 
the  goods  of  A ;  the  bailiff  levied  the  debt 
upon  the  goods  of  B,  and  paid  it  over. 
Hdd,  that  money  had  and  received  would 
lie  against  the  bailiff.  Mansfield,  C.  J., 
said :  "  The  bailiff  pays  the  money  over 
to  the  sheriff,  and  the  sheriff  to  the  exche- 
quer, and  it  is  objected,  that  as  it  has 
been  paid  over,  the  action  for  money  had 
and  received  does  not  lie  against  the 
baili  ff;  and  this  is  compared  to  the  case  of 
an  agent,  and  the  authorities  are  cited  of 
Sadler  v.  Evans ;  Campbell  v.  Hall,  1 
Cowp.  204 ;  Buller  ?■.  Harrison,  2  id.  565, 
and  several  others.  In  the  case  of  Sadler 
V.  Evans,  the  money  was  paid  to  the  agent 
of  Lady  Windsor,  for  Lady  Windsor's 
use;  in  that  of  Buller  r.  Harrison,  the 
money  was  paid  to  the  broker,  expressly 
for  the  benefit  of  the  assured.  In  Pond  v. 
TJndenvood,  the  money  was  paid  for  the 
use  of  the  administrator.  Can  it  in  this 
case  be  said  with  any  propriety,  that  the 
money  was  paid  to  the  bailiff  for  the  pur- 
pose of  paying  it  to  the  sheriff,  or  to  the 
intent  that  the  sheriff  might  pay  it  into  the 
exchequer  ?  The  plaintiff  pays  it  under 
the  terror  of  process,  to  redeem  his  goods, 
not  with  an  intent  that  it  should  be  deliv- 
ered over  to  any  one  in  particular."  But 
this  case  has  been  regarded  by  high  au- 
thority as  establishing  a  stronger  doctrine 

[74] 


than  that  on  which  Sir  James  Mansfield 
appears  to  have  placed  it.  In  Smith  v. 
Sleap,  12  M.  &  W.  588,  Parke,  B.,  refer- 
ring to  Snowdon  v.  Davis,  said  :  "  It  was 
there  held  that  a  party  who  had  received 
money  wrongfully  could  not  set  up  as  a 
defence  that  he  had  received  it  for,  and 
paid  it  over  to,  a  third  pei'son."  In  the 
same  case  a  dictum  of  the  Court  of  Ex- 
chequer is  reported,  to  the  effect  that  a 
payment  to  A,  expressly  as  the  agent  of 
B,  for  the  purpose  of  redeeming  goods 
wrongfully  detained  by  B,  and  a  receipt 
by  A  expressly  for  B,  ■would  make  a  case 
upon  which  iin  action  against  A  for  money 
had  and  received,  could  be  maintained. 
And  in  the  case  of  Parker  v.  Bristol  and 
Exeter  Railway,  7  E.  L.  &  E.  528,  where 
the  defendants  had  refused  to  deliver  the 
plaintiff's  goods  until  he  paid  an  excess 
over  the  proper  amount  due  for  freight 
money,  it  was  held  that  he  might  maintain 
an  action  to  recover  this  excess  from  the 
defendants,  although  they  received  a  por- 
tion of  it  only  as  agents  for  the  Great 
Western  Railway  Company ;  the  principle 
being  "  that  an  action  for  money  had  and 
received  lies  to  recover  back  money  which 
has  been  obtained  through  compulsion 
even  although  it  has  been  received  by  an 
agent  who  acted  for  the  principal." 


CH.  III.] 


AGENTS. 


»69-*70 


SECTION    XIII. 

THE  RIGHTS   AND    OBLIGATIONS    OF   PRINCIPAL   AND   AGENT   AS   TO 
EACH    OTHER. 

An  agent  with  instructions  is  bound  to  regard  them  in  every 
point;  nor  can  he  depart  from  them,  without  making  *  himself 
responsible  for  the  consequences,  (y)  If  he  have  no  instruc- 
tions, or  indistinct  or  partial  instructions,  his  duty  will  depend 
upon  the  intention  and  understanding  of  the  parties.  This  may 
be  gathered  from  the  circumstances  of  the  case,  and  especially, 
from  the  general  custom  and  usage  in  relation  to  that  kind  of 
business,  (k)  But  he  cannot  defend  himself  by  showing  a  con- 
formity to  usage,  if  he  has  disobeyed  positive  instructions.  If 
loss  ensue  from  his  disregard  to  his  instructions,  he  must  sus- 
tain it ;  if  profit  he  cannot  retain  it,  but  it  belongs  to  his  prin- 
cipal. (/) 

A  principal  discharges  his  agent  from  responsibility  for  de- 
viation from  his  instructions,  when  he  accepts  the  benefit  of 
his  act.  (m)     He  may  reject  tlie  transaction  'altogether;  (w)  and 


( ;■)  Levcrick  v.  Meijrs,  1  Cow.  64.") ; 
Marshall,  C.  J.,  MancUa  v.  Bany,  3 
Cranch,  415,  439;  Kinjrston  v.  Kincaid, 
1  Wash.  C.  C.  R.  454 ;  Rundle  v.  Moore, 
3  .lolins.  Cas.  36 ;  Loraine  r.  Cartwrijilit, 
3  Wash.  C.  C.  K.  151  ;  Feifruson  v.  Por- 
ter, 3  Florida,  27.  —  "And  no  motive 
connected  witli  tlie  interest  of  the  ])v'm- 
cipal,  however  honestly  entertained,  or 
however  wisely  adopted,  can  excuse  a 
hreach  of  the  instructions."  Wnshiiit/toii, 
J.,  in  Courcier  v.  Ritter,  4  Wash.  C.  C.  R. 
549,  551  :  but  coniparo  Forrestier  v. 
lioardman,  1  Story,  43.  —  If  in  ohedience 
to  the  instructions,  the  aj^ent  do  an  act 
which  is  illcfral  in  fact,  thoui;h  not  clearly 
in  itself  a  hreach  of  law,  nor  known  hy  the 
ajjent  to  he  so,  he  is  entitled  to  he  indein- 
niticd  by  the  principal  for  the  conse<[uenccs. 
IJetts  r.  Gibbins,  '2  Ad.  &  Fl.  57  ;  Adaui- 
.son  c.  Jarvis,  4  Hinir.  f>G,  72 ;  Ives  v. 
Jones,  3  Iredell's  Law.  53S. 

{k-}  Marzetti  r.  Williams,  I  R.  &  Ad. 
415  ;  Sutton  v.  Tathani,  10  Ad.  &  El.  27  ; 


Svkes  V.  Giles,  5  M.  &  W.  645  ;  Kingston 
r.' Wilson,  4  Wash.  Cir.  C.  315.— And  if 
the  ajrent  is  eniployed  to  act  in  some  )tar- 
ticular  business  or  trade,  he  may  liind  his 
principal  l)y  following;  the  usages  of  that 
trade,  whether  the  principal  is  aware  of 
them  or  not.  I'ollock  v.  Stables,  12  Q. 
B.  765  ;  Bayliffe  v.  Buttcnvoith.  1  Fxch. 
425  ;  there  ParLe,  B.,  distinguishing  the 
case  of  Bartlett  v.  Pentland,  10  B.  & 
Cress.  760,  said :  "  That  however  is  a 
different  ([uestion  from  the  ))resent,  which 
is  one  of  contract.  In  the  case  of  a  con- 
trait  which  a  jierson  orders  anf)ther  to 
make  for  him,  he  is  bound  by  that  con- 
tract if  it  is  made  in  the  usual  wav." 

(/)  Catlin  V.  Bell,  4  Camp.  184  ;  Parkist 
V.  Alexander,  1  .Johns.  Ch.  394 ;  Segar  v. 
Edwards,  11  Leigh,  213. 

(;«)  Clarke  v.  Pcrrier,  2  Frcem.  48; 
Prince  v.  Clark,  1  B.  &  C.  186. 

(;i)  Roe  V.  Pri<leaux,  10  Kast,  158. — 
If  however,  an  agent  has  done  more  than 
he  was  authorized  to  do,  the  execution, 

[75  1 


71* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


if  he  advanced  money  on  goods  which  his  agent  purchased  in 
violation  of  his  authority,  he  is  not  bound  to  return  the  goods 
to  the  agent  when  he  repudiates  the  sale,  but  has  his  lien  on 
them,  and  may  hold  them  as  the  property  of  *the  agent,  (o) 
But  he  must  reject  the  transaction  at  once,  and  decisively,  as 
soon  as  fully  acquainted  with  it.  For  if  he  delays  doing  this, 
that  he  may  have  his  chance  of  making  a  profit,  or  if  he  per- 
forms acts  of  ownership  over  the  property,  he  accepts  it,  and 
confirms  the  doings  of  the  agent,  (p) 

Some  conflict  appears  to  exist  as  to  the  right  of  an  agent  to 
delegate  his  authority.  On  the  one  hand,  the  general  principle, 
that  delegatus  non  potest  delegare^  is  certain,  [q)  An  agent  can 
do  for  his  principal  only  that  which  his  principal  authorizes ; 
and  if  the  principal  appoints  an  agent  to  act  for  him  as  his  rep- 
resentative in  any  particular  business,  this  agent  has  not  thereby 


though  void  as  to  the  excess,  may  be  held 
good  for  the  rest,  at  least  in  equity  But 
it  is  necessary  in  such  a  case  that  the 
boundaries  between  the  excess  and  the 
execution  of  the  power  should  be  clearly 
distinguishable.  Sir  Tliomas  Clarke,  V. 
C,  Alexander  v.  Alexander,  2  Ves.  Sen., 
644 ;  Campbell  v.  Leach,  Ambl.  740 ; 
Vanada  v.  Hopkins,  1  J.  J.  Marsh.  285, 
294 ;  Sugden  on  Powers,  ch.  9,  §  8.  — And 
in  some  cases  it  has  been  held  at  law  that 
an  agent  transcending  his  authority  in 
part,  binds  his  principal  for  the  part  which 
was  performed  in  i^ccordance  with  the 
authority.  Gordon  v.  Buchanan,  5  Yerg. 
71  ;  Johnson  v.  Blasdale,  1  Smedes  & 
Marsli.  17. — See  Wintle  v.  Crowther,  1 
C.  &Jer.  316. 

(o)  Lord  Hardwicke,  Cornwall  v.  Wil- 
son, 1  Ves.  Sen.  510;  Lord  Eldon,  Kemp 
V.  Try  or,  7  V&s.  240,  247. 

(/))  Prince  v.  Chxvk,  1  B.  &  Cress.  186 ; 
'Cornwall  v.  Wilson,  1  Ves.  Sen.  509. 

(7)  Combe's  Case,  9  Co.  R.  75  b,  76  a. 
—  This  maxim  has  frequent  a]jplication 
in  cases  of  powers.  Ingram  v.  Ingram,  2 
Atk.  88  ;  Alexander  v.  Alexander,  2  Ves. 
Sen.  643  ;  Hamilton  v.  Royse,  2  S.  &  Lcf. 
330.  —  A  notice  to  (juit,  given  by  an  agent 
of  an  agent,  is  not  sufficient  without  a 
recognition  by  the  principal.  Doe  v.  Rob- 
inson, 3  Bing.  N.  C.  677.  — An  attach- 
ment for  non-payment  of  costs  cannot  be 
supported  by  a  demand  of  the  costs  by  a 
third  person,  authorized  by  the  attorney  to 

[76] 


receive  them.  Clark  v.  Dignum,  3  M.  & 
W.  319.  — In  an  action  on  an  agreement 
for  the  sale  of  goods,  at  a  valuation  to  be 
made  by  A,  tlie  issue  was,  whether  a  valu- 
ation was  made  by  A.  It  appeared  that 
the  goods  were  in  fact  valued  by  B,  A's 
clerk.  Held,  that  the  defendant  was  not 
boimd  by  it,  unless  it  were  shown  that  it 
was  agreed  between  the  parties  that  B's 
valuation  should  be  taken  as  A's ;  and 
that  the  fact  of  the  defendants  seeing  B 
valuing,  and  making  no  objection  until  B 
told  iiim  tlie  amount,  was  not  evidence  of 
such  agreement.  Ess  v.  Truscott,  2  M.  & 
W.  385.  —  A  broker  cannot  delegate  his 
authority.  Henderson  v.  Barnewall,  1  Y. 
&  Jer.  387  ;  Cockran  v.  Irlam,  2  M.  & 
Sel.  301,  note.  — Nor  can  a  factor.  Solly 
V.  Rathbone,  2  M.  &  Sel.  298  ;  Catlin  v. 
Bell,  4  Camp.  183.  — A  distinction,  how- 
ever, is  to  be  taken  between  the  employ- 
ment of  a  servant  and  the  delegation  of  the 
authority.  An  agent,  like  another  person, 
may  act  by  the  hand  of  a  servant  as  well 
as  by  his  own  hand,  in  cases  where  the  act 
is  merely  physical,  or  where  mind  enters 
into  it  so  little  that  it  would  be  absurd  to 
say  tliat  the  difference  between  one  mind 
and  another  could  be  of  any  moment. 
Lord  Ellenborough,  Mason  v.  Joseph,  1 
Smith,  406.  See  also,  Powell  v.  Tuttle, 
3  Corns.  396  ;  Moore  v.  Wilson,  6  Post. 
332  ;  Comm.  Bank  of  Penn.  v.  Union 
Bank  of  N.  Y.,  1  Kernan,  203. 


CH.  III.]  AGENTS.  *72 

a  right  to  make  another  person  the  representative  of  his  prin- 
cipal. The  employment  and  trust  are  personal;  they  may  rest 
on  some  ground  of  personal  preference  and  confidence,  and  on 
the  knowledge  which  the  principal  has  of  his  agent's  ability,  and 
the  belief  he  has  of  his  integrity.  But  if  the  agent,  merely  by 
virtue  of  his  agency,  may  substitute  one  person  in  his  stead,  he 
may  another,  or  any  other,  and  thus  compel  the  principal  to  be 
represented  by  one  whom  he  does  not  know,  or  be  bound  by 
obligations  cast  upon  him  by  one  whom  he  does  know,  and 
because  he  knows  *hira  would  refuse  to  employ.  But,  on  the 
other  hand,  the  principal  may,  if  he  chooses,  give  this  very 
power  to  his  agent,  (y)  In  the  common  printed  forms  of  letters 
of  attorney,  we  usually  find  the  phrase,  "  with  power  of  substi- 
tution," and  after  this  a  promise  to  ratify  whatever  the  attorney, 
"  or  his  substitute,"  may  lawfully  do  in  the  premises.  That  the 
agent  has  this  power,  when  it  is  given  to  him  in  this  way,  can- 
,not  be  doubted.  But  it  must  be  as  certain  that  the  principal 
may  confer  the  same  power  otherwise  ;  and  not  only  by  other 
language,  but  without  any  express  words  whatever,  (s)  If  a 
principal  constitutes  an  agent  to  do  a  business  which  obviously 
and  from  its  very  nature  cannot  be  done  by  the  agent  otherwise 
than  through  a  substitute,  or  if  there  exists  in  relation  to  that 
business  a  known  and  established  usage  of  substitution,  in  either 
case  the  principal  would  be  held  to  have  expected  and  have 
authorized  such  substitution.  (/)  So  too,  where  an  agent  without 
authority  appoints  a  substitute,  the  principal  may,  either  by 
words  or  acts,  so  confirm  and  ratify  such  substitution,  as  to 
give  to  it  the  same  force  and  effect  as  if  it  had  been  originally 
authorized,  (w) 

{/•)  Piilliscr  t'.  Ortl,  Bunb.  166.  —  A  ants  to  draw  a  specification  for  a  building 
power  roufikd  with  an  iitknrst,  fiivcn  to  A  ])rupose(l  to  be  erected,  himself  enii)loyed 
and  his  (issirjn.s,  jmsses  with  the  interest  to  the  i)!:iintirt"  to  make  out  the  quantities, 
A's  devisee,  to  tlie  executor  of  that  devisee,  wiiicii  work  was  to  be  paid  for  by  tiie  suc- 
and  to  the  assi<^tiec  of  the  devisee,  &c.  ;  cessful  competitor  for  the  building  con- 
fer tlio  word  assi>;ns  includes  both  as-  tract ;  the  jury  found  a  usaj^e  for  archi- 
signces  in  law  and  in  fact.  Howr.  White-  tects  to  liave  their  rjuantities  made  out  by 
field,  1  Vent.  3.'{8,  3.J't,  S.  C  as  How  v.  surveyors:  —  it  wiuf;  held  that  tiie  plaintift' 
Whitel>anck,  1  Freeman,  476.  was  entitled  to  iTcover  compensation  from 

(.••■)  Moon    r.    Ciuardians    of    Whitney  the   defendants.     Moon  r.   Guardians    of 

Union,. 'HJing.  N.  C.  814;  Gillis r. Bailey,  Whitney  Union,  .'3  Bing.  N.  C.  814  ;  Le- 

1  Foster,  (N.  H.)  149.  doux  f.'Goza,  4  Louis.  Ann.  160. 

(/)  An  architect  employed   by  defend-  (i<)   Tindal,  C.  J.,  Doe  r.  Uobiiison,  3 

7*  [77] 


73* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


A  substitute  of  an  agent  who  had  no  authority  to  appoint 
him  cannot  be  held  as  the  agent  of  the  original  principal,  but  is 
only  the  agent  of  the  agent  who  employs  him,  (v)  and  who  is 
accordingly  his  principal ;  and  the  person  so  employed  is  *bound 
only  to  his  immediate  employer,  and  must  look  only  to  him  for 
compensation,  [vv)  But  a  substitute  appointed  by  an  agent, 
who  has  this  power  of  substitution,  becomes  the  agent  of  the 
original  principal,  and  may  bind  him  by  his  acts,  and  is  respon- 
sible to  him  as  his  agent,  and  may  look  to  him  for  compensa- 
tion. 

An  agent  is  bound  to  great  diligence  and  care  for  his  prin- 
cipal ;  not  the  utmost  possible,  but  all  that  a  reasonable  man, 
under  similar  circumstances,  would  take  of  his  own  affairs,  (w) 
And  where  the  instructions  are  not  specific,  or  do  not  cover  the 
whole  case,  there,  as  we  have  already  stated,  he  is  to  conform 
to  established  usage,  as  that  which  was  expected  from  him.  (x) 
This  usage  may  be  generally  proved  by  ordinary  means  ;  but  in 
some  instances,  as  in  relation  to  negotiable  bills  and  notes,  it  is 
required  and  defined  by  the  law  ;  and  here  it  must  be  followed 
precisely.  (//)      And  an  agent  is  bound  to  possess  and  exert  the 


Bing.  N.  C.  677,  679 ;  Mason  v.  Joseph, 
1  Smith,  406. 

(v)  Cobb  V.  Becke,  6  Q.  B.  930;  Rob- 
bins  V.  Fennell,  11  id.  248. 

(vv)  Cleaves  v.  Stockwell,  33  Maine, 
341. 

(w)  Co.  Lift.  89,  a. ;  Chapman  v.  Wal- 
ton, 10  Bing.  .57 ;  Lawler  v.  Keaquick,  1 
Johns.  Cas.  174;  Kingston  v.  Kincaid,  1 
Wash.  C.  C.  454. — Less  than  ordinary- 
diligence  is  i-equired  of  one  avIio  acts  as 
agent  gratuitonsly  ;  unless  indeed  he  hold 
himself  out  as  a  person  exercising  one  of 
•certain  privileged  professions  or  trades,  as 
that  of  an  attornev.  Doorman  v.  Jenkins, 
4  N.  &  Mann.  170,  2  Ad.  &  El.  256; 
Dartnall  v.  Howard,  4  B.  &  Cress.  345. 
See  infra,  n.  (z). 

(x)  Ante,  p.  69*  note  {Jc) ;  Wiltshire 
V.  Sims,  1  Camp.  258. — And  the  usage 
if  followed  (in  the  case  where  there  are  no 
express  instructions),  is  a  defence  to  the 
charge  of  negligence.  Russell  i\  Hankey, 
6  T.  R.  12.  As  to  the  foctor's  duty  to 
insure,  see  Smith  r.  Lascelles,  2  T.  R.  189  ; 
Tickel  V.  Short,  2  Vcs.  Sen.  239. 

(y)  Crawford  v.  Louisiana  State  Bank, 

[78] 


1  Mart.  N.  S.  214  ;  Miranda  r.  City  Bank 
of  New  Orleans,  6  Louis.  740  ;  Smedes  v. 
Utica  Bank,  20  Johns.  372.  Yet  this 
liability  may  be  limited  by  the  particular 
understaiKling  of  the  parties  ;  as  lor  in- 
stance where  an  agent,  dealing  with  nego- 
tiable paper,  has  been  accustomed  to  do 
business  in  a  certain  way  different  from 
that  which  the  law  would  otherwise  require, 
and  the  principal  employing  him  may  from 
the  circumstances  be  supposed  to  know 
this.  Mills  ('.  Bank  of  U.  S.  11  Wheat. 
431  ;  see  Allen  v.  Merchants'  Bank,  22 
Wend.  215;  East  Haddam  Bank  v. 
Scovil,  12  Conn.  303.  And  an  agent  in- 
trusted with  a  negotiable  instrument,  and 
failing  to  fulfil  his  duty  with  respect  to  it, 
is  only  lial)le  like  other  agents  to  the  ex- 
tent of  the  loss  he  has  caused,  and  does 
not  have  to  assume  the  responsibilities 
which  the  law  merchant  imposes  upon  a 
negligent  party  to  the  bill.  Marshall,  C. 
J.,  Hamilton  ik  Cunningham,  2  Brock. 
367.  And  see  Van  Wart  v.  Woolley,  3 
B.  &  Cress.  439,  and  Van  Wart  v.  Smith, 
1  Wend.  219.  An  agent,  acting  with 
ordinary  diligence,  is  not  liable  for  injuries 


en.  m.] 


AGENTS. 


*74 


skill  and  knowledge  necessary  for  the  proper  performance  of  the 
duties  which  he  undertakes,  (z) 

*The  responsibility  of  an  agent,  whether  for  positive  miscon- 
duct, or  for  deviation  from  instructions,  is  not  measured  by  the 
extent  of  his  commission,  but  by  the  loss  or  injury  which  he 
may  cause  to  his  principal,  (a)  And  in  general,  a  verdict 
against  a  principal  for  the  act  of  his  servant,  is  the  measure  of 
the  damages  which  the  former  may  recover  agamst  the  latter,  (b) 
And  the  agent  is  responsible  if  the  loss  could  not  have  hap- 
pened but  for  his  previous  misconduct,  although  it  was  not 
immediately  caused  by  it.  (c) 

It  may  be  regarded  as  a  prevailing  principle  of  the  law,  that 
an  agenWnust  not  put  himself,  during  his  agency,  in  a  position 
which  is  adverse  to  that  of  his  principal,  (d)     f'or  even  if  the 


caused  by  his  mistake  in  a  doubtful  matter 
of  law.  Mechanics'  Bank.  r.  Merchants' 
Bank,  6  Mctc.  13. 

(2)  One  who  undertakes  to  act  in  a  pro- 
fessional or  other  dearly  dertned  capacity, 
as  that  of  carpenter,  blacksmith,  or  the 
like,  is  bound  to  exercise  the  skill  appro- 
priate to  such  trade  or  jn-ofession ;  and 
this,  it  seems,  altboujih  the  undertaking 
be  frratuitous.  Dartnall  v.  Howard,  4  B. 
&  Cress.  345  ;  Shiells  v.  Blackburne,  1  11. 
Bl.  161  ;  Bourne  v.  Diffgles,  2  Chitt.3H  ; 
Tiiiiliil,  C.  J.,  Lanphier  r.  Piiipos,  8  C.  & 
P.  479  ;  Denew  v.  Daverell,  3  Camp.  451  ; 
Leifrhton  r.  Sargent,  7  Fost.  4G0.  lu 
Wilson  V.  Brett,  11  M.  &  W.  113,  it  was 
held  tliat  a  person  who  rides  a  liorse  gra- 
tuitously at  the  owner's  request,  for  the 
pur|iose  of  showing  him  for  sale^  is  bound, 
in  doing  so,  to  use  such  skill  a.s  he  actually 
possesses  ;  and  if  proved  to  be  a  jicrson 
conversant  with  and  skilled  in  horses,  he 
is  equally  liable  with  a  borrower  for  injury 
done  to  the  horse  wiiile  ridden  by  him. 
Jiolfr,  B.,  said  :  "  Tiic  distinction  I  in- 
tended to  make  was,  th.at  a  gratuitous 
bailee  is  only  bound  to  exercise  sudi  skill 
as  he  possesses,  wiu-rcas  a  hirer  or  bor- 
rower may  reasonably  be  taken  to  repre- 
sent to  tlie  i)arty  wlio  lets,  or  from  whom 
lie  borrows,  that  he  is  a  person  of  compe- 
tent skill.  If  a  |)erson  more  skilled  knows 
that  to  be  dangerous  which  another  not  so 
skilled  as  he,  does  not,  surely  tliat  makes 
a  difference  in  the  liability.  I  said  I  could 
sec  no  difference  between  inii/ii/nirc  and 
gross  negligence  —  tluit  it  was  tiie  .same 
thing,  with  the  addition  of  a  vituperative 


epithet ;  and  I  intended  to  leave  it  to  the 
jun,-  to  say  whether  the  defendant,  being, 
as  apjieared  by  the  evidence,  a  person 
accustomed  to  the  management  of  horses, 
was  guilty  of  cul])able  negligence."  But 
Parke,  B.,  only  went  so  far  as  to  say  that, 
"  In  the  case  of  a  gratuitous  bailee,  where 
his  proJ}-ssion  or  situntioii  is  such  us  to  imply 
the  possession  of  competent  skill,  he  is  equally 
liable  for  the  neglect  to  use  it." 

(«)  Sivewright  v.  Richardson,  19  Law 
Times  Keps.  10;  Hamilton  i'.  Cunning- 
ham, 2  Brock.  1{.  350;  Arrott  v.  Brown, 
6  Whart.  9;  Frothingham  v.  Everton,  12 
K.  II.  239 ;  Allen  v.  Suydam,  20  Wend. 
321.  Yet  the  ])rincii)al  may  maintain  an 
action  against  the  agent  for  a  breach  of 
the  contract  between  them,  and  recover 
nominal  damages,  although  there  be  no 
actual  loss.  Marzetti  v.  Williams,  1  B.  & 
Ad.  415  ;  Frotiiinghara  v.  Everton,  12  N. 
II.  239. 

(h)  Mainwaring  v.  Brandon,  8  Taunt. 
202,  S.  C.  2  Moore,  125. 

(c)  Davis  c.  Garrett,  6  Bing.  716;  Short 
V.  Skipwith,  1  Brock.  103;  Mallough  v. 
Barber,  4  Camp.  150  ;  Park  v.  Hamond, 
id.  344,  S.  C.  G  Taunt.  495  ;  Smith  v. 
La.scellcs,  2  T.  K.  187;  Bell  v.  Cunning- 
ham, 3  Pet.  84,  85  ;  l)e  Tastett  v.  Crou- 
sillat,  2  Wash.  C.  C.  P.  132;  Morris  v. 
Summer!,  id.  203.  But  the  loss  must  be 
capai)le  of  being  ascertained  with  reason- 
able certainty.  Webster  v.  De  Tastet,  7 
T.  U.  157  ;  The  Amiable  Nancy,  3  Wiieat. 
560;  Smith  c.  Condry,  1  Huw.  28  ;  Tide- 
water Canal  Co.  v.  Archer,  9  (Jill  &  J.  479.^ 

(d)  Lees  v.  Kuttall,  2  M.  &  K.  819^ 

[79] 


75*  THE   LAW   OF   CONTRACTS.  [bOOK    I. 

honesty  of  the  agent  is  unquestioned,  and  if  his  impartiality 
between  his  own  interest  and  his  principal's  might  be  relied 
upon,  yet  the  principal  has  in  fact  bargained  for  the  *exercise  of 
all  the  skill,  ability,  and  industry  of  the  agent,  and  he  is  entitled 
to  demand  the  exertion  of  ail  this  in  his  own  favor,  (e)  This 
principle  is  recognized  to  some  extent  at  law  (/)  ;  but  most 
cases  of  this  kind  come  before  courts  of  equity.  Thus,  an 
attorney  may  not  take  a  gift  from  his  client,  although  there  be 
not  the  least  suspicion  of  fraud,  {ff)  But  the  rule  is  applied 
not  so  much  to  those  who  act  as  servants,  or  instruments  for 
some  particular  thing,  as  to  persons  whose  employment  is  rather 
a  trust  than  a  mere  service.  Thus,  one  holding  pmj^erty  for 
another,  which  it  is  his  duty  to  sell,  cannot  hirasel^aurchase 
it;  [g]  or  if  he  be  employed  to  buy,  he  cannot  sell,  [h]  A  tech- 
nical reason  given  for  this  is,  that  the  same  person  cannot  both 
buy  and  sell.  But  if  employed  to  sell,  where  he  would  not 
himself  convey  or  transfer  the  property  as  agent,  because  the 
principal  would  do  this  himself,  still  the  agent  cannot  bmd  the 
principal  to  make  the  transfer  to  him  or  for  his  benefit,  by  any 
contract  which  he  makes  as  his  agent.  As  agent  to  sell,  it  is 
his  duty  to  get  the  highest  fair  price ;  and  this  duty  is  incom- 
patible with  his  wnsh  to  buy ;  and  so,  vice  versa,  if  he  is  an 
agent  to  purchase.  At  one  time  it  was  understood  to  be  neces- 
sary to  show  that  a  trustee  had  taken  undue  advantage  of  his 
position,  in  order  to  set  aside  a  purchase  by  him  of  that  which 
he  was  a  trustee  to  sell,  [i)     But  this  is  not  so  now.  {j)     At 

Lees  r.  Nuttall,  1   R.  &  M.  53;  Dunbar  (j^")  Lord  JE'/vsA/ne,  C.Wrifihtu.  Proud, 

V.  Tredenniek,  2  B.  &Beatty,  319  ;  Norris  13  V'es.  138;  Montesquieu  v.  Sandys,  18 

V.  Le  Neve,  3  Atk.  38  ;  Taylor  v.  Salmon,  id.  308  ;  see  Ker  v.  Dungannon,  1  Dru.  & 

4  M.  &  Cr.  134;  Huguenin  c.  Baseley,  14  War.   542;  Middleton  v.  Welles,  4  Bro, 

Ves.  273  ;  Woodhouse  v.  Meredith,  I'jac.  P.  C.  245.     Sec  also,  Cutts  v.  Salmon,  12 

&  Walk.  24  ;  Barker  v.  Marine  Ins.  Co.,  Eng.  Law  &  Eq.  316  ;  Holman  v.  Loynes, 

2   Mason,   369;  Church   v.  Marine   Ins.  27  id.  168;  Broughton  v.  Broughtou,  31 

Co.,   1   id.  344;  Parkist  v.  Alexander,  1  id.  587. 

Johns.   Ch.   394  ;  Shepherd  v.   Pe^cy,  4  (_</)  Lowther  v.  Lowther,  13  Ves.  103  ; 

Martin,  N.   S.  267 ;  Crook  v.  Williams,  Wren   v.    Kirton,    8   id.   502 ;  Morse    v. 

20  Penn.  St.  Rep.   342;    Coles   v.    Tre-  Royal,  12  id.  355;  Charter  t\  Trevelyan, 

cothick,  9  Ves.  234.       An  agent  may  not  11  C.  &  Fin.  714. 

dispute  the  title  of  his  principal,  nnleas  the  (h)  Lees  v.  Nuttall,  2  M.  &  K.  819  ; 

principal    obtained  the   goods  jWiuiJulentlij.  Tavlor    v.    Salmon,    4    M.    &    Cr.    139 ; 

Hardman  v.  Wilcox,  QBing.  382,  n.  (a).  Bunker  v.  Miles,  30  Maine,  431. 

(c)  Thompson  i\  Havelock,   1    Camp.  (i)  Lord   Loughborough,    Whiehcote    v. 

(p27  ;  Diplock  r.  Blackburn,  3  id.  43.  Lawrence,  3  Ves.  750. 

(f)  See  infra,  note  (jj).  (j)  Ex  parte  Lacey,  6  Ves.  627  ;  Ex 

["80] 


CH.  m.] 


AGENTS. 


•76 


present,  the  rule  in  equity  appears  to  be,  that  any  act  by  an 
agent  with  respect  to  the  subject-matter  of  the  agency  injurious 
to  his  principal,  may  be  avoided  by  the  principal.  If  an  agent 
to  sell  become  the  purchaser,  or  if  an  agent  to  buy  be  himself 
the  seller,- a  court  of  chancery,  upon  the  timely  application  of 
the  principal,  will  presume  that  the  transaction  was  injurious, 
and  will  not  permit  the  agent  to  contradict  this  presumption  ;  — 
unless,  indeed,  he  can  show  that  the  principal,  when  furnished 
with  all  the  knowledge  he  himself  possessed,  gave  him  previous 
authority  to  be  such  buyer  or  seller,  or  afterwards  assented  to 
such  purchase  or  sale,  [jj) 

*Among  the  obvious  and  certain  duties  of  an  agent,  is  that 


parte  Bennett,  10  Ves.  385  ;  Davoue  v. 
Fanning,  2  Jolins.  Ch.  252 ;  Brotliers  v. 
Brotlicrs,  7  Ire.  Eq.  150;  Harrison  v. 
McIIcnrr,  9  Geo.  164;  Sturdevant  v. 
Pike,  r  Carter,  (Ind.)  277;  Mason  v. 
Martin,  4  Marvi.  124. 

( //)  Lord  ICIdon,  Coles  v.  Trecothick, 
9  Ves.  2.34,  247  ;  Lord  Erskine,  Lowther 
V.  Lowtlier,  1.3  id.  103;  Ex  parte  Huphes, 
6  id.  017  ;  Muri)hy  v.  O'Shea,  2  J.  &  L. 
422 ;  E  I.  Coinp.  r.  Henchman,  1  Ves. 
Jr.  289  ;  Ex  parte  Bennett,  10  Ves.  385 ; 
Oliver  v.  Court,  8  Price,  127;  Fox  v. 
Mackreth,  2  Bro.  Ch.  400;  The  York 
Buildin;,'s  Co.  v.  Mackenzie,  8  Bro.  P.  C. 
42  ;  Molony  i:  Keman,  2  I).  &  War.  31  ; 
Davoue  u.  Fanning,  2  Johns.  Ch.  252 ; 
McConnell  v.  Gihson,  12  111.  128;  Pcn- 
sonncaii  ;•.  Bleakley,  14  id.  15;  Dwight 
V.  Jilackmar,  2  Mich.  330;  Clute  r.  Bar- 
ron, id.  192  ;  Alien  i-.  Br>-an,  7  Ire.  Eq. 
276  ;  Moore  v.  Moore,  l"  Selden,  256  ; 
Conger  r.  Ring,  1 1  Barh.  356  ;  White  v. 
Trotter,  14  Sm.  &  Marsh.  30;  Midioud 
r.  GirofI,  4  How.  503  ;  Green  v.  Sargcant, 
23  Verm.  466.  Unless  the  jirincijial 
oliject,  the  transaction  stands  good  ;  and  a 
third  party  cannot  open  it.  Jackson  v. 
Van  Dalfsen,  5  Johns.  43;  Jack.son  i». 
Walsh,  14  ill.  4<i7  ;  Williams's  Ex'rs  v. 
Marshnll,  4  (i.  &  ,Jolin<.  376  ;  Litchfield 
V.  Ciidworth,  15  l'ick.31  ;  I'itt  r.  Petway, 
12  Ire.  L.  69.  How  far  a  court  o/'lmr,  at 
the  instance  of  the  principal,  will  go  in 
avoidintr  such  sales  or  puirhascs  hy  the 
agent  fur  iiis  own  l>encfit,  is  not  <iuite 
clear.  Prohahly  in  no  jurisdiction  where 
chancery  powers  have  existed  from  the 
beginning,  and  where  courts  of  law  have 
not  been  compelled  to  act,  iu  order  to  pre- 


vent parties  from  being  without  remedy, 
would  it  be  held  that  a  sale  by  an  agent  to 
himself  is  avoided  at  law  \>y  the  mere  dis- 
sent of  the  principal,  without  proof  of 
fraud,  or  breadi  of  a  positive  instruction 
to  make  sale  to  some  third  i)arty.  From 
the  language  of  the  court  in  Jackson  v. 
Walsli,  14  Johns.  414,  415,  it  may  be  in- 
ferred that  if  A,  as  executor,  sell  land  to 
B,  and  B  on  the  same  day  reconvcy  to  A, 
the  legal  title  is  vested  in  A,  in  the  ab- 
sence of  actual  fraud.  And  there  is  a 
strong  intimation  in  Williams's  Ex'rs  v. 
Marshall,  4  G.  &  Johns.  376,  380,  that 
even  if  it  be  a  chattel  interest  that  is  sold, 
the  principal,  desiring  to  set  aside  the  sale 
merely  on  the  ground  that  tlie  agent  was 
himself  the  )>urchaser,  must  resort  to 
equity.  And  so  it  seems  to  be  held  in 
Massachusetts  :  HaiTington  v.  Brown,  5 
Pick.  521, /)er  ci/r. ;  Shelton  r.  Homer,  5 
JSIetc.  467.  In  Perkins  r.  Thompson,  3 
N.  H.  144,  it  was  decided  that  a  deputy 
slicritt'  wjio  on  selling  goods  seized  upon 
an  execution,  was  himself  the  piu'chaser, 
thereby  became  guilty  of  a  conversion,  and 
was  liable  in  trover;  ])ut  the  amount  paid 
for  the  goods  was  allo#ed  to  be  given  in 
evidence  in  mitigation  of  damages.  At 
that  time,  however,  the  New  Hampshire 
courts  jiossessed  no  etjuitablc  jurisdiction. 
And  see  Lessee  of  Lazarus  r.  Bryson,  3 
Biiin.  54.  In  New  Jersey,  the  court,  in 
order  to  give  relief  at  law, "held  that  a  sale 
to  himself  by  an  executor,  administrator, 
or  trustee,  intrusted  with  the  sale  of  real 
estate,  must  be  considered  al>sitlul<Ji/  void 
by  common  law.  Den  r.  Hammel,  3 
liarrison,  74,  81.  See  Mackintosh  v 
Barber,  1  Bing.  50. 

[811 


IT 


THE   LAAV   OF   CONTRACTS. 


[book  I. 


of  keeping  a  correct  account  of  all  money  transactions,  and 
rendering  the  same  to  the  princijjal  with  proper  frequency,  or 
whenever  called  on.  {k)  The  court  has  compelled  the  rendering 
of  such  account  after  twenty  years  had  elapsed.  But,  in  gen- 
eral, after  a  considerable  time  has  elapsed,  and  there  are  no  cir- 
cumstances to  repel  the  presumption  of  an  account  rendered, 
accepted,  and  settled,  the  jury  are  instructed  to  make  that  pre- 
sumption. [I)  The  agent  of  an  agent  is  generally  accountable 
only  to  his  own  principal,  and  not  to  *the  principal  of  the  party 
for  whom  he  acts;  that  is,  only  his  immediate  employer  can 
call  him  to  account,  [m] 

If  an  agent,  without  necessity,  has  mixed  the  property  of  his 
principal  with  his  own,  in  such  a  way  that  he  cannot  render  an 
account  precisely  discriminating  between  the  two,  the  whole  of 
what  is  so  undistinguishable  is  held  to  belong  i^  the  prin- 
cipal ;  (w)  for  it  was  the  duty  of  the  agent  to  keep  the  property 
and  the  accounts  separate,  and  he  must  bear  the  responsibility 
and  the  consequences  of  not  doing  so. 

As  the  principal  is  entitled  to  receive  from  the  agent  property 
intrusted  to  him,  with  its  natural  increase,  (o)  he  may  charge 
the  agent  with  interest  for  balances  in  his  hands,  unless  the 
nature  of  the  transaction,  or  evidence,  direct  or  circumstantial, 


{h)  Topham  v.  Braddick,  1  Taunt. 
572 ;  Lord  Chcdworth  v.  Edwards,  8  Ves. 
49  ;  White  r.  Lady  Lincoln,  8  Ves.  363  ; 
Lord  Hixrdwieke  v.  Vernon,  14  Ves.  510; 
Lady  Ormond  v.  Hutchinson,  13  Ves.  47  ; 
Lupton  V.  White,  15  Ves.  436;  Pearse  v. 
Green,  1  Jac.  &  Walk.  135  ;  Motley  v. 
Motley,  7  Ire.  Eq.  211.  See  as  to  the 
classes  of  person  whom  equity  will  com- 
pel to  account,  Terry  v.  Waclier,  15  Sim. 
448.  —  It  seems  that  where  the  agent  has 
made  a  mistake  in  the  account,  he  will  not 
be  bound  by  the  adtount  as  given,  although 
his  principal  have  acted  u]ion  the  pre- 
sumption of  its  correctness  in  his  deal- 
ings with  third  parties  —  provided  there 
was  ground  from  which  the  principal 
might  reasonably  have  inferi-ed  the  exist- 
ence of  the  error.  In  the  case  adjudged, 
the  princi]ial  like  the  agent  was  a  broker, 
and  the  mistake  in  the  account  was  one 
which  a  knowledge  of  the  usage  of  the 
stock  market  might  have  enabled  him  to 
detect.     Dails  v.  Lloyd,  12  Q.  B.  531. 

(/)  Topham  v.  Braddick,  1  Taunt.  571. 

[82] 


(m)  Stephens  v.  Badcock,  3  B.  &  Ad. 
354,  where  it  was  held  that  mongy  had  and 
received  could  not  be  maintained  against  an 
attorney's  clerk,  who,  in  the  absence  of  his 
master,  and  authorized  by  him,  I'eceived 
certain  money  duo  to  the  plaintiff'  which 
the  attorney  had  been  employed  by  the 
plaintiff'  to  collect ;  although  the  absence 
of  the  attorney  (who  proved  to  be  in  a 
state  of  insolvency)  continued,  and  the 
defendant  had  not  paid  over  the  money  to 
him  or  his  estate.  The  agent  when  he 
received  the  money  bad  given  a  receipt 
signed  "for  Mr.  S.  J.  [the  attorney],  J. 
B."  [the  defendant].  See  also,  Pinto  v. 
Santos,  5  Taunt.  447  ;  Myler  v.  Fitz- 
patrick,  Madd.  &  Geld.  360." 

(n)  Lupton  v.  White,  15  Ves.  436,  440  ; 
Chedworth  v.  Edwards,  8  Ves.  46;  Wren 
V.  Kirton,  11  Ves.  377;  Hart  v.  Ten 
Eyck,  2  Johns.  Ch.  62,  108. 

'(o)  Brown  v.  Litton,  1  P.  Wms.  141  ; 
Massey  v.  Davies,  2  Ves.  Jr.  317;  Dip- 
lock  i".  Blackburn,  3  Camp.  43 ;  Short  v. 
Skipwith,  1  Brock.  103. 


CH.  III.] 


AGENTS. 


-77 


shows  that  the  intention  of  the  parties  was  otherwise,  (p)  This 
may  be  inferred,  for  instance,  where  there  has  been  a  long  ac- 
cumulation, and  the  money  has  lain  useless  in  the  agent's 
hands,  and  the  principal  has  known  this.  (7) 


ip)  Dodge  r.  Perkins,  9  Pick.  368,  388. 
"  Upon  tlie  principles  of  the  common  law, 
wc  think  it  clear  that  interest  is  to  be 
allowed,  where  the  law  by  implication 
makes  it  the  duty  of  the  party  to  pay  over 
the  money  to  the  o\vncr,  without  any  pre- 
vious demand  on  his  part."     Putnam,  J. 

As  to  receivers,  see v.  JoUand,  8 

Ves.  72. 


(q)  Lord  Fllenhorouf/k  seems  to  have 
l)ccn  of  opinion  in  Kogers  v.  Boehm,  2 
Esp.  704,  that  neither  in  law  nor  in 
equity,  if  money  had  been  remitted  to  an 
agent,  and  he  snfiered  it  to  remain  dead 
in  his  hands,  could  he  be  made  liable  for 
interest ;  though  he  should  be  chargeable 
with  interest  if  he  mixed  the  money  with 
his  own,  or  made  anv  use  of  it. 

'   [83] 


78  THE  LAW  OF  CONTRACTS.  [BOOK  I. 


CHAPTER  IV. 

FACTORS   AND   BROKERS. 

Sect.  I.  —  Who  is  a  Factor,  and  who  a  Broker. 

The  Factor  is  intrusted  with  the  property,  which  is  the  sub- 
ject-matter of  the  agency  ;  the  Broker  is  only  employed  to  make 
a  bargain  in  relation  to  it.  The  compensation  it^  both  is  usu- 
ally a  commission  ;  and  when  the  agent  guarantees  the  pay- 
ment of  the  price  for  which  he  has  sold  the  goods  of  his  prin- 
cipal, then  the  commission  is  larger,  as  it  includes  a  compensa- 
tion for  this  risk.  In  this  case  he  is  said  in  the  books  to  act 
under  a  del  credere  commission.  But  this  phrase  is  seldom 
used  in  this  country,  nor  indeed  is  the  word  factor  often  em- 
ployed by  mercantile  men.  The  business  of  factors  is  usually 
done  by  commission  merchants,  who  are  generally  called  by 
that  name,  and  who  do  or  do  not  charge  a  guarantee  commis- 
sion as  may  be  agreed  upon  by  the  parties.  But  the  charge  of 
a  guarantee  commission  gives  the  factor  no  increased  authority 
over  the  property,  (r) 

SECTION    II. 

OF   FACTORS   UNDER   A   COMMISSION. 

Whether  ^jpfactor  under  a  del  credere  commission  becomes 
thereby  a  principal  debtor  to  his  principal,  or  only  a  surety,  has 
been  somewhat  doubted  ;  [s)  ■  but  it  appears  to  be  now  settled 
that  he  is  still  only  a  surety,  and  that  recourse  must  be  had  first 
to  the  principal  debtor,  on  whose,  default  only  the  factor  is 
liable,  {t)     It  seems,  however,  to  be  still  held,  that  the  promise 

(}•)  Morriss  v.  Cleasby,  4  M.  &  S.  566  ;        (s)  Grove  v.  Dubois,  1  T.  K.  112 ;  Lev- 
Thompson  ?'.  Perkins,  3  Mason,  232,  and    erick  v.  Meigs,  1  Cowen,  645,  663,  664. 
cases  cited  by  Story,  J.  (t)  Houghton  v.  Matthews,  3  B.  &  P. 

[84] 


CII.  IV.] 


FACTORS   AND   BROKERS. 


*79 


of  the  factor  to  o;uarantee  the  debt  is  not  within  the  *statute  of 
frauds,  as  a  promise  to  pay  the  debt  of  another,  (ii)  If  he  takes 
a  note  from  the  purchaser  of  the  goods,  this  note  belongs  to  his 
principal.  But  if  he  takes  depreciated  paper  he  must  make  it 
good,  (u)  If  money  be  paid  him  and  he  remits  it,  he  does  not 
guarantee  its  safe  arrival,  but  is  bound  only  to  use  proper 
means  and  proper  care,  (iv) 


SECTION    III. 


OF   THE   DUTIES   AND   THE   RIGHTS    OF   FACTORS    AND    BROKERS. 

A  broker  or  factor  is  bound  to  ordinary  care,  and  is  liable  for 
any  negligence,  error,  or  default,  incompatible  with  the  care 
and  skill  properly  belonging  to  the  business  that  he  under- 
takes, (x)  It  is  his  business  to  sell;  but  the  power  to  sell  does 
not  necessarily  include  the  power  to  pledge.  This  rule  was 
formerly  applied  with  great  severity ;  {//)    but  it   seems  to  be 

485  ;  MoiTis  v.  Clcasby,  4  M.  &  S.  566  ; 
Gall  V.  Comber,  7  Taunt.  558 ;  Peelc  v. 
Northcotc,  7  Taunt.  478 ;  Couturier  v. 
Hastic,  16  E.  L.  &  E.  562 ;  Bradley  v. 
Rlehartlson,  2.3  Verm.  720 ;  Thompson  )•. 
Perkins,  3  Mason,  2.32  ;  Woltf  r.  Koiipell, 
5  Hill,  (N.  Y.)  458.  See  Wold'  r.  Kop- 
pell,  2  Denio,  .368,  whore  conflicting  opin- 
ions are  niven  on  this  question  by  Porter 
and  Hand,  Senators. 

(«)  Swan  V.  Nesmith,  7  Pick.  220; 
Wom'r.  Koppell,  5  Hill,  (N.  Y.)  458,  S. 
C.  2  Denio,  .368;  Couturier  v.  Hastie,  16 
E.  L.  &  E.  562 ;  Bradley  v.  Richardson, 
23  Verni.  720. 

(r)  Duimell  V.  Mason,  1  Story,  543. 

(»•)  Lucas  V.  Groninp:,  7  Taunt.  164  ;  in 
Mulder  r.  Bohlens,  2  Wasli.  C.  C.  378, 
the  defendants  received  consi};nn\ents  from 
tlie  jilaintilF,  aiid  en<ra<;ed  to  sell  tiiein  on 
a  del  rndiic  commission,  and  to  ;ruaran- 
tee  tlie  debts.  Tiiey  sold  to  one  Walters 
part  of  the  i^oods,  and  when  the  money 
for  wliich  tiic  poods  were  sobl  I^Minic 
due,  they  took  Walter's  l)ill  of  ex^mn;xe 
for  the  amount,  and  remitted  llie  same  to 
the  plaintitV.  Tiiey  also  purciiascd  sm- 
other hill  of  one  Imbert,  wliicli  tlicv  also 
remitted  to  the  plaintift',  in  ])art  ])iiyment 
for  sales  of  his  goods.     Walters  and  Im- 


VOL.  I. 


8 


bcrt  failed,  and  the  liills  were  protested  ; 
and  this  action  was  brought  to  recover 
the  amount  on  defendants'  guarantee. 
WdshiiKjlon,  J. :  "  The  guaranty  of  the 
defendants  extended  no  further  than  to  the 
sales,  and  receipts  of  tlie  money  arising 
fi-om  them.  As  to  Imbert's  iiill,  there- 
fore, there  is  no  pretence  for  charging  the 
defendants  with  that,  as  it  was  a  bill  pur- 
einised  by  the  defendants,  from  a  man  in 
good  credit,  and  it  was  purcliased  for  the 
l)urposc  of  a  remittance,  as  the  defendants 
had  l)een  directed.  But  tlie  guaranty  ex- 
tends to  Waiter's  bill,  wliicii  was  not  pur- 
chased with  the  jn'oceeds  of  tlie  plaintiff's 
goods,  but  was  given  by  a  purcliaser  of 
those  goods  instead  of  money.  If  the  de- 
fendants were  bound  to  guarantee  the 
])ayment  of  tliis  del)t  when  contracted,  the 
guaranty  coniinucs,  because  a  bill  which 
is  dislionored  is  no  j)avmcnt." 

(.r)  Vere  v.  Smith,  "l  Vent.  121. 

(//)  The  factor  cannot  pledge  the  goods 
of  his  ))rincipal  as  security  for  his  own 
debt.  Paterson  v.  Tasli,  "2  Str.  1178. 
The  in-incipal  may  recover  goods  pledged 
liy  tlie  factor,  by  tendering  to  liim  liie  sum 
due  to  him,  withf)ut  any  teinler  to  the 
jiawnce.  Daubigny  ?•.  Duval,  5  T.  R. 
604;    M'Combie   v.   Davies,   7  East,  5;. 

[85] 


80* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


now  the  law,  aided  by  some  statutes  both  of  England  *and 
of  this  country,  (z)  that  he  may  pledge  the  goods  for  advances 
made  in  good  faith  for  his  principal,  and  perhaps  otherwise  if 
distinctly  for  the  use  and  benefit  of  the  principal,  (a)  or  for  ad- 
vances made  to  himself  to  the  extent  of  his  lien  ;  (b)  or,  perhaps 
generally,  if  the  owner  has  clothed  the  factor  with  all  the  indicia 
of  ownership  so  as  to  enable  him  to  mislead  others,  and  the 
pledgee  had  no  notice  or  knowledge  that  he  was  not  owner;  (c) 
and  he  may  pledge  negotiable  paper  intrusted  to  him  by  liis 
principal,  to  a  party  who  has  no  notice  or  knowledge  of  his 
want  of  title,  (d) 

He  is  bound  to  obey  precisely  positive  instructions,  but  not 
mere  wishes  or  inclinations  ;  (e)  and  will  be  justified  in  depart- 
ing from  precise  instructions  if  an  unforeseen  emergency  arises, 
and  he  acts  in  good  faith  and  for  the  obvious  and  certain  ad- 
vantage of  his  principal.  (/) 

Factors  or  brokers  must  conform  to  the  usages  of  the  busi- 
ness ;  and  they  have  the  power  such  usages  would  give  them, 
and  can  bind  the  principal  only  to  a  usual  obligation.  A  factor 
need  not  advise  insurance,  still  less  make  insurance  ;  but  having 
possession  of  the  goods,  he  may  insure  them  for  the  owner,  (g-) 
A  factor  has  discretionary  power  in  regard  to  the  time,  mode, 


Solly  V.  Rathhone,  2  M.  &  ,S.  298.  Sec 
also  De  Bouchoiit  v.  Goldsmid,  5  Vcs. 
211  ;  Miu-tini  v.  Coles,  1  M.  &  S.  140; 
Fielding  v.  Ivvmcr,  2  Br.  &  Bing.  G39; 
Queiroz  v.  Truenian,  3  B.  &  C.  342; 
Kinder  v.  Shaw,  2  Mass.  398 ;  Odiornc  v. 
Maxcy,  13  Mass.  178;  Bowie  v.  Napier, 
1  JMcCord,  1  ;  Van  Amringe  v.  Peabody, 
1  Mason,  440;  Whitaker  on  Lien,  123, 
136  ;  Rodriguez  i\  Heffernan,  5  Johns. 
Ch.  429.  He  cannot  barter  the  goods  of 
his  principal,  btit  must  sell  them  outright. 
Guerreiro  v.  Peilc,  3  B.  &  Aid.  616. 

(z)  See  ante,  p.  51*  n.  {(/),  for  statutes 
which  regulate  the  power  of  the  factor  to 
pledge  the  goods  of  his  i-)rinci])al.  For 
interpretations  of  these  acts  see  Stevens  v. 
Wilson,  6  Hill,  (N.  Y.)  512,  S.  C.  3 
Dcnio,  472  ;  Zachrison  v.  Ahnian,  2  Sand. 
Sup.  Ct.  68;  Jennings  v.  Merrill,  20 
Wend.  1  ;  Navulshaw  i\  Brownrigg,  13 
E.  L.  &E.  261. 

{,i)  Man  V.  Shiffncr,  2  East,  523; 
M'Combie  v.  Davics,  7  East,  5;  Solly  v. 

[86] 


Rathbonc,  2  M.  &  S.  298;  Tnltncy  v. 
Keymer,  3  Esp.  182  ;  Urquhart  v.  Mclver, 
4  Johns.  103,  116.  "A  factor  may  de- 
liver the  possession  of  goods  on  which  he 
has  a  lien  to  a  third  person,  with  notice  of 
the  lien  and  with  a  declaration  that  the 
transfer  is  to  such  person  as  agent  of  the 
factor,  and  for  his  benefit."     Kent,  C.  J. 

(b)  Ibid. 

(c)  Boyson  v.  Coles,  6  M.  &  S.  14  ; 
Williams  r.  Barton,  3  Bing.  139. 

(d)  Collins  If.  Martin,  1  B.  &  P.  648; 
Treuttell  v.  Baraudon,  8  Taunt.  100. 

(e)  Brown  v.  McGran,  14  Peters,  479  ; 
Ekins  r.  Marklish,  Ambler,  184;  Lucas  u. 
Groning,  7  Taunt.  164. 

(/)  "judson  ).'.  Sturges,  5  Day,  556 ; 
Dn'immond  v.  Wood,  2  Caines,  310; 
LiJfc-d  V.  Graves,  3  Caines,  226 ;  Law- 
Icr  r.  Kcaquick,  1  Johns.  Cas.  174;  For- 
resticr  v.  Bordman,  1  Story,  43. 

(i))  Do  Forest  v.  The  Fire  Insurance 
Co.  1  Hall,  84. 


CH.  IV.]  FACTORS   AND   BROKERS.  *81-*82 

and  circumstances  of  a  sale  ;  but  he  must  exercise  this  discre- 
tion in  good  faith  ;  and  if  he  *hastens  a  sale  improperly,  and 
without  good  reason,  it  is  void.  (//) 

A  factor  is  a  general  agent  from  the  nature  of  his  employ- 
ment; and  if  he  be  known  as  a  general  commission  merchant 
or  factor,  he  binds  the  principal  who  employs  him,  although 
for  the  first  time,  by  any  acts  fairly  within  the  scope  of  his  em- 
ployment, even  if  they  transcend  the  limits  of  his  instructions  ; 
if  the  party  dealing  with  him  had  no  knowledge  of  those  limits. 

If  he  sends  goods  to  his  principal,  contrary  to  order  or  to  his 
duty,  the  principal  may  refuse  to  receive  them,  and  may  return 
them,  or  if  the  nature  of  the  goods  or  other  circumstances  make 
it  obviously  for  the  interest  of  the  factor  that  they  should  be 
sold,  the  principal  may  sell  them  as  his  agent,  (i) 

If  he  have  no  del  credere  commission,  he  may  still  be  person- 
ally liable  to  his  principal ;  as  where  he  makes  himself  liable  by 
neglect  or  default;  or  if  he  sells  the  goods  of  several  principals 
to  one  purchaser,  on  credit,  taking  a  note  to  himself,  and  get- 
ting the  same  discounted,  (j)  Or  if  he  sells  on  credit,  and 
when  that  expires  takes  a  note  to  himself,  {k)  But  if  he  sells 
on  credit  and  at  the  time  takes  a  negotiable  note  which  is  not 
paid,  (he  loss  falls  on  the  principal,  although  the  note  was  pay- 
able to  the  factor.  (/)       * 

A  foreign  factor  is  one  who  acts  for  a  principal  in  another 
country ;  a  domestic  factor  acts  in  the  same  country  with  his 
principal.  A  foreign  factor  is,  as  to  third  parties,  under  ordi- 
nary circumstances,  a  principal.  And  though  his  principal  may 
sue  such  third  parties,  they  cannot  sue  his  principal,  for  they 
act  with   the  factor  only,  and  on  the  factor's   credit.     But  *it 

(/i).Shaw  V.  Stone,  1   Cush.  228,  248.  (/)  Kemp  v.  Pryor.  7  Vcs.  Jr.  237,  240, 

"But  it  seems,  if  the  stile  lie  luirneil  in  247;  Cornwall  v.   Wilson,   1    Ves.   Sen. 

order  to  ensiiile  the  faetor  to  realize  his  atl-  509. 

vanees,  and  it  is  not  made  in  due  course  (  /)  Jackson  v.  Baker,  1  Wa.sh.  C.  C. 

of  business,  it  will  ho  void."  ....  The  .394,  S.  C.  445 ;    Johnson  v.  O'Hara,  5 

agents  "were  hound  a.s  factors  to  sell  at  Leijrh,   456.       But    not    necessarily    so. 

reasonaMe  and  fair  j)riccs  ;   and  it  would  Goodenow  f.  Tyler,  7  Mass.  30 ;  Corlies 

be  contrary  to  their  duty,  and  a  iVauTulent  v.  Cummin^,  G  Cowen,  181. 

proceedin;^  on  their  part  to  sell  the  floods  (k)  Ilosmer  v.  Beebe,  2  Martin,  N.  S. 

at  a  greatly  reduced  j>riee,  or,  in  common  368. 

parlance,  to  sacritice  them,  in  order  the  (/)  Messier  r.  Amerv,   1    Ycatcs,  540; 

more    hastily   to   realize    the   j)roeeeds."  Goodenow  c.  Tyler,  7  Mass.  36. 
Shatv,  C  J. 

[87] 


82- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


seems  to  be  otherwise  with  the  domestic  factor.  A  third  party 
dealing  with  him  may  have  a  claim  on  his  principal,  unless  it 
can  be  shown  that  credit  was  given  to  the  factor  exclusively,  {m) 
That  is,  in  the  case  of  a  foreign  factor  the  presumption  of  law 
is,  that  credit  was  given  to  him  exclusively ;  in  the  case  of  a 
domestic  factor,  that  credit  is  given  to  his  principal ;  but  the 
presumption  may  be  said  to  exist  only  in  the  absence  of  evi- 
dence ;  for  the  intention  of  the  parties,  to  be  drawn  from  the 
terms  of  the  contract  and  from  circumstances,  will  determine 
whether  the  party  dealing  with  the  factor  dealt  with  him  as 
agent  or  as  principal,  [mm)  It  seems  very  nearly  and  perhaps 
quite  settled,  that  for  the  purpose  of  this  rule,  our  States  are 
not  foreign  countries  to  each  other,  (w) 


(m)  Paterson  r.  Gandascqui,  15  East, 
62 ;  Addison  v.  Gandasseqni,  4  Taunt. 
574.  The  following  authorities  distin- 
guish the  foreign  and  domestic  factors  : 
Gonzales  v.  Sladen,  Bull.  N.  P.  130;  De 
Gaillon  v.  L'Aigle,  1  B.  &  P.  368; 
Thomson  v.  Davenport,  9  B.  &  C.  87 ; 
Kirkpatrick  v.  Stainer,  22  Wend.  244. 

{■mm)  Green  v.  Kopka,  2  Jur.  N.  S. 
1049.  In  this  case  it  is  declared  that 
"there  is  no  rule  of  law  that  a  person 
contracting  in  England  as  agent  of  a  foi'- 
eign  princi])al  is  personally  liable  on  the 
contract.  In  all  cases,  whether  the  prin- 
cipal or  agent  is  liable  is  a  question  of  in- 
tention, to  be  ascertained  by  the  terms  of 
the,  contract  and  the  surrounding  circum- 
stances." 

(n)  In  Thomson  v.  Davenport,  9  B.  & 
Cr.  78,  a  purchaser  in  Liverpool  repre- 
sented that  he  bought  for  persons  in  Scot- 
land, liut  did  not  mention  their  names. 
The  seller  did  not  inquire  who  they  were, 
and  del)itcd  the  party  jinrchasing ;  and  it 
was  held  that  he  might  afterwards  sue  the 
principal  for  the  price.  Lord  Tenterden, 
C.  J.,  said  :  "  There  may  be  another  case, 
and  that  is  where  a  British  merchant  is 
buying  for  a  foreigner.  Accoi-ding  to  the 
universal  understanding  of  merchants,  and  of 
cdl  persons  in  trade,  the  credit  is  then  con- 
sidered to  be  given  to  the  British  buyer, 
and  not  to  the  foreigner.  In  this  case,  the 
buyers  lived  at  Dumfries ;  and  a  question 
might  have  been  raised  for  the  considera- 
tion of  the  jury,  whetlier,  in  consequence 
of  their  living  at  Dumfries,  it  may  not 
have  been  understood  among  all  persons 

[88] 


at  Liverpool,  where  there  are  great  deal- 
ings with  Scotch  houses,  that  the  plaintiffs 
had  given  credit  to  M'Kune  only,  and  not 
to  a  person  living,  though  not  in  a  foreign 
country,  yet,  in  that  part  of  the  king's 
dominions  which  rendered  him  not  amen- 
able to  any  process  of  our  courts.  But, 
instead  of  directing  the  attention  of  the 
Recorder  to  any  matter  of  that  nature,  the 
point  insisted  upon  by  the  learned  counsel 
at  the  trial  was,  that  it  ought  to  have  been 
part  of  the  direction  to  the  juiy,  that  if  they 
were  satisfied  the  plaintiffs,  at  the  time  of 
the  ordel»being  given,  knew  that  M'Kune 
M'as  buying  goods  for  another,  even  though 
his  principal  might  not  he  made. known  to 
tliem,  they,  by  afterwards  debiting  M'Kune 
had  elected  liim  for  their  debtor.  The  point 
made  by  the  defendants'  counsel,  there- 
fore, was,  that  if  the  plaintiffs  knew  that 
M'Kune  was  dealing  with  them  as  agent, 
though  they  did  know  the  name  of  the 
princijjal,  they  could  not  turn  round  on 
him.  Tlie  Recorder  thought  otherwise : 
he  thought  that  though  they  did  know  that 
M'Kune  was  buying  as  agent,  yet  if  they 
did  not  know  who  his  principal  really  was 
so  as  to  be  able  to  write  him  down  as  their 
debtor,  the  defendant  was  liable,  and  so  he 
left  the  question  to  the  jury,  and  I  tiiink 
he  did  right  in  so  doing.  The  judgment 
of  the  court  below  must  therefore  be  af- 
fir«icfl. — In  Kirkpatrick  v.  Stainer,  22 
Wend.  244,  an  agent  of  ii  foreign  mercantile 
house  who  induced  a  merchant  here  to 
make  a  shipment  of  goods  to  his  princi- 
pals, to  be  sold  on  commission,  and  engaged 
that  insurance  should  be  effected  either  here 


CH.  IV.] 


FACTORS   AXD    BROKERS. 


*S3 


*Tlie  factor  and  the  principal  may  sometimes  have  conflicting 
claims  against  a  purchaser ;  as  the  factor  for  his  lien  for  ad- 
vances, &c.,  and  the  principal  for  his  price.     In  general  it  may 


or  in  Europe  on  the  property  shi[)po<l,  had 
been  lielil  liy  tlie  Supreme  Court  not  to  l)e 
ptrsoiKiHi/  liable  for  a  breach  of  the  ai:;:ree- 
ment  to  insure ;  the  action,  if  maintainuble, 
lt\y  only  a<cainst  the  principals.  This  de- 
cision of  the  Supreme  Court  was  confirmed 
by  the  •  Court  of  Errors,  the  Chancellor, 
(Walworth,)  with  some  other  memiiers  of 
the  conrt,  dissentinjr  for  reasons  which  cer- 
tainly seem  to  have  much  weij^lit,  althou;;h 
they  did  not  suffice  to  convince  a  majority 
of  the  Court  of  Errors.  On  the  precise 
question  before  us,  the  Chancellor  says  : 
"Upon  a  careful  examination  of  the  law 
on  this  subject,  I  have  arrived  at  the  con- 
clusion that  there  is  a  well-settled  distinc- 
tion between  the  ])crsonal  liability  of  an 
agent,  who  contracts  for  the  benelit  of  a 
domestic  ])rincipal,  and  one  who  contracts 
for  a  principal  who  is  domiciled  in  a  foreign 
country.  I  do  not  think  that  by  our  com- 
mercial usage  it  is  applicable  to  the  case 
of  a  principal  wlio  is  domiciled  in  another 
State  of  the  Union;  as  the  interests  of 
trade  do  not  seem  to  require  it.  Besides, 
it  does  not  appear  to  have  been  applied  in 
England  to  the  case  of  a  principal  resid- 
ing in  Scotland  ;  although  in  the  ciisc  of 
Thomson  r.  Davenport,  before  referred  to. 
Lord  Tenterden  supposed  it  might  have 
been  a  proper  subject  of  inquiry  for  the 
jury,  whether  there  was  not  a  usage  of 
trade  at  Liverpool  to  give  the  credit  to  the 
agent  where  the  principal  resided  in  Scot- 
land. So  far  a-s  the  law  is  settled  on  the 
subject,  however,  it  only  applies  to  a  prin- 
cipal domiciled  in  a  foreign  country  ;  or, 
in  the  language  of  the  common  law,  'be- 
yond the  seiis.'  "  Senator  Verplank  gave 
the  only  other  opinion.  lie  thought  the 
Supreme  Court  right,  and  the  majority  of 
the  Court  of  Errors  agreed  with  him.  Ijiit 
he  rests  his  oj)iniun  on  the  ground,  that 
the  English  rule,  that  the  factor  of  a 
foreign  |)rincipal  is  himself  liable  to  the 
exclusion  of  the  )>riucipal,  re.<ts  entirely 
upon  the  custom  of  trade  in  Eugland,  ami 
is  no  jmrt  of  tin;  common  law,  nor  of  the 
lav.-merchant  generally ;  and  is  nt)t  the 
law  of  this  country,  unless  a  ]>articular 
custom  could  be  ))roved  wliicli  should  give 
tluit  elfect  to  the  contract.  Ami  therefore, 
in  the  Hbsence  of  such  evidence  of  custom, 
f  he  principal  ii  liable  as  in  any  other  cases 

8* 


of  contracts  by  an  agent  for  a  principal. 
Such  would  seem  to  be  the  authority  of 
this  case ;  but  we  nevertheless  hold  the 
rule  to  be  as  stated  in  our  text.  In  Tain- 
tor  V.  Prendergast,  3  Hill,  (N.  Y.)  72, 
Cowen,  J.,  says,  "  This  suit  was  brought 
to  recover  a  sum  of  money  advanced  to 
the  defendant,  a  citizen  of  this  State,  in 
part  ])ayment  fur  a  (piantity  of  wool  which 
he  agreed  to  deliver  to  the  plaintilf 's  agent. 
The  contract  was  made  I)y  the  lattm-  witli- 
out  disclosing  the  name  of  his  principal, 
who  was  a  merchant  residing  at  ILirtford, 
Connecticut.  The  agent  was  a  resident  of 
this  StiUe.  The  wool  was  not  delivered 
as  agreed,  and  the  question  is,  whether  an 
action  can  be  maintained  by  the  ]n-incipal. 
It  ma}^  be  admitted,  as  was  urged  in  the 
argument,  that  whether  the  ]jrincij)al  be 
considered  a  foreigner  or  not,  his  agent 
omitting  to  disclose  his  name,  would  be 
])ersonally  liable  to  an  action.  Even  in 
case  of  a  foreign  priiicijial,  however,  I  ap- 
jirehend  it  would  i)C  too  strong  to  say,  that 
when  discovered  he  would  not  be  liable 
for  the  price  of  the  commodity  purchased 
by  his  agent.  This  may  indeed  be  s;rid, 
wlien  a  clear  intent  is  shown  to  give  an 
exclusive  credit  to  the  agent.  I  admit 
that  such  intent  may  be  inferred  from  the 
custom  of  trade,  where  the  iturchaser  is 
known  to  live  in  a  foreign  country.  No 
custom  was  shown  or  jiretended  in  the 
case  at  bar ;  and  where  the  jiariies  reside 
in  ditferent  States  under  the  same  confed- 
eration, this  has  been  held  essential  to 
exonerate  the  principal.  (Thomson  v. 
I)aven](ort,  9  B.  &  Cr.  78.)  It  will  be 
seen  by  this  case  and  others  referred  to  by 
it,  that  the  usual  ajid  decisive  indication 
of  an  exclusive  credit  is  where  the  credi- 
tor knows  there  is  a  foreign  ]>rinci](al,  but 
makes  his  charge  in  account  against  the 
agent.  If  the  seller  be  kept  in  ignorance 
that  he  is  selling  to  an  agent  or  factor,  I 
am  not  aware  of  a  ca.se  wliich  denies  a 
concurrent  remedy."  We  understaml  the 
court  to  mean,  that  wheiv  the  i)rinci|tal 
])urchaser  is  known,  and  is  ku(nvn  to  live 
in  a  foreign  country,  there  tlie  existing 
custom  of  trade  leads  to  the  inference  that 
credit  was  given  exclusively  to  the  agent. 
And  this  we  think  the  true  rule. 

[«9] 


84*  THE   LAW   OF   CONTRACTS.  [BOOK    T. 

be  said  that  a  purchaser  who  pays  to  either,  will  be  protected 
against  the  other,  if  he  have  no  notice  or  knowledge  of  any 
valid  claim  or  right  belonging  to  the  other,  (o)  But,  excepting 
when  such  rights  exist  in  the  factor,  the  principal  has  a  higher 
right  than  he,  and  may  enforce  a  contract  with  a  third  party,  for 
his  own  benefit. 

*A  factor  may  buy  and  sell,  sue  and  be  sued,  collect  money, 
receive  payments,  give  receipts,  &c.  in  his  own  name ;  but  a 
broker  only  in  the  name  of  his  principal,  (p)  A  factor  has  a 
lien  on  the  property  in  his  hands,  for  his  commission,  advances, 
and  expenses  ;  (q)  but  as  possession  is  necessary  to  give  a  lien, 
a  broker  has  no  lien,  (r)  In  the  transaction  of  business  these 
relations  are  sometimes  confounded,  and  it  is  not  always  easy 
to  distinguish  between  the  factor  and  the  broker.  The  best 
test,  however,  is  in  the  fact  of  possession  ;  but  even  with  this  a 
party  may  sometimes  be  held  to  be  a  broker,  (s)  Neither  can 
delegate  his  authority,  [t)  The  broker  may  certainly  be  the 
agent  of  both  parties,  and  often  is  so ;  but  it  would  seem  from 
the  nature  of  his  employment,  that  the  factor  can  be,  generally 
at  least,  the  agent  only  of  the  party  who  employs  him. 

Neither  has  a  right  to  his  commissions,  as  a  general  rule, 
until  the  whole  service,  for  which  these  commissions  are  to 
■compensate,  is  performed,  (w)  But  where  the  service  is  begun, 
and  an  important  part  performed,  and  the  factor  or  broker  is 
prevented  by  some  irresistible  obstacle  from  completing  it,  and 


(o)  Drinkwater  v.  Goodwin,  Cowper,  528.  And  the  factor  obtains  an  interest 
•251  ;  Atkyns  v.  Amber,  3  Esp.  493 ;  sufficient  to  support  his  lien,  upon  accept- 
Coppin  V.  Craig,  7  Taunt.  243 ;  Hudson  ing  a  draft  drawn  upon  the  faith  of  the 
V.  Granger,  5  B.  &  Aid.  27.  And  see  goods.  Nesmith  v.  Dyeing,  &c.  Co.  1  Cur- 
post,  418,  vol.  2,  248.  tis,  130  ;  Bank  of  Rochester  v.  Jones,  4 

ip)  Baring  r.  Corrie,  2  B.  &  Aid.  143;  Corns.  497. 
Hearshy  v.  Hichox,  7  Eng.  (Ark.)  125.  (?■)  Sec  Jordan  v.  James,  5  Ham.  99, 

{q)  Williams  v.   Littktield,   12  Wend,  -where  the  several  classes  of  liens  are  dis- 

362;  Holbrook  r.  Wight,  24  Wend.  169.  cussed,  and  the  cases  cited.     But  it  is  of 

The  factor  has  a  general  lien,  to  secure  the  very  essence  of  a  lien  that  possession 

all  advances  and  liabilities,  upon  all  goods  accom]ianies  it. 

Avhich  come  to  his  hands  as  factor.     Godin         (s)  Pickering  i\  Busk,  15  East,  38. 
V.  London  Assnr.  Co.  1  Burr.  494  ;  Hoi-         (/)   Catliu  i\  Bell,  4  Camp.  183  ;  Solly 

lingworth  v.  Tookc,  2  H.  Bl.  501 ;  Cowel  v.  Ilathbonc,  and   Cockran  v.  Irlara,  in 

V.    Simpson,    16    Ves.    276;    Stevens   v.  note  («),  2  M.  &  S.  298. 
Robins,  12  Mass.  180;  Bryce  v.  Brooks,         (»)  Ilamond   v.   Holiday,    1    C.  &   P. 

26  Wend.  367;  The  Frances,  8  Cranch,  384;    Dalton  r.   Irvin,  4  'C.  &  P.  289; 

419  ;  Dixon  v.  Stansfield,  11  E.  L.  &  E.  Broad  v.  Thomas,  7  Bing.  99. 

[90] 


CH.  IV.]  FACTORS   AND   BROKERS.  *85 

is  himself  without  fault,  there  it  would  seem  that  he  may  de- 
mand a  proportionate  compensation,  (v)  Neither  can  have  any 
valid  claim  for  his  commissions  or  other  compensation,  if  he 
has  not  discharged  all  the  duties  of  the  employment  which  he 
has  undertaken,  with  proper  care  and  skill,  and  entire  fidel- 
ity, (w)  And  for  his  injurious  default,  he  not  only  loses  his 
claim,  but  the  principal  has  a  claim  for  *damagc3.  (x)  And  if 
he  has  stipulated  to  give  his  whole  time  to  his  employer,  he 
will  not  be  permitted  to  derive  any  compensation  from  services 
rendered  elsewhere.  (//)  Neither  the  factor  nor  broker  can  ac- 
quire any  claim  by  services  which  are  in  themselves  illegal  or 
immoral,  or  against  public  policy,  (c) 

If  a  factor,  with  power  to  sell,  has  made  advances  to  his 
principal,  it  is  not  quite  certain  whether  these  advances  take 
from  the  principal  the  power  of  revocation.  From  the  cases  it 
would  seem,  that  the  weight  of  authority  in  this  country  is 
against  the  power  of  the  principal  to  revoke  an  authority  which 
has  thus  become  coupled  with  an  interest.  But  in  England  it 
seems  to  be  otherwise,  (a) 

(i-)    Ilamond    r.    Holiday,   1  C.  &  P.  (r)  Sec  note  (a),  p.  74*. 

384  ;    Broad   v.   Thomas,    '~    Bing.    99 ;  (//)  Tlioiiij)son  v.   Ilavclock,  1    Camp. 

Read  r.  Hann,  10  B.  &  C.  438.  527  and  (.lscs  cited  in  note;  Massey  f. 

((f)  Dunew  r.  Davcrell,  3  Camp.  451  ;  Davics,   2    Ves.    Jr.    317;    Gardner    v. 

Ilamond    r.    Holidav,   1    C.   &    P.    384;  M'Cutclieon,  4  Bcavan,  534. 

Wliite  r.  Chapman, "l  Stark.  113;  llnrst  (r)  Haines    v.    Busk,    5    Taunt.    521; 

V.  Hohlinjr,  3  Taunt.  32  ;  Uod^'C  v.  Tile-  Joseplis  v.  Pclilicr,  3  B.  &  C.  G39  ;  Wy- 

ston,   12  Pick.  328.     Sec   also   Shaw  v.  hard  v.   Stanton,  4  Esp.    179  ;   Buck  v. 

Arden,    9   Bin<r.    287  ;    Hill   v.   Feather-  Buck,   1   Camp.  547  ;  and  Bex  c.   Shat- 

6tonhau<,d),  7  Bing.  569.     As  to  his  duty  ton,   in   note;    Armstrong   v.  Toler,    11 

to    keep   accounts,   see   Wliite   v.   Lady  Wheat.  258. 

Lincoln,  8  Ves.  3G3.  He  must  not  coii-  (a)  Sec  note  (//),  p.  58,  in  which  the 
found  the  principal's  property  with  his  cases  on  this  question  are  given  in  con- 
own.  Lupton  V.  White,  15  Ves.  432.  nection  with  the  more  general  suhjcct  of 
He  cannot  recover  his  compensation  if  he  a  revocation  of  an  autliority  coupled  with 
has  emhezzled  the  principal's  funds,  al-  an  interest, 
though  it  exceeds  the  amount  cmitczzlcd. 
Turner  v.  llohinson,  6  C.  &  P.  IG,  n.  (g). 

[91] 


86  THE  LAW  OF  CONTRACTS.  [bOOK  I. 


CHAPTER  V. 


SERVANTS. 


In  England  the  relation  of  master  and  servant  is  in  many 
respects  regulated  by  statutory  provisions,  and  upon  some  points 
is  materially  affected  by  the  existing  distinction  of  ranks,  and 
by  rules  which  have  come  down  from  periods  when  this  dis- 
tinction was  more  marked  and  more  operative  than  at  present. 
In  this  country  we  have  nothing  of  this  kind.  With  us,  a  contract 
for  service  is  construed  and  governed  only  by  the  general  prin- 
ciples of  the  law  of  contracts. 

The  word  servant  seems  to  have  in  law  two  meanings.  One 
is  that  which  it  has  in  common  use,  when  it  indicates  a  person 
hired  by  another  for  wages,  to  work  for  him  as  he  may  direct. 
We  may  call  such  a  person  a  servant  in  fact ;  but  the  word  is 
also  used  in  many  cases  to  indicate  a  servant  by  construction  of 
law  ;  it  is  sometimes  applied  to  any  person  employed  by  an- 
other, and  is  scarcely  to  be  discriminated  in  these  instances 
from  the  word  agent.  This  looseness  in  the  use  of  the  word 
is  the  more  to  be  regretted,  because  it  seems  to  have  given  rise 
to  some  legal  difficulties  and  questions  which  might  have  been 
avoided.  There  are  important  consequences  flowing  from  the 
relation  of  master  and  servant,  and  it  is  therefore  an  important 
question,  where  this  relation  exists,  and  how  far  it  extends. 
Thus,  if  one  wishes  to  build  or  repair  a  house,  and  contracts 
with  another,  to  do  this,  and  the  contractor  w4th  another,  and 
this  other  with  still  a  third,  for  perhaps  a  part  of  the  work',  or 
the  supply  of  materials,  and  the  servant  of  the  third  by  his  negli- 
gence injures  some  person,  has  the  injured  party  his  right  of 
action  against  the  owner  of  the  land  or  of  the  house  ?  Undoubt- 
edly if  all  employed  about  the  house  were  his  servants,  but  not 
otherwise.  So  if  an  owner  of  coaches  lets  one  with  the  horses 
and  the  coachman  for  a  definite  time  or  a  definite  journey, 
[92] 


CH.   v.]  SERVANTS.  *87-*88 

and  while  the  hirer  is  using  the  coach  the  coachman  by  his 
negligence  injures  a  person ;  has  the  *injured  party  now  an 
action  against  the  owner  ?  Yes,  if  the  coachman  were  at  the 
time  of  the  wrongful  act  his  servant,  and  not  otherwise.  Again, 
if  one  employs  a  person  to  drive  home  for  him  cattle  which 
he  has  bought,  and  gives  the  cattle  up  to  the  driver,  going 
elsewhere  himself,  and  the  driver,  or  a  person  employed  by 
the  driver,  by  his  negligence,  injures  any  one,  the  injured  person 
has,  we  think,  as  in  the  other  instances,  an  action  against  the 
original  party,  if  the  party  who  did  the  wrong  were  at  the  time 
his  servant,  and  not  otherwise.  The  general  principle  is,  that 
a  master  is  responsible  for  the  tortious  acts  of  his  servant,  which 
ivere  done  in  his  service.  It  is  certain  and  obvious  that  a  mas- 
ter is  not  responsible  for  all  the  torts  of  his  servant ;  for  those, 
for  instance,  of  which  the  servant  is  guilty,  when  they  are  en- 
tirely aside  from  his  service,  and  have  no  connection  with  his 
duties,  or  with  the  command  or  the  wish  of  his  master;  as  if  he 
should  leave  his  master's  house  at  night  and  commit  a  felony. 
There  must,  then,  be  some  principle  which  limits  and  defines  the 
rule,  respondeat  superior.  And  we  think  it  may  be  clearly  seen 
and  stated.  It  is  this  :  the  responsibility  of  the  master  grows 
out  of.  is  measured  by,  and  begins  and  ends  with  his  control  of 
the  servant,  {aa)     It  is  true  that  the  })olicy  of  holding  a  *master 

• 

(aa)  On  this  {jrounil  rests  the  distinc-  special  relation  may  occasion  a  liability 

tion,   now  well  established,  between  the  even   for   the  wilful  tort  of  the  senant. 

nc<jli<i(nrr  of  tlic    servant,  and  his   irilf'id  As  where  the  relation  is  one  of  bailment. 

and  md/icioiis  trespass:    the  act   in  either  In  Sinclair  r.  Pearson,  7  New  IIani]i.  227, 

case  bciiif^  done  in  the  coin-se  of  his  era-  P((;7.y7-,  J.,  <iivin^- the  Jud<j;incnt,  said,  "  It 

ploy.     For  the  former  the   master   mnst  is  evident,  therefore,  tliat  the  liability  of  a 

answer  ;  for  the  latter  he  is  held  not  liable,  liailee,  for  a  loss  occasioned  by  tlie  act  of 

iniless  tiie  tresjmss  is  proved  to  have  been  a  servant,  cannot  be  made  to  dejK'nd  upon 

authori/.ed  or  ratified  by  him.     JlcManus  the  cpicstion  whether  the  act  was  wilfid  or 

r.  Crickett,  1  East,  lOG  ;   Croft  c.  Alison,  otherwise  ;  or  wliether  the  servant,  in  com- 

4  B.  &  Aid.  .'i'JO  ;  Lyons  r\  Martin,  8  A.  mittiny-  it,  was  doinir,  or  forbearinfc,  wliat 

&  El.  512  ;  Gooilman  ?•.  Kcnnell,  1  M.  &  his  master  liad  directed ;  for  if  that  were 

Payne,  241,  3    C.  &   P.  1C7;  Sadler  v.  the  criterion,  the  bailee  would  never  bo 

Ilenlock,  .'?(»  E.   L.  &   E.   107;  Foster  r.  liable  for  tlie  act  or  nci:lcct  of  his  servant, 

ICssex  Bank,   17    Mass.  47'J  ;    WriLrht  i:  unless-  done  l)y  his  comnuind,  either  e.x- 

AVilcox,    r.)    AVend.    'M'.l  ;  Vanderbilt  v.  jjressed,  or  in  tact   to  be   inferred;  liut  it 

Kiclnnond   Turnpike   C"o.   2   C'omst.  479.  nmst  de])end   upon  tiie  tpiestion  wliether 

—  But  it  seems  that  wliere  the  duty  of  tlie  the  dc^^rce  of  care  and  diiifience  rcipiircd 

master  to  tlic  parly  wliose  j)roi)erty  is  in-  about  tlie  jtrcservation,  sal'c-keepinp,  i<:c., 

jured,  is  not  merely  tliat  wiiich  every  man  of  the  tliin;;  bailed,  has  been  exercised  by 

owes  to  ids  neij,'id)ur,  but  a  i)eculiar  duty  master  and  servant."     And  Ellis  v.  Tur- 

ai-ising  from  u  special  relation,  there  that  ucr,  8T.  I{.  531,  wa.s  nferivd  to,  where  a 

[  i'3  ] 


THE   LAW   OF   CONTRACTS. 


[book  I. 


to  a  reasonable  care  and  discretion  in  tlie  choice  of  a  servant 
may  cause  a  liberal  construction  of  the  rule  in  respect  to  an 
injured  party,  and  may  therefore  be  satisfied  in  some  instances 
with  a  slight  degree  of  actual  control;  but  of  the  soundness 
and  general  applicability  of  the  principle  itself,  we  do  not 
doubt ;  nor  do  we  see  any  greater  difficulty  in  the  application 
of  the  principle  than  may  always  be  apprehended  from  the  vari- 
ety and  complexity  of  the  facts  to  which  this  and  other  legal 
principles  may  be  applied.  The  master  is  responsible  for  what 
is  done  by  one  who  is  his  servant  in  fact,  for  the  reason  that 
he  has  such  servant  under  his  constant  control,  and  may  direct 
him  from  time  to  time  as  he  sees  fit ;  and  therefore  the  acts  of 
the  servant  are  the  acts  of  the  master,  because  the  servant  is  at 
all  times  only  an  instrument;  and  one  is  not  liable  for  a  person 


loss  of  part  of  a  cargo  having  occurred  in 
consequence  of  the  misconduct  of  the  mas- 
ter of  the  vessel,  and  an  action  having 
been  brought  by  the  owner  of  the  goods 
against  the  owners  of  the  vessel,  Lord 
Kenyan,  said  :  "  Though  the  loss  happened 
in  consequence  of  the  misconduct  of  the 
defendants'  servant,  the  superiors  (the  de- 
fendants) are  answerable  for  it  in  this 
action.  The  defendants  are  responsible 
for  the  acts  of  their  servant  in  those  things 
that  respect  his  duty  under  them,  tliough 
they  are  not  answerable  for  his  miscon- 
duct in  those  things  that  do  not  respect 
his  duty  to  them :  as  if  he  were  to  com- 
mit an  assault  upon  a  tiiird  person  in  the 
course  of  his  voyage." — The  rule  estab- 
lished in  McManus  v.  Crickett,  is  criti- 
cized by  Reeve,!Dom.  Rel.  357;  and  in  the 
case  of  the  Druid,  1  Wm.  Rob.  405,  Dr. 
Lushirigton  commented  in  forcililc  terms 
upon  the  hardship  of  the  rule,  and  ex- 
pressed regret  at  its  adoption. — If  a 
master  give  general  directions  which  nat- 
urally occasion  the  commission  of  a  tort 
by  the  servant  executing  them,  the  mas- 
ter is  liable,  notwithstanding  he  never 
commanded  that  particular  act.  Rex  v. 
Nutt,  Fitzg.  47  ;  Lord  Tcnterdcn,  Rex  v. 
Gutch,  M.  &  Malk.  437,  438 ;  Attorney- 
General  V.  Siddon,  I  Tyr.  49  ;  Gregory  v. 
Piper,  9  B.  &  C.  591;  Lord  Lonsdale'r.  Lit- 
tledalc,  2  H.  Bl.  267,  299  ;  Sly  w.  Edgley,  6 
Esp.  6.  And  where  the  servant  is  in  the  em- 
ploy of  the  master,  and  tlie  acts  com- 
plained of  are  done  in  the  course  of  the 
employment,  the  master  is  ^responsible 
although  the  acts  were  done  in  a  way 
[94] 


directly  contrary  to  his  instructions.  Phil- 
adeljjhia  and  Reading  Railroad  v.  Derby, 
14  How.  S.,  C.  4G8  ;  Soutliwick  r.  Estes, 
7  Gush.  385.  —  But  in  cases  where  the 
master  is  held  liable  on  the  ground  of  an 
implied  authority  to  the  servant  to  do  the 
particular  act  for  him,  if  the  tort  is  a  tres- 
pass on  the  part  of  the  servant,  the  mas- 
ter must  not  be  sued  in  trespass,  but  case. 
Gordon  v.  Rolt,  4  Exch.  365  ;  Shan-od 
V.  London  &  N.  Western  Railway  Co.  20 
Law  J.  Rep.  (N.  S.)  Exch.  185,  4  E.  L. 
&  E.  401,  where  a  railway  train,  driven 
at  tlie  rate  of  forty  miles  an  hour,  accord- 
ing to  tlfb  general  directions  of  the  com- 
pany to  the  driver,  ran  over  and  killed 
some  sheep  which  had  strayed  upon  the 
line  in  consequence  of  the  defective  fences 
of  tlie  company.  It  apjieared  tbat  if  the 
driver  (running  the  engine  at  the  speed 
directed)  had  seen  the  sheep,  he  could  not 
have  stopped  the  train  in  time  to  prevent 
the  collision.  Held,  that  the  company 
were  not  liable  in  trespass  for  the  injury; 
but  that  the  action  should  have  been  case, 
either  for  permitting  the  fences  to  be  out 
of  repair,  or  for  directing  tlie  servant  to 
drive  at  sucli  a  rate  as  to  interfere  with 
the  right  of  the  sheep  to  boon  the  railway. 
It  was  observed  in  tlie  Judgment,  that, 
notwithstanding  thfc  order  to  the  driver  to 
proceed  at  a  great  speed,  it  did  not  follow 
as  a  necessary  consequence  tliat  the  engine 
would  infringe  on  the  plaintiff's  cattle ; 
and  tlie  case  was  distinguished  from 
Gregory  v.  Piper,  9  B.  &  C.  591,  on  this 
ground. 


en.  v.]  SERVANTS.  *89-*90 

who  is  a  servant  only  by  construction,  excepting  so  far  as  this 
essential  element  of  control  and  direction  exists  between  thenn. 
We  should  therefore  *say  that,  in  the  instances  we  have  before 
supposed,  the  owner  of  the  land  or  the  house  was  not  responsi- 
ble for  the  tort  of  the  servant  of  the  subcontractor,  nor  would  he 
have  been  for  the  tort  of  the  subcontractor  or  of  the  first  con- 
tractor. They  were  not  his  sergants  in  any  sense  whatever ; 
they  were  to  do  a  job,  and  when  this  was  done  he  was  to  pay 
the  party  whom  he  had  promised  to  pay  ;  and  this  was  all.  In 
accordance  with  this  rule  it  is  settled  that  where  the  negligent 
party  exercises  a  distinct  and  independent  calling,  his  employer 
is  not  liable,  (b)  and  if  the  negligence  be  committed  in  the  per- 
formance of  a  piece  of  work  undertaken  in  consequence  of  a 
special  contract,  in  such  case  the  contractor  is  solely  responsi- 
ble, (bb)  Nor  does  it  make  any  difference  if  the  contractor  be, 
in  matters  beside  the  contract,  the  servant  of  the  other  con- 
tracting party,  {be)  And  the  party  with  whom  the  contractor 
engages  is  not  liable,  although  acts  are  done  by  the  contractor 
or  his  servants  amounting  to  a  public  nuisance,  so  long  as  the  act 
contracted  for  is  not  in  itself  a  nuisance,  (bd)  Yet  if  the  act 
to  be  done  be  itself  an  unlawful  one,  or  necessarily  involves  in 
its  performance  the  commission  of  a  public  nuisance,  the  em- 
ployer is  not  dischargf^d  from  liability  on  tlie  ground  that  the 
party  emjjloyed  was  a  contractor,  because  in  such  case  he  has 
complete  control,  alid  expressly  commands  the  act  to  be 
done,  [be)     But  if  the  contracting  party  employs  'persons  to  do 

{b)  Millijran  v.  Wedge,  12  Ad.  &  El.  power  of  removal,  provided  this  authority 

737  ;  INIartin  v.  Temjierlev,  4  Q.  B.  298  ;  is  not  .«o  extensive  a.s  in  effect  to  render 

DeForrest  c.  Wri;:]it,  2  MiiJi.  3tJS.  the  servant  no  longer  the  contractor's  ser- 

(IJi)  Alien  V.  llaywanl,  7  Q.  15.  'JGO.  vant.     Where  a  company,  empowered  hy 

(In')   Knight  V.  Fox,  5  Kxch.  72,  1    E.  act  ot"  I'arliament  to  constnict  a  railway, 

L.  &  E.  477.  contracted  with  certain  |)ersoiis  to  make 

(/x/)    Overton    v.    Freeman,  .3  Carr.  &  a  ])oition  of  the  line,  and  hy  the  contract 

Kir.  49,  S.  C.  8  E.  L.  &  E.  479.  reserved  to  themselves  the  power  of  dis- 

(/«)  IVachey  v.  Rowland,  16  E.  L.    &  missing  any  of  the  contractor's  workmen 

E.  442  ;  Ellis  v.  ShelHeld  Gas  Consnmei-s  for  incompetence  ;  and   the  workmen,  in 

Co.  22  E.  L.  &  E.  198.  —  It  is  a  conse-  constructing  a  hridge  over  a  pul)lic  liigh- 

quence  from   the  princi]>les  stated  in  the  way,  negligently   caused  the   death   of  a 

'text,  that  if  a  contractor  himstlf  employ  pei-son   passing  hencatli  the  hitxhway,  !)v 

a  servant,  he,   and   not    the  original  em-  allowing  a  stone  to  fall  upon  him  : — J/rlii, 

ployer   is  liahle  for   the   conduct  of  that  in  an  action   against  the  company,  upon 

servant.     And  the  general  employer  docs  stnt.  9  &  10  Vict.  c.  93,  hy  the  adminis- 

not  hecome  liahle  even  if  he  have  a  de-  tratrix  of  the  deccitsed,  that  they  weiv  not 

gree  of  control  over  the  servant,  and  the  liable  ;  and  that  the  terms  of  the  contract 

['Jo] 


*91-*92 


THE   LAW   OF   CONTRACTS. 


[book  I. 


the  work,  not  on  a  contract,  but  on  days'  wages,  he  would  still 
retain  the  power  of  directing  them  *from  day  to  day  in  their 
work ;  and  this  would  render  him  liable.  But  we  should  still 
hold,  that  if  the  work  done  at  day  wages  were  such  as  to  carry 
with  it  no  implication  or  probability  of  actual  supervision  or 
control,  and  none  such  were  proved  in  fact,  the  employer  would 
not  be  liable.  For  the  sam*  reason  we  should  say  that  the 
owner  and  letter  of  a  coach,  horses,  and  coachman,  was  or  was 
not  responsible  to  one  injured  by  *the  negligence  of  the  coach- 
man, as  the  terms  of  the  hiring  and  the  circumstances  of  the 
case  led  to  the  conclusion  that  the  coachman  was  or  not  at  the 
time  of  the  negligence  the  servant  of  the  owner  or  of  the  hirer 
of  the  coach,  {bf)     The  owner  might  doubtless  be  held  respon- 


in  question  did  not  make  any  diflfei-ence. 
Keedie  v.  London  &  North  Western  Rail- 
way Co.  4  Exch.  244. 

Yet  a  man  is  none  the  less  liable  for  the 
negligence  of  his  own  servants  because 
they  were  not  directly  employed  by  him, 
but  mediately,  through  the  intervention  of 
another,  whom  he  has  authorized  to  ap- 
point servants  for  hira.  iVnd  Littlc-flale, 
J.,  in  the  able  opinion  so  much  cited, 
instances  several  cases  where  the  liability 
exists,  although  the  master  has  neither  the 
direct  appointment  nor  the  superintend- 
ence of  the  servants  ;  as  the  liability  of  a 
ship-owner  for  the  crew  selected  and  gov- 
erned by  the  master ;  of  the  owner  of  a 
farm,  who  conducts  its  operations  through 
a  bailifl',  for  the  inferior  working  men 
hired  by  the  bailiff;  and  of  the  owner  of 
a  mine  for  the  workmen  employed  by  his 
steward,  and  paid  by  him  on  behalf  of  the 
master.  To  which  may  be  added  the  lia- 
bility of  the  owner  of  a  chartered  ship  for 
the  negligence  of  the  crew  while  under  the 
immediate  direction  of  the  charterer.  See 
Fenton  v.  Dublin  Steam  Packet  Co.  8  A. 
&  El.  835.  Tlie  following  convenient 
tests  for  ascertaining  in  a  particular  case 
whether  a  certain  person  was  the  master 
of  the  servants  in  question,  are  suggested 
by  Coleridge,  J.,  7  Jnr.  152:  Had  he  the 
power  of  selecting  them  1  —  was  he  the 
party  to  pay  tliem  1  —  were  they  doing  his 
woi'k  ?  —  were  tliey  doing  that  work  under 
his  control  in  the  ordinary  way  '?  —  Where 
the  other  elements  of  liability  exist,  it  is 
no  defence  that  the  master,  voluntarily 
performing  part  of  his  work  by  means  of 
servants,  was  obliged  by  law  to  take  those 
[96] 


servants  from  a  prescribed  class.  Whether 
he  would  be  liable  whei'e  the  law  al)so- 
lutcly  forbade  him  to  do  that  part  of  his 
business  himself,  and  still  allowed  him  to 
select  out  of  a  class  more  or  less  numer- 
ous, is  perhaps  unsettled,  Init  the  probabil- 
ity is  he  would  still  be  held.  Where 
tliere  is  tliis  personal  prohibition,  and 
also  an  obligation  by  law  to  take  a  partic- 
ular individual,  and  thus  no  liberty  of  choice 
whatever  is  permitted,  it  seems  the  mas- 
ter's liability  ceases.  See  Martin  r.  Tem- 
perley,  7  Jur.  150,  4  Q.  B.  298;  The 
Agricola,»2  Wm.  Rob.  10  ;  The  Maria,  1 
VVm.  Rob.  95  ;  Lucy  v.  Ingram,  6  M.  & 
W.  302;  Yates  v.  JBrown,  8  Pick.  23; 
Stone  V.  Cadman,  15  Pick.  297  ;  Lowell 
V.  Boston  &  Lowell  Railroad,  23  Pick. 
24;  Sproul  v.  Hemingway,  14  Pick.  1  ; 
Ruffin,  C.  J.,  in  Wiswall  'v.  Brinson,  10 
Ire.  L.  563 ;  Blake  r.  Ferris,  1  Selden 
48 ;  Stevens  i\  Armstrong,  2  id.  435,  1 
Jur.  N.  S.  Pt.  2,  425 ;  Kelly  r.  The 
Mayor,  &c.,of  New  York,  1  Kcrnan,  432. 
(1>f)  A  party  who  is  not  the  general 
master  of  a  servant  may  make  him  his 
servant  in  a  particular  transaction,  by 
spcciallj'  directing  hira  thereto,  or  by  a 
subsequent  adojition  of  what  ho  has  done  ; 
and  in  this  way  a  special  liability  may  be 
incurred.  And  in  Quarman  v.  Burnett,  6 
M.  &  W.  508,  the  owners  of  the  carriage 
having  provided  the  driver  with  a  livery 
which  he  left  at  their  house  at  tlie  end  of 
each  drive,  and  the  injury  in  question  be- 
ing occasioned  by  his  leaving  the  horses 
while  so  depositing  the  livery  in  tlieir 
house,  the  court  acknowledged  that  if  it 
had   appeai-ed  that   the   coachman  went 


CH.    v.] 


SERVANTS. 


-92 


sible  to  the  hirer,  if  the  injured  party  compelled  him  to  make 
compensation,  and  it  could  be  shown  that  the  owner  had 
knowingly  employed  an  insufficient  and  dangerous  servant, 
for  this  would  be  only  to  hold  him  responsible  for  his  own 
negligence.  The  rule  we  have  given  would  not  require  the 
tort  to  be  committed  in  the  master's  presence  in  order  to  hold 
him  responsible.  It  is  enough  if  when  the  tort  was  committed 
the  wrongdoer  was  in  the  service  of  the  master,  and  was  then 
acting  as  his  servant.  And  this  question  has  been  held  to  be 
a  question  of  fact  for  the  jury,  (c) 

There  seems  to  be  some  extension  of  the  responsibility  of  the 
master,  when  the  work,  in  the  doing  of  which  tjie  injurious 


into  the  house  to  leave  his  livery  on  that 
occasion  uiuler  a  special  order  of  the  own- 
ers, or  under  a  general  order  to  do  so  at 
all  times,  without  leavinjj;  any  one  at  the 
horses'  lieads,  a  liability  would  have  been 
incurred.  In  the  course  of  the  judgment, 
Baron  Purlce  observed :  "  It  is  undoubt- 
edly true  that  there  may  be  special  circum- 
stances which  may  render  the  hirer  of  job- 
horses  and  servants  responsible  for  the  neg- 
lect of  a  servant,  though  not  liable  by 
virtue  of  the  general  relation  of  master  and 
servant.  He  may  become  so  by  his  own 
conduct,  as  by  taking  the  actual  manage- 
ment of  tlie  horses,  or  ordering  the  ser- 
vant to  drive  in  a  particular  manner, 
wliich  occasions  the  damage  complained 
of,  or  to  absent  himself  at  one  particular 
moment,  and  the  like."  See  also  Bur- 
gess V.  Gray,  1  C.  B.  578.  —  AVhere  ques- 
tion is  not  made  of  the  fact  of  service,  but 
simply  whether  it  is  a  service  of  tluit  party 
whom  it  is  attempted  to  ciiarge  —  there 
can  be  no  doubt  that  the  servant  cannot 
have,  with  respect  to  the  same  act  of  ser- 
vice, two  unconnected  mastei-s.  Two 
persons  may  be  joint  masters,  and  thereby 
8ubj(!ct  to  a  joint  liability  ;  and  such  joint 
liability  may  be  converted  into  a  several 
one  l)y  the  election  of  the  ])laintitl"  to  sue 
one  separately  —  which  the  law  allows  to 
be  done  in  actions  of  tort ;  but  "  two  per- 
sons cannot  be  made  sejiarately  liable  at 
the  election  of  the  party  suing,  unlrss  in 
cases  where  tlicy  would  be  jointly  liable." 
Littlnlnic,  .T.,  Laugher  v.  Pointer,  5  B.  & 
C.  559.  This  princi])le  serves  as  a  test 
in  that  ditlicult  class  of  cases  where  the 
negligent  servant  seems  to  be  in  some 
respects  in  the  emiiloyment  of  one  party, 
and  in  some  respects  iu  tha>  of  another. 

VOL.   I.  9 


In  such  a  case,  as  soon  as  it  is  ascertained 
that,  as  to  the  transaction  in  question,  he 
is  the  servant  of  either  one,  it  follows  im- 
mediately that  he  cannot  be  regarded  as 
the  servant  of  the  other,  who  therefore  is 
not  liable  for  his  negligence.  Hence  in 
the  great  case  of  Laualicr  v.  Pointer,  5  B. 
&  C.  547,  it  was  held  l)y  Ahlmtt,  C.  J., 
and  Littledale,  J.,  (whose  ojnnion  has  since 
been  authoritatively  a])proved,)  in  opposi- 
tion to  the  view  of  Bayley  and  Holroyd, 
JJ.,  that  where  the  owner  of  a  carriage 
hired  of  a  stable-keeper  a  pair  of  horses  to 
draw  it  for  a  day,  and  the  owner  of  the 
horses  provided  a  driver,  through  whose 
negligent  driving  an  injury  was  done  to 
a  horse  belonging  to  a  third  person,  the 
owner  of  the  carnage  was  not  liable  to 
be  sued  for  such  injury.  And  the  case  is 
not  aftected  though  the  owners  of  the  car- 
riage asked  for  that  particular  servant 
among  many.  "  If  tlie  driver  be  the  servant 
of  the  job-master,  we  do  not  think  he  ceases 
to  be  so  by  reason  of  tlie  owner  of  the  car- 
riage j)referring  to  be  driven  l)y  that  par- 
ticular servant,  where  there  is  a  choice 
amongst  more,  any  more  than  a  hack  post- 
boy ceases  to  be  the  servant  of  an  inn- 
keeper, where  a  traveller  has  a  particular 
preference  of  one  over  the  rest,  on  account 
of  bis  sobriety  and  carcfiiliu'ss.  If,  in- 
deed, the  defendants  had  insisted  upon 
the  horses  being  driven,  not  by  one  of  the 
regular  servants,  but  by  a  stranger  to  the 
job-master,  ap|u>inted  'l)y  themselves,  it 
would  have  made  all  the  ditt'crence."  Sec 
also  Quannan  v.  Burnett,  6  M.  &  W.  508  ; 
Steve^p  V.  Armstrong,  2  Selden,  435. 

(r.)    Per    Lord    Al/im/ir,    at    nisi  pritis, 
Brady  v.  Giles,  1  M.  &  Bob.  494. 

[97] 


92 


THE   LAW   OF   CONTRACTS. 


[book  I. 


negligence  occurred,  related  to  real  estate ;  on  the  ground  that 
the  owner  of  such  property  is  bound  to  be  careful  how  his  use 
of  it  or  acts  in  relation  to  it  affect  third  parties  or  the  public ; 
but  the  limits  of  this  extension  are  not  well  settled.  If  it  have 
any  foundation  whatever,  it  must  rest  upon  the  maxim  sic  utere 
tuo  ut  alienum  non  Icedas,  which,  while  it  imposes  a  certain  re- 
striction upon  the  use  of  all  property,  may  be  held  perhaps  to 
apply  more  especially  to  lands  ;  and  whoever  permits  any  thing 
to  be  done  upon  his  ground,  to  the  positive  damage  of  another, 
may  be  responsible  for  the  nuisance.  This  duty,  however,  can- 
not extend  so  far  as  to  oblige  the  owner  of  land  to  see  to  it  in 
all  cases  that  a  nuisance  is  not  erected  thereon.  The  measure 
of  his  responsibility  must  be  his  reasonable  power  of  control; 
and  therefore  it  should  be  sufficient  for  his  exculpation,  that  he 
never,  either  expressly  or  impliedly  sanctioned  the  nuisance.  But 
if  he  let  his  land  with  a  nuisance  upon  it,  he  would,  on  the  same 
principle,  be  liable^  for  its  continuance,  as  well  as  for  its  erection, 
although  he  had  reserved  to  himself  no  right  to  enter  upon  the 
land  and  abate  the  nuisance.  And  so  if  he  let  land  for  a  par- 
ticular use  which  must  result  in  a  nuisance,  he  should  perhaps 
be  liable  therefor,  {d) 


(d)  See  Rich  v.  Ba.sterfield,  4  C.  B. 
783 ;  The  Kino:  v.  Pcdley,  1  A.  &  E. 
822,  3  N.  &  M.  627  ;  Fish  v.  Dodge,  4 
Denio,  311  ;  Carle  v.  Hull,  2  Mete.  353. 
And  possibly  this  doctrine  may  enter  into 
the  decision  in  Burgess  v.  Gray,  above  re- 
ferred to.  —  It  was  once  believed  that  the 
owner  of  tixed  property,  as  distinguished 
from  the  owner  of  a  personal  chattel,  was 
liable  in  a  peculiar  manner  (in  addition  to 
the  liability  noticed  in  the  text)  for  inju- 
ries resulting  from  the  negligent  manage- 
ment, by  any  one  soever  of  sucli  property. 
Litthdale,  J.,  Laugher  v.  Pointer,  5  B.  & 
C.  560  ;  Judgment,  Quarman  v.  IJurnett, 
6  M.  &  W.  510.  But  the  supposed  dis- 
tinction was  quite  disregarded  in  Allen  v. 
Hayward,  7  Q.  B.  960  ;  and  in  Reedie  v. 
London  and  North- Western  Railway  Co., 
4  Exch.  244,  it  was  expressly  overruled. 
There  IMfe,  B.,  giving  the  judgment, 
said :  "  On  full  consideration,  we  have 
come  to  the  conclusion  that  ther^is  no 
such  distinction,  unless  perhaps  the  act 
complained  of  is  such  as  to  amount  to  a 
nuisance It  is  not  necessary 

[98] 


to  decide  whether  in  any  case  the  owner 
of  real  property,  such  as  land  or  houses, 
may  be  responsible  for  nuisances  occa- 
sioned by  the  mode  in  which  his  property 
is  used  by  others  not  standing  in  the  rela- 
tion of  servants  to  him,  or  part  of  his 
family.  It  may  be  that  in  some  cases  he 
is  so  responsible.  But  then,  his  liability 
must  be  founded  on  the  principle  that  he 
has  not  taken  due  care  to  j)revcnt  the 
doing  of  acts  which  it  was  his  duty  to  pre- 
vent, whether  done  by  his  servants  or 
others.  If,  for  instance,  a  person  occupy- 
ing a  house  or  a  field  should  permit  an- 
other to  carry  on  there  a  noxious  trade, 
so  as  to  be  a  nuisance  to  his  neighbors,  it 
may  be  that  he  would  be  responsible, 
though  the  acts  complained  of  were  neither 
his  acts  nor  the  acts  of  his  servants.  He 
would  have  violated  the  rule  of  law,  '  Sic 
utere  tuo  ut  aJifimm  non  hedas.'  "  Bush  v. 
Steinman,  1  B.  &  Pul.  404 ;  Randleson  v. 
Murray,  8  A.  &  El.  109,  and  other  cases 
of  that  class,  must  be  regarded  as  substan- 
tially overruled ;  and  such  American  de- 
cisions as  were  made  before  the  recent 


CII.  v.]  SERVANTS.  93 

Of  the  general  principles  of  the  law  of  contracts  applicable 
to  the  contract  of  service,  we  have  already  considered  some 
under  the  head  of  Agency ;  and  we  shall  defer  the  considera- 
tion of  others,  and  of  the  questions  which  they  present,  to  the 
third  Book  of  this  Part,  which  relates  to  the  subject-matter  of 
contracts,  and  to  the  chapter  upon  the  topic  of  the  Hiring  of 
Personal  Service. 

investigations,  in  deference  to  those  cases,  it  seems  difficult  to  reconcile  with  the  cur- 
will  not,  it  is  presumed,  he  adhered  to.  rent  of  recent  English  decisions.  See  also, 
Do  FoiTCst  V.  Wright,  2  Mich.  368.  Sec,  Lowell  v.  Boston  and  Lowell  It.  1{.  Co. 
however,  tlie  Mavor,  &c.,  of  New  York  v.  2.3  Tick.  24;  Gardner  v.  Heartt,  2  Barh. 
teailey,  2  Denio,  433  ;  and  City  of  Buffalo  S.  C,  165;  Stone  v.  Codman,  15  Tick. 
V.  Holloway,  14  Barb.  101  ;  cases  which  297. 

[99] 


94 


THE   LAW   OF   CONTRACTS. 


BOOK   I. 


CHAPTER     VI. 


OF   ATTORNEYS. 


Attorneys  are  made  so  by  a  letter  or  power  of  attorney,  (e) 
or  they  are  Attorneys  of  Record.  ^^ 

It  is  a  general  rule,  that  one  acting  under  the  power  of  attor- 
ney, cannot  execute  for  his  principal  a  sealed  instrument,  unless 
the  power  of  attorney  be  sealed.  (/)     But  as  oral  or  written 


(c)  "  Few  persons  are  disabled  to  be 
private  attorneys  to  deliver  seizin  ;  for 
monks,  infants,  femes  covert,  persons  at- 
tainted, outlawed,  excommunicated,  vil- 
lains, aliens,  &c.,  may  be  attorneys.  A 
feme  may  be  an  attorney  to  deliver  seizin 
to  her  husband,  and  the  husband  to  the 
wife."  Co.  Litt.  52,  a. — An  infant  can- 
not execute  a  power  coupled  ivith  an  in- 
terest. Hearle  v.  Greenbank,  3  Atk.  695, 
714. 

( f)  IlaiTison  v.  Jackson,  7  T.  R.  209  ; 
Elliot  V.  Davis,  2  B.  &  P.  338 ;  Berkeley 
V.  Hardy,  5  B.  &  C.  355  ;  Stetson  v. 
Patten,  2  Greenl.  R.  358. — If  a  partner 
seal  for  himself  and  copartner,  in  the  pres- 
ence of  the  copartner,  it  is  sufficient, 
though  his  authority  be  only  by  parol. 
Ball  r.  Dunstcrville,  4  T.  R.  313.— In 
Brutton  v.  Burton,  1  Chitty,  R.  707,  it 
was  held  that  a  warrant  of  attorney  under 
seal,  executed  by  one  person  for  himself 
and  partner  in  the  absence  of  the  latter, 
but  witli  his  consent,  was  a  sufficient  au- 
thority for  signing  judgment  against  both; 
on  the  ground  that  a  warrant  of  attorney 
to  confess  judgment  need  not  be  under 
seal.  —  And  Hunter  v.  Parker,  7  M.  & 
W.  322,  contains  another  application  of 
the  same  equitable  and  reasonable  prin- 
ciple. Compare  Banorgee  v.  Hovey,  5 
Mass.  R.  11,  24.  —  An  instrument  to 
which  the  agent  of  a  corporation  has 
affixed  his  seal,  may  be  evidence  of  the 
contract  in  an  action  of  assumpsit  against 
tjie  corporation  ;  for  the  seal  of  the  agent 
of  a  corporation,  unlike  that  of  the  agent 
of  a  natural  ])crson,  never  can  be  the  seal 

[100] 


of  his  principal.  Randall  v.  Van  Vech- 
ten,  19  Johns.  60  ;  Damon  v.  Inhabitants 
of  Granby,  2  Pick.  345  ;  Bank  of  Colum- 
bia V.  Patterson's  Admr.,  7  Cranch,  299. 
—  There  is  a  class  of  Partnershij)  cases, 
in  which  it  has  been  held  that  any  express 
ratification,  though  parol,  by  a  partner  of 
a  contract  under  seal  entered  into  for  the 
firm  by  Iiis  copartner,  makes  tlie  instru- 
ment the  deed  of  the  firm.  Darst  v.  Roth, 
4  Wash.  C.  C.  R.471  ;  Mackay  v.  Blood- 
good,  9  Johns.  285 ;  Drumright  v.  Phil- 
pot,  16  Geo.  424.  — The  dicta  of  several 
judges  have  extended  this  exception  to 
include  an  oriyinal  parol  authority.  See 
Skinner  v.  Dayton,  19  Johns.  513,  where 
the  decision  seems  to  be  too  broadly  stated 
in  the  reporter's  note.  Some  decisions 
also  go  to  this  extent,  as  Gram  v.  Seton, 
1  Hall,  (N.  Y.)  262. —In  Cady  v.  Shep- 
herd, 1 1  Pick.  400,  the  cases  are  reviewed, 
and  among  others  Bnitton  v.  Burton,  1 
Chitty,  R.  707,  (see  supra,)  the  decision 
in  which  is  stated  nakedly,  without  the 
addition  of  the  reason  by  which  the  Court 
of  Queen's  Bench  appear  to  have  been 
governed,  and  which  goes  to  reconcile  it 
with  the  authorities.  McDonald  &  Mills 
V.  Eggleston,  Barker  &  Co.,  26  Vt.  156, 
is  also  to  the  same  effect.  And  see 
Hunter  v.  Parker,  7  M.  &  W.  331,  332, 
344 ;  Price  v.  Alexander,  2  Greene, 
(Iowa,)  427.  Cady  v.  Shepherd,  and 
McDonald  &  Mills  v.  Eggleston,  Barker 
&  Co.,  however,  must  be  taken  to  decide 
the  law  for  Massachusetts  and  Vermont, 
■  to  be,  that  a  partner  may  bind  his  copart- 
ner by  a  contract  under  seal,  made  in  the 


en.   VI.]  OF   ATTORNEYS.  *95 

powers  are  equally  parol,  one  by  oral  authority  may  sign  the 
name  of  his  principal  without  a  seal  thereto ;  and  so  he  maybe 
*authorized  orally  to  bind  his  principal  by  written  contracts, 
where  the  statute  of  frauds  requires  a  writing  signed  by  the 
parties  sought  to  be  charged,  as  the  foundation  of  an 
action,  (g-) 

The  effect  of  a  written  authority  in  limiting  the  power  of  an 
attorney  precisely  within  what  is  written,  may  be  illustrated  by 
the  execution  of  a  deed  by  one  person  for  another.  If  a  grantor 
requests  a  person  in  his  presence  to  sign  for  him  his  (the 
grantor's)  name  to  a  deed,  and  the  person  thus  requested  writes 
the  name  of  the  grantor  without  writing  his  own,  or  adding  any 
words  to  indicate  that  the  grantor  acted  by  attorney,  this  would 
seem  to  be  nevertheless  the  signature  of  the  grantor,  and  the 
deed  woujd  be  valid.  But  if  the  grantor  has  given  to  A  B  a 
power  of  attorney  in  the  ordinary  form,  authori:zing  him  to  ex- 
ecute a  deed  for  him  as  his  attorney,  and  this  person  WTites  the 
name  of  the  grantor  in  his  absence,  without  saying  ''  by  A  B, 
his  attorney,"  or  writing  his  own  name ;  this  would  seem  to  be 
not  a  sufficient  execution  of  the  deed.  Because  A  B  had  no 
other  power  to  act  for  the  grantor  than  that  which  the  letter  of 

name  and  for  tlic  osc  of  the  firm,  in  the  v.hito  t-.  Mcilorine, 6  M.  (SbW.  215,  citing 

course  of  the   jiartncrsliip  liusincss,   pro-  Htidson  ?•.  Kevett,  5  Binp:.  368  ;  Bloo<l  v. 

vidcd  the  copartner  assents  to  the  contract  Goodridi,  12  Wend.   525,  9   Wend.  68; 

previously  to  its  execution,  or  attenvards  Urapg  v.   Fesscnden,    11   IlL  544.     And 

ratifies  and  adopts  it ;  and  tlii'^  assent  or  l>eside,s,  on  the  <kjctrinc  of  eslojipel,  a  prin- 

rtdoption  may  he  by  parx)l.     Whetlicr  the  cipal,  hy  admittin<j  that  to  he  his   deed 

Ooctrinc  of  these  cases  is  to  he  extended  which  was  executed  l>y  liis  agent,  might 

to  other  tlian  partnership  cases,  is  open  to  l>c  heW  to  have  disabled  himself  to  say 

douht;  the  probability  is  that  it  will  not.  that  the  agent  was  not  duly  autlwrized. 

It  is  worthy  of  notice,  in  the  alisence  of  As  yet,  however,  the  law  must  certainly 

clear    and    consistent   adjudication,    that  he  taken  to  Ix',  that  even  a  parol  iat(fica- 

fi'irol  mtifirathii,  though  frequently  con-  tion   docs  not  make  an  instrument  under 

founded  in  the  cases  with  an  orii/iiKil jxirol  seal,  execjjtcd  i)y  an  agent  who  had  not 

«H//(0(//y,  standson  quite  a  different  footing  an  authority  under  seal,  the  deed  of  the 

and  may  he  defended  by  rea.«ons  which  principal.      Where,  however,    a    partner 

do  not  apply  to  the  other.     It  is  delivery  nuikes  a   mortgage  o£  personal  ])ro]>erty 

that  completes    the  deed,   and  a  subse-  in  the  name  of  the  firm  ami  seals  it,  the 

(pient  parol   a.^wnt,  or   contem|>ornneoHS  seal    being    unnecessary,   the     mortgage 

parol    assent,    may    amount    to   delivery,  hintls  the  firm.    Milton  r.  Mosher,  7  Mete, 

though  a.  prfvtnits  assent,  by  the  nature  of  244  ;  see  also,  (nilr,  jtage  47,  note  (</•»•). 
things,  as  well  as  by  common  law,  never         (</)  Shaw  v.  Nudd,  8  I'ick.  0;  Coles  r. 

can.     The  deed  must  exist  before  it  can  Trecothick,  9  Ves.  2.34  ;  Clinan  v.  Cooke, 

be  delivered  ;  and  it  may  be  deliveix-d  at  1  Sch.  &  Lef.  22  ;  McComb  r.  Wright,  4 

any  time  fl/?(r  it  once  does  exist  in  a  com-  Johns.   Ch.   CiO  ;  Graluim  v.   Musson,   5 

pleted  form.     Sec  Bvers  r.  McClanaban,  Biiig.  N.  C.  607. 
6  G.  &  Jolins.  250 ;' ParJce,  B.,  Ilibblc- 

3*  [  101  ] 


96* 


THE   LAW   OF   CONTKACTS. 


[b'ook  I. 


attorney  gave  him;  and  that  did  not  give  him  any  other  power 
than  to  act  as  the  grantor's  attorney ;  that  is,  to  sign  the  deed 
himself,  declaring  that  the  grantor  signed  it  by  him.  In  the 
first  case,  evidence  is  admissible  to  show  the  authority  under 
which  the  signature  was  made  ;  and  when  this  exhibits  the 
grantor  as  present,  and  as  authorizing  the  signature  made  in 
that  way,  then  *it  becomes  tlie  signature  of  the  grantor  made 
by  another  hand  than  his  own.  But  in  executing  a  deed  by 
attorney,  the  power  being  delegated  to  the  attorney  is  with  him, 
a«d  the  deed  takes  effect  from  his  act;  and  therefore  the  instru- 
ment which  gives  the  power  is  to  be  strictly  examined  and 
construed,  (gg-) 


{(/(/)'%  This  point,  upon  which  there 
seems  to  be  no  express  decision,  arose  in 
the  recent  case  of  Wood  v.  Goodridgc,  6 
'Cashing,  117.  This  was  the  case  of  a 
3nortgage  deed  and  note  made  under  a 
■power  of  attorney  under  seal,  by  simply 
signing  the  name  of  the  principal  opposite 
■to  a  seal,  in  the  case  of  the  deed,  and  in 
.the  case  of  the  note,  by  simply  writing  the 
principal's  name  at  the  foot.  It  was  not 
necessary  to  decide  tlic  point,  the  court 
being  of  opinion  that  the  power,  though 
Tery  genci-al  in  its  terms,  did  not  confer 
autiiority  to  mortgage,  nor  to  borrow 
money  and  bind  the  principal  by  a  prom- 
issory note.  But  the  question  of  the 
manner  of  execution  was  much  considered, 
and  tlie  court,  per  Fletcher,  J.,  signified 
an  inclination  to  hold,  that  where  an 
attorney  signs  tlic  name  of  his  principal 
to  an  instrument  which  contains  nothing 
to  indicate  that  it  is  executed  by  attorney, 
and  without  adding  Jiis  own  signature  as 
such,  it  is  not  a  valid  execution.  —  A 
•deed  was  signed  in  the  presence  and  by 
the  direction  of  P.  G.,  (and  in  the  presence 
of  an  attesting  witness,)  thus  :  "  P.  G.  by 
M.  G.  G."  It  was  objected  that  M.  G. 
G.,  signing  in  that  manner  for  the  prin- 
cipal, should  have  had  a  power  under 
seal ;  but  the  deed  was  held  valid.  Gard- 
ner r.  Gardner,  5  Gush.  483.  In  deliver- 
ing the  judgment  in  this  case,  Shaw,  C. 
J.,  said  :  "  Tiic  name  being  written  by 
another  hand,  in  the  presence  of  the 
grantor,  and  at  her  request,  is  her  act. 
The  disposing  capacity,  the  act  of  mind, 
which  arc  tlie  essential  and  efScient  in- 
gredients of  the  deed,  are  liers ;  and  she 
merely  uses  the  hand  of  another,  through 
•iucapacity  or  weakness,   instead  of  her 

[102] 


OTvn,  to  do  the  physical  act  of  making  a 
written  sign.  Whereas,  in  executing  a 
deed  by  attorney,  the  disposing  power, 
though  delegated,  is  with  the  attorney, 
and  the  deed  takes  effect  from  his  act ; 
and  therefore  the  power  is  to  be  strictly 
examined  and  construed." — Perliaps  it 
will  still  be  regarded  as  an  open  (juestion 
whether  the  simple  signing  of  tlie  prin- 
cipal's name,  without  evidence  on  the 
face  of  the  instrument  that  the  execution 
is  by  an  agent,  may  not  be  sufficient. 
Prom  a  passage  in  Dixon  on  Title  Deeds, 
vol.  ii.  p.  533,  it  may  be  infeiTcd  that  the 
autlior's  view  is  similar  to  that  now  taken 
by  the  Supreme  Court  of  Massachusetts. 
On  the  other  hand  the  books  contain 
numerous  intimations  that  it  has  not  gen- 
erally been  supposed,  heretofoi'c,  that  any 
other  form  is  necessary  to  the  valid  execu- 
tion of  a  deed  by  attorney  than  is  requisite 
when  the  principal  makes  a  deed  in  his 
proper  person.  See  1  Prest.  Abstr.  2d 
ed.  293,  294 ;  Smith,  Mer.  Law,  B.  I.  ch. 
5,  §  4  ;  Wilks  v.  Back,  2  East,  142,  145 ; 
Elliot  V.  Davis,  2  B.  &  P.  338 ;  Bac.  Abr. 
Leases,  J.  §  10  ;  also,  Hanson  v.  Kowe,  6 
Post.  327.  It  seems  the  better  opinion 
that,  even  since  the  Statute  of  Frauds,  a 
signing  is  not  essential  to  a  deed.  Avclinc 
V.  Whisson,  4  M.  &  Gr.  801  ;  Clierry  v. 
Ileming,  4  Exch.  631  ;  Shepp.  Touch, 
by  Preston,  56,  note.  If  tliis  be  so,  it 
may  be  considered  going  very  far  to  hold 
that  the  addition  of  the  name  of  the  prin- 
cipal, by  the  hand  of  an  authorized  attor- 
ney, invalidates  an  instrument  which 
would  have  been  perfectly  good  without 
any  signature  at  all.  In  some  States,  in- 
deed, the  Statutes  of  Conveyance  modify 
the  common  law  iu  tliis  particulai',  and 


CH.  VI.J 


OF  ATTORNEYS. 


*97 


An  attorney  of  record,  more  commonly  called  an  attorney  at 
law,  is  one  who  has  been  duly  admitted  by  competent  authority 
to  practise  in  the  courts.  Such  an  attorney  need  not  prove  his 
authority  to  appear  for  any  party  in  court,  and  act  for  him 
there,  unless  his  authority  be  denied,  and  some  evidence  be 
offered  tending  to  show  that  he  has  no  such  authority.  (A)  But 
a  person  wlio  is  not  an  attorney  at  law,  and  who  offers  to  ap- 
pear for  another  in  court,  by  special  authority,  must  prove  such 
authority  if  requested,  (i) 

An  attorney  who  places  his  client's  money  in  the  hands  of 
his  own  banker,  to  his  own  private  account,  though  he  does  this 
bond  fide,  and  has  money  of  his  own  in  the  hands  of  the  same 


require  sijrning,  as  well  as  the  affixing  of 
a  seal.  W^ith  respect  to  instruments  not 
under  seal,  the  opinion  seems  equally  to 
have  prevailed  that  an  authoritj'  to  sign 
for  a  principal  is  well  executed  by  the 
mere  suliscription  of  the  principal's  name. 
Chitty  on  IJills,  9th  ed.  33;  Byles  on 
Bills,  6th  ed.  26.  —  An  auctioneer  or  auc- 
tioneer's clerk  performs  his  implied  au- 
thority i)y  simply  wnting  the  purchaser's 
name  in  the  memorandum  of  sale.  Bird 
V.  Boulter,  4  B.  &  Ad.  443.  This  indeed 
is  of  no  great  weight  in  itself,  since  that 
case  might  be  viewed  as  falling  within  the 
class  expressly  distinguished  iiy  the  Su- 
preme Court  of  Massachusetts,  namely, 
where  the  signature  is  made  in  the  presence 
of  the  princij)al,  and  by  his  immediate 
direction  :  yet  there  is  a  case  of  White  v. 
Proctor,  4  Taunt.  209,  where  the  oiyection 
was  expressly  taken  that  the  mnne  of  the 
auctioneer  ought  to  appear  as  well  as  that 
of  the  ])urchaser.  Tiiere  Best,  Sergeant, 
referring  to  Emerson  v.  Ileclis,  2  Taunt. 
38,  said  that  in  that  case  the  auctioneer 
wrote  liis  own  name  in  the  heading  of  tiie 
paper,  and  that  tiie  decision  was  given  on 
that  ground.  But  Minisjiild,  C.  J., 're- 
plied :  "In  that  case  there  was  no  argu- 
ment upon  the  circumstance  that  the  auc- 
tioneer had  signed,  nor  was  the  case  at  all 
decided  upon  that  ground  ;  his  saying 
'sold  bji  John  Wriijlit,'  i\\(\  not  make  him 
agent  for  the  buyer;  the  only  question 
was,  whether  his  siifninff  the  purchaser's 
name  tcus  done  hij  him  as  a(jcnt  for  the  pur- 
chaser." The  power  of  one  jxtrtner  to  bind 
the  firm  by  a  note  or  l)ill  has  been  referred 
to  principles  of  agency ;  and  it  is  well 
established  that  the  signature  of  the  firm 


name  without  more  is  a  complete  execu- 
tion. See  Norton  v.  Sevmour,  3  C.  B. 
792  ;  Kirk  v.  Blurton,  9  Si.  &  W.  284.  — 
Watkins  v.  Vince,  2  Stark.  368,  though 
meagrely  reported,  seems  to  be  a  case 
where  Lord  Ellenborough  entertained  no 
doubt  that  tiie  signing  of  the  jirinciiial's 
name,  by  an  agent  having  authority  to 
contract  in  his  behalf,  was  a  sufficient  sig- 
nature. And  see  Helmsley  v.  Loader,  2 
Camp.  450,  which  is  somewhat  more 
explicit. 

(/()  Osborn  i'.  U.  S.  Bank,  9  Wheat. 
738,  830  ;  where  this  rule  of  evidence  was 
applied  in  the  ca.se  of  an  attorney  assum- 
ing to  act  in  behalf  of  a  corporation.  See 
also,  Jackson  v.  Stewart,  G  Johns.  34  ; 
Denton  v.  Noycs,  id.  296  ;  Hardin  v.  Ho- 
yo-po-nubby's  Lessee,  27  Miss.  567  ; 
llcnck  V.  Todhunter,  7  H.  &  Johns.  275  ; 
Huston,  J.,  Lynch  v.  Commonwealth,  16 
S.  &  K.  369;  Woodbury,  J.,  Eastman  v. 
Coos  Bank,  1  N.  H.  23 ;  ^Manchester 
Bank  v.  Fellows,  8  Fost.  302.  —  The 
authority  from  the  client  need  not  in  gen- 
eral be  in  writing  ;  yet  an  oral  authority 
to  ai)|)car  in  a  cause  is  not  sufficient  to 
enable  the  attorney  to  release  the  interest 
of  a  witness.  Murray  v.  House,  1 1  Johns. 
464.  As  to  the  evidence  recpiired  to  su])- 
port  a  claim  for  services  rendenMl  liy  anv 
attorney  to  his  client,  see  Burghart  v. 
(Jardner,  3  Barb.  Sup.  Ct.  64  ;  Wilson  v. 
Wilson,  1  J.  &  Walk.  457.  —  .SV/c/Voc  is 
the  legal  designation  of  one  who  lills  the 
place  in  a  court  of  e<piity  corres|)onding 
to  that  of  an  attorney  in  a  court  of  law. 
Maugham,  c.  1,  §  1. 

(i)  Marshall,  C.  J.,  Oslwni  v.  U.  S. 
Bank,  9  Wheat.  829. 

[103] 


98* 


THE   LAW   OF    CONTRACTS. 


[book  I. 


banker,  is  liable  for  the  loss  thereof  by  the  bankruptcy  of  the 
banker,  [j)  But  it  seems  that  he  is  not  liable  if  he  deposits  the 
money  as  the  property  of  the  owner,  and  opens  a  special  ac- 
count specifying  whose  it  is.  [k)  His  *implied  duty  to  use 
reasonable  skill,  care,  &c.,  is  the  same  as  that  of  other  persons 
to  whose  care  and  skill  any  thing  is  intrusted;  which  will  be 
spoken  of  hereafter.  (/)  He  is  not  responsible  for  mistake  in  a 
doubtful  point  of  law,  {m)  or  of  practice,  [n)  nor  for  the  fault  of 
counsel  retained  by  him.  (o)  He  is  liable  for  disclosing  privi- 
leged communications,  [p)  If  discharged  by  one  party,  he 
may  act  for  an  opposite  party,  provided  he  makes  no  improper 
use  of  knowledge  obtained  by  him.  [q)  But  it  seems  that  he 
may  not  act  for  an  opposite  party  if  discharged  by  his  first 
client  for  misconduct,  (r)  An  attorney  cannot  recover  his  bill 
against  his  client,  if  his  client  has  received  no  benefit  whatever 
from  his  services  by  reason  of  his  want  of  care  and   skill,  {s) 


(  /)  Robinson  v.  Ward,  R.  &  M.  274,  2 
C.  &  P.  59. 

(/.■)  Abbott,  C.  J.,  Eobinson  v.  Ward,  2 
C.  &  P.  60. 

(/)  Pitt  V.  Yalden,  4  Bun-.  2060 ;  Baikic 
V.  Cliandlcss,  3  Camp.  17,  19;  Shilcock 
V.  Passman,  7  C.  &  P.  289  ;  Godefroy  v. 
Dalton,  6  Bing.  460 ;  Meggs  v.  Binns,  2 
Bing.  N.  C.  625 ;  Lynch  v.  Common- 
wealtii,  16  S.  &  Rawle,  368;  Dearborn  v. 
Dearborn,  15  Mass.  316;  Varniim  v. 
Martin,  15  Pick.  440;  Wilson  v.  Coffin,  2 
Cush.  316;  Cooper  v.  Stevenson,  12  Eng. 
Law  &  Eq.  403 ;  Parker  v.  Rolls,  28  id. 
424.     And  see  ante,  p.  *73,  note. 

[m)  Kemp  v.  Burt,  4  B.  &  Ad.  424,  S. 
C.  1  N.  &  Man.  262;  Elkington  v.  Hol- 
land, 9  M.  &  W.  659  ;  Pitt  v.  Yalden,  4 
Burr.  2060. 

(n)  Laidlcr  v.  Elliott,  3  B.  &  C.  738. 

(o)  Lowry  v.  Guilford,  5  C.  &  P.  234. 
—  Yet  an  attomcy  cannot,  by  consulting 
his  counsel,  shift  from  himself  the  respon- 
sibiHty  of  a  matter  presumed  by  the  law 
to  lie  witliin  his  own  knowledge.  Tindal, 
C.  J.,  Godefrov  v.  Dalton,  4  M.  &P.  149, 
S.  C.  6  Bing.  460. 

{]}}  And  his  liability  is  not  removed  by 
the  fact  that  he  was  previously  retained  for 
the  party  to  whom  the  disclosures  were 
made,  and  that  his  em])loyer  knew  of  that 
former  retainer.  Taylor  v.  Blacklow,  3 
Bing.  N.  C.  235. 

(q)  Bricheno  v.  Thorp,  1   Jac.  300.  — 

[104] 


It  is  not  clear,  however,  if  it  be  distinctly 
siiown  that  confidential  disclosures  have 
been  made  to  the  attorney  or  solicitor, 
wliich  if  communicated  to  the  other  party 
must  be  directly  prejudicial  to  the  former 
client,  that  a  court  of  equity  would  not 
forbid  the  acceptance  of  the  second  re- 
tainer, altliough  the  attorney  was  dismissed 
for  no  misconduct.  Lord  Eldon,  C, 
Bricheno  v.  Thorp,  1  Jac.  303,  304; 
Cholmondeley  v.  Clinton,  19  Ves.  261, 
275.  In  the  latter  case  Lord  Eldon  said: 
"My  opinion  is  that  he  [the  attorney] 
ouglit  not,  if  he  knows  any  thing  that  may 
be  prejudicial  to  the  former  client,  to  ac- 
cept the  new  brief,  though  that  client  re- 
fused to  retain  him."  —  In  Johnson  v. 
Maniott,  4  Tyr.  78,  where  the  court  re- 
fused to  restrain  an  attorney,  who  (without 
his  misconduct)  liad  been  dismissed  from 
the  employment  of  the  plaintiffs,  from 
actiftg  for  the  defendant,  the  judges  rested 
their  decision  on  the  ground  that  there  was 
no  affidavit  by  the  ]ilaintiffs  that  the  at- 
torney, while  in  tlieir  employment,  had 
obtained  a  confidential  knowledge  of  par- 
ticular facts,  which  it  would  be  prejudicial 
to  their  case  to  communicate  to  the  de- 
fendant. 

(?•)  Lord  Eldon,  Cholmondeley  v.  Clin- 
ton, 19  Ves.  261  ;  Gumey,  B.,  Johnson  r. 
Marriott,  4  Tyr.  78. 

(.s)  Huntley  v.  Bulwer,  6  Bing.  N.  C. 
Ill  ;  Bracey  v.  Carter,  12  Ad.  &  EI.  373; 


ClI.  VI.] 


OF  ATTORNEYS. 


*99 


But  if  the  client  has  received  any  benefit,  he  must  in  England 
pay  the  bill,  and  may  then  have  an  action  for  damages,  (t)  It 
has  been  there  held,  however,  that  a  jury  may  discriminate 
between  the  several  items  in  an  account,  and  reject  those  for 
work  entirely  useless ;  (it)  and  it  may  be  doubted  whether  in 
America  the  client  might  not  reduce  the  attorney's  claim  by 
showing  the  little  value  of  the  benefit  received,  as  in  actions  for 
other  services. 

*An  attorney  is  in  general  liable  personally  on  an  agreement 
made  by  him  in  his  own  name,  although  only  professionally 
concerned  in  the  matter,  (u) 

There  are  many  English  statutes  relating  to  the  powers, 
duties,  and  responsibilities  of  attorneys,  which  have  no  force  in 
this  country.  Most  of  our  courts  have  rules  of  practice  bearing 
somewhat  on  this  subject,  (y) 


569; 
See 

&  P. 


Hill  V.  Fcatherfitonhaugh,  7  Binf 
Hopping;  !'.   Quill,  12  Wend.   517. 
Riiiiyan  r.  Nichols,  11  Jolins.  547. 

(l)   Tunipler  v.  McLachlan,  2  B. 
<N.  R.)  136. 

(U)  Shaw  V.  Arden,  9  Bing.  289. 

(u)  Hall  r.  Ashurt,  1  C.  &  Mce.  714  ; 
Iveson  V.  Coningtoii,  1  B.  &  Cress.  160; 
Burrell  r.  Jones,  3  B.  «&  Aid.  47  ;  Scrace 
V.  Whittiiipton,  2  B.  &  Cress.  11  ;  Wat- 
son i:  Murrel,  1  C.  &  P.  307.  —  In  New 
Hampsliire,  it  is  held  that  where  a  plain- 
tiff resides  within  that  State,  and  employs 
aJi  attorne}'  in  his  lieiialf  to  e^inmence  an 
action  for  liim,  snch  attorney  is  autliorized 
by  the  eni[doyment  to  place  the  name  of 
the  i)l:iintiff  upon  the  writ  a.s  indorser,  and 
to  hind  liim  as  such ;  and  in  such  case,  if 
tlie  indorsement  he  tlnis  :  "  A,  plaintiff, 
by  liis  attorney  B,"  tlic  plaintiff  is  regarded 
as  the  indorser,  and  the  attorney  is  not 


personally  bound ;  but  if  the  plaintiff  re- 
side out  of  tlic  State,  the  attorney  having 
no  authority  to  hind  the  plaintiff,  is  him- 
self personally  bound  by  such  indorse- 
ment, and  the  writ  accordingly  is  properly 
and  sufficiently  indorsed.  PettingiJl  i-. 
McGregor,  12  N.  H.  179;  Woods  v. 
Blodgctt,  15  N.  H.  569. 

(v)  The  nature  and  scope  of  the  au- 
thority of  attorneys  at  law  in  this  country 
arc  considered  in  Holker  v.  Parker,  7 
Cranch,  436;  Kr%vin  v.  Blake,  8  Pet.  18; 
Union  Bank  of  Georgetown  r.  Geary,  5 
id.  99 ;  United  States  v.  Currj',  6  How. 
106;  United  States  v.  Yates,"  id.  605; 
Smith's  Adm'r  v.  Lamberts,  7  Grattan, 
138;  Lewis  v.  Ganiage,  1  Pick.  347; 
Jenncy  v.  Lesdcrnier,  20  Maine,  183; 
Jewitt  r.  Wadleigli,  32  id.  110;  Slack- 
house  V.  O'Hara,  14  Penn.  88;  AValker 
V.  Scott,  8  Eng.  (Ark.)  644. 

[105] 


100 


THE  LAW   OF   CONTRACTS. 


[book  I. 


CHAPTER  VII. 

TRUSTEES. 

Sect.  I.  —  The  Origin  of  Trusts. 

It  can  hardly  be  denied  that  Trusts,  in  the  English  law,  had 
a  fraudulent  origin.  It  was  sought,  by  the  intervention  of  a 
trustee,  to  evade  the  feudal  law  of  tenures,  and  the  prohibitions 
of  the  statutes  of  Mortmain,  and  to  place  property  where  a 
creditor  could  not  reach  it.  The  practice  became  common ; 
and  as  such  trustee  was  not  accountable  at  common  law,  the 
Chancellor,  in  the  reign  of  Richard  II.,  applied  the  writ  of  sub- 
poena to  call  him  before  the  Court  of  Chancery,  where  he  might 
be  compelled  to  do  what  equity  and  justice  required.  "  A 
trust,"  said  Sir  Robert  Atkins,  [w)  "  had  for  its  parents  fraud 
and  fear,  and  for  its  nurse  a  court  of  conscience."  The  obvi- 
ous utility  of  trusts  has  made  them  very  common :  but  almost 
the  whole  jurisdiction  over  trustees  has  always  remained  in  the 
Courts  of  Equity,  [x)  So  far  as  they  come  under  the  super- 
vision and  control  of  the  common  law,  trustees  are  treated  in 
most  respects  as  agents,  and  most  of  the  principles  and  rules  of 


(w)  Attorney-General  v.  Sands,  Har- 
■dres,  405 ;  arguendo,  "  A  trust  is  alto- 
■gethcr  tlie  same  tliat  an  use  was  before 
27  Hen.  8,  and  they  have  the  same  par- 
ents, fraud  and  fear ;  and  the  same  nurse, 
a  court  of  conscience.  By  statute  Uiw,  an 
use,  trust,  or  confidence,  are  all  one  and 
the  same  thing.  What  an  use  is,  vide 
PI.  Com.  3.52,  and  1  Rep.  in  Chudleigh's 
case ;  and  they  are  collateral  to  the  land ; 
a  cestui  que  trust  has  neither  jus  ad  rem  nor 
in  re." 

(x)  Co.  Litt.  272,  b  ;  Chudleigh's  case, 
1  Coke,  121.  "So  that,  he  who  hath  an 
use  hath  not  _;'hs,  neque  in  re,  neaue  ad  rem, 

[106] 


but  only  a  confidence  and  trust,  for  which 
he  hath  no  remedy  by  the  common  law, 
but  his  remedy  was  only  by  subpoena  in 
chancery.  If  the  feoffees  would  not  per- 
form the  order  of  the  chancery,  then  their 
persons  for  the  breach  of  the  confidence 
were  to  be  imprisoned  till  they  did  per- 
form it."  —  Foorde  v.  Hoskins,  2  Buls. 
337.  Per  Coke,  C.  J. :  "If  cestui  que  use 
desires  the  feoftees  to  make  the  estate 
over,  and  they  so  to  do  refuse,  for  this 
refusal  an  action  upon  the  case  lieth  not, 
because  for  this  he  hath  his  proper  rem- 
edy by  a  subpoena  in  the  chancery."  . 


Cir.    VII.]  TRUSTEES.  *101 

law  in  relation  to  them  have  been  anticipated  and  stated  under 
that  head. 


*SECTION    II. 

CLASSIFICATION   OF   TRUSTS. 

Trusts  are  simple  when  property  is  vested  in  one  person  vpon 
trust  for  another,  without  any  particular  directions  or  provis- 
ions ;  and  then  the  nature  and  operation  of  the  trust  are  deter- 
mined by  legal  construction.  They  are  special,  where  the  pur- 
poses of  the  trust,  and  the  manner  in  which  they  are  to  be 
accomplished  are  especially  pointed  out  and  prescribed ;  and 
then  these  express  provisions  must  be  the  rule  and  measure!  of 
the  trustee's  rights  and  duties. 

They  may  i)e  merely  ministerial,  as  where  one  receives 
money  only  to  pay  the  debt  of  the  giver,  or  an  estate  is  vested 
in  him  merely  that  he  may  convey  it  to  another.  Or  they  may 
be  discretionary,  where  much  is  left  to  the  prudence  and  judg- 
ment of  the  trustee.  But  in  all  cases,  the  trustee,  by  accepting 
the  trust,  engages  that  he  possesses,  and  that  he  will  exert  that 
degree  of  knowledge,  intelligence,  and  care,  reasonably  requisite 
for  the  proper  discharge  of  the  duties  which  he  undertakes  to 
perform. 

A  trust,  Z6u7/i  a  power  annexed,!?,  distinguished  from  a  mixture 
of  trust  and  power,  (ij)  In  the  former  case,  as  where  lands  are 
vested  in  trust,  with  a  power  in  the  trustees  to  make  leases  of  a 
c.ertain  kind,  or  length,  the  trustee  may  or  may  not  exercise  this 
power,  and  will  not  be  compelled  to  do  so,  unless  his  neglect  to 
exercise  it  be  fraudulent  and  wrongful.  But  in  the  latter  case, 
as  where  lands  or  funds  are  vested  in  trust  for  certain  persons,, 
to  be  "  distributed  among  them  according  to  the  best  judgment 
of  the  trustee,"  here  the  distribution  is  of  the  essence  of  the 
trust,  and  must  be  made ;  although  in  the  manner  of  distribu- 

{}j)  Gowcr  V.  Mainwaring,  2  Vcs.  Sen.  89 ;  Cole  v.  "Wade,  16  Vcs.  Jr.  43. 

[107] 


102*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

tion,  the  courts  will  not  interfere,  unless  to  prevent  fraud  or 
other  wrong. 

Trustees  are  also  private  or  public.  The  former  hold  prop- 
erty for  the  benefit  of  an  individual  (the  cestui  que  trust)  or 
more  than  one,  but  who  are  distinctly  pointed  out,  personally, 
or  by  other  sufficient  description.  Public  trustees  are  those 
*who  hold  for  the  benefit  of  the  whole  public,  or  for  a  certain 
large  part  of  the  public,  as  a  town  or  a  parish  ;  and  they  are 
usually  treated  as  official  persons,  with  official  rights  and  re- 
sponsibilities. 


SECTION    III. 

PRIVATE   TRUSTEES. 

• 

A  private  trustee  is,  as  we  have  seen,  one  to  whom  property, 
either  real  or  personal,  has  been  given  to  be  held  in  trust  for 
the  benefit  of  others ;  and  the  most  common  instances  are 
trustees  of  property  for  the  benefit  of  children,  or  other  devisees 
or  legatees,  or  for  married  women,  or  for  the  payment  of  the 
debts  of  an  insolvent,  or  for  the  management  and  winding  up 
of  some  business  and  the  like. 

The  legal  estate  is  in  the  trustee,  and  the  equitable  estate  is 
in  the  cestui  que  trust ;  but  as  the  trustee  holds  the  estatCy  al- 
though only  with  the  power  and  for  the  purpose  of  managing 
it,  he  is  bound  personally  by  the  contracts  that  he  makes  as 
trustee,  although  designating  himself  as  such  ;  and  nothing 
will  discharge  him  but  an  express  provision,  showing  clearly 
that  both  parties  agreed  to  act  upon  the  responsibility  of  the 
funds  alone,  or  of  some  other  responsibility,  exclusive  of  that  of 
the  trustee ;  or  some  other  circumstance  clearly  indicating 
another  party  who  is  bound  by  the  contract,  and  upon  whose 
credit  it  is  made.  The  mere  use  by  the  promisor  of  the  name 
of  Trustee,  or  of  any  other  name  of  office  or  employment,  will 
not  discharge  him.  Some  one  must  be  bound  by  the  contract, 
[108] 


CH.  VII.] 


TRUSTEES. 


*103 


and  if  he  does  not  bind  some  other,  he  binds  higaself,  (z)  and 
the  official  name  is  then  regarded  only  as  describing  and  desig- 
nating him. 

*A  trustee  is  held  not  only  to  careful  management  of  the 
trust  property,  so  that  it  shall  not  be  wasted  or  diminished,  but 
he  is  bound  to  secure  its  reasonable  productiveness  and  increase. 
If  it  lie  idle  in  his  hands,  without  cause,  he  will  be  charged 
interest,  (a)  In  some  instances  he  is  charged  compound  inter- 
est; but  there  is  some  discrepancy  in  the  cases  in  which  the 
question  of  compounding  interest  occurs.  On  the  whole,  we 
think  the  rule  may  be  stated  thus  :  Interest  will  be  compound- 
ed, or  computed  with  annual  rests,  where  the  trustee  is  guilty 
of  gross  delinquency,  or  mingles  the  trust  property  with  his 
own  for  his  own  benefit,  or  otherwise  so  uses  the  trust  funds 
as  to  justify  the  belief  that  he  has  actually  earned  interest  upon 
the  interest;  and  the  reason  for  charging  compound  interest  is 
much  stronger,  when  the  trustee  refuses  to  exhibit  the  accounts, 
which  would  show,  precisely,  what  loss  or  advantage  he  has 
derived  from  the  trust  funds,  (b)     But  he  will  not  be  charged 


{z)  Tlioinas  r.  Bishop,  Cases  Temp. 
IlanlwUki',  9,  2  Str.  935.  In  this  case 
a  cashier  was  held  liable  on  a  bill  accepted 
by  him  j^enerally,  tliouj^h  it  was  drawn 
on  account  of  the  coin])any.  Childs  v. 
Monins,  2  Iko.  &  Bin^;.  4G().  A  promis- 
sory note  liy  which  the  mahcrs,  ax  ctpch- 
tors,  J<ii)it/i/  and  scventlli/  promise  to  j)ay  on 
demand  with  interest,  renders  tliem  per- 
sonally liable. — Eaton  v.  Bell,  5  B.  & 
Aid.  34.  Commissioners  of  a  private 
inrlosurc  act,  arc  personally  liable  on 
drafts  drawn  on  bankers,  reipiestinp  them 
to  pay  the  sums  therein  mentioned  on 
account  of  the  public  drainafxc,  and  to 
place  the  same  to  tiieir  account,  as  com- 
missioners.—  Rew  V.  Bettet,  1  A.  &  E. 
19G,  .'i  N.  &  M.  456.  The  makei-s  of  a 
note  who  si;;n  it  "as  church-wardens  and 
overseers,"  are  ])ersonalIy  liable,  althoujjjii 
the  loan  was  for  the  use  of  the  parish.  — 
A'.r  p,i,lr  Huckley,  14  M.  &  W.  409.  It 
was  lielrl  in  this  case  that  there  wius  no 
separate  ri;;lit  of  action  af;ainst  "  K.  M." 
a  ]>artncr  who  sij^ned  a  promissory  note 
for  himself  and  his  copartner  thus  :  "  For 
J.  C,  R.  M.,  J.  r.,  and  T.  S.,"  "  K. 
M." 

VOL.  I.  10 


(a)  Green  v.  Winter,  1  Johns.  Ch.  2G ; 
Mannin<;  v.  ^fanninf^,  1  Johns.  Ch.  527  ; 
Schieflelin  v.  Stewart,  1  Johns.  Ch.  G20. 
In  Attorney-General  v.  Alford,31  E.  L. 
&  E.  4f)G,  the.  rule  upon  this  point  is 
laid  down  thus :  The  measure  by  which 
the  court  ought  to  charge  a  tnu'^tee  in- 
terest is,  to  ascertain  what  interest  he  has 
received,  or  ought  to  have  rceivcd,  or 
that  lie  is  estopped  from  saying  he  did  not 
receive. 

(/))  lie  will  be  charged  with  compound 
interest  if  he  is  grossly  deliminent  in  the 
investment  of  the  money,  or  emi)l()ys  it  in 
trade,  refusing  to  account  for  the  jjrotits. 
Jones  V.  Eoxall,  13  E.  L.  &  E.  140; 
Schieftelin  v.  Stewart,  1  Johns.  Ch.  G20  ; 
Evertson  v.  Tappen,  5  Johns.  Ch.  497  ; 
Luken's  Ajipeal,  7  W.  &  S.  48  ;  Boyn- 
ton  )'.  Dyer,  IS  Pick.  1  ;  Turney  /■.  Wil- 
liams, 7*Yerg.  172  ;  Wright  v.  Wright,  2 
McCord,  Ch.  200;  Bryant  ;•.  Craig,  12 
Ala.  354  ;  Karr's  Adm'r  v.  Karr,  6  Dana, 
3  ;  Rowan  i-.  Kirkputrii  k,  14  111.  1  ;  Bar- 
ney r.  Saunders,  IG  How.,  S.  C.  535. 
See  also  Raphael  r.  Boehm,  11  Ves.  92, 
S.  C.  13  Ves.  407,  590  ;  Ashbuniham  v. 
Thompson,   13  Ves.  402  ;  Tebbs  r.  Car- 

[  100.} 


104* 


THE   LAW    OP    CONTRACTS. 


[book  I. 


even  with  si^iple  interest  until  a  reasonable  time  for  investment 
has  elapsed ;  and  this  has  *been  held,  in  some  cases,  six  months, 
a  year,  or  even  two  years,  (c) 

A  trustee  must  not  himself  purchase  the  property  which  it  is 
his  duty  as  trustee  to  sell ;  nor  sell  the  property  which,  as  trus- 
tee, he  purchases.  This  rule  applies,  in  its  whole  extent,  to  all 
agents,  and  the  reasons,  limitations,  and  authorities  for  it,  were 
presented  in  treating  of  that  subject. 


penter,  1  Mad.  299.  —  But  mere  neglect  to 
invest  the  money  or  an  improper  invest- 
ment, without  gross  delinquency,  (Knott 
V.  Cottee,  13  E.  L.  &  E.  304 ;  Robinson 
V.  Robinson,  9  E.  L.  &E.  69  ;  Schieifelin 
V.  Stewart,  1  Johns.  Ch.  620;  McCall's 
case,  1  Asli.  357  ;  English  v.  Harvey,  2 
Rawle,  305  ;  Ilarland's  case,  5  Rawle, 
323  ;  Findlay  v.  Smith,  7  S.  &  R.  264  ; 
Dietterich  ?\  Heft,  5  Barr,  87,)  or  merely 
mingling  the  trust  funds  with  his  own,  is 
not  sufficient  to  charge  him  with  com- 
pound interest.  Glarkson  v.  De  Peyster, 
1  Hopkins,  Ch.  424,  2  Wend.  77,  S.  C. 
nom.  Do  Peyster  v.  Clarkson  ;  Stafford 
171  re,  11  Barb.  353  ;  Ker  v.  Snead,  Cir- 
cuit Court  of  Virginia,  (Oct.  1847); 
Scarbunjh,  J.,  11  Law  Reporter,  217.  In 
the  case  of  Fay  v.  Howe,  1  Pick.  527  and 
Robbins  v.  Haywai-d,  cited  in  a  note  to 
this  case,  where  large  sums  of  money  had 
come  into  the  hands  of  a  guardian  of  in- 
fants, there  being  rents  of  real  estate  and 
income  from  public  stocks  periodically 
received,  and  no  account  had  been  settled 
for  many  years,  it  Avas  ordered  that  an 
account  should  be  settled  with  a  rest  for 
every  year,  and  the  balance  thus  struck  be 
carried  forward,  to  be  again  on  interest, 
whenever  the  sum  should  be  so  large  that 
a  trustee  acting  faithfully  and  discreetly 
would  have  put  it  into  a  productive  state. 
And  five  liundred  dollars  was  the  sum 
which  the  court  thougiit  should  subject 
the  guardian  to   this   charge.      But   for 

[110] 


cases  in  which  it  appears  to  be  doubted 
whether  compound  interest  should  be 
charged  to  a  trustee,  sec  Estate  of  McCall, 
1  Ashm.  357 ;  English  v.  Harvey,  2 
Rawle,  305 ;  Harland's  case,  5  Rawle, 
323  ;  Findlay  v.  Smith,  7  S.  &  R.  264  ; 
Ackerraan  v.  Emott,  4  Barb.  626.  And 
see  Dietterich  v.  Heft,  5  Barr,  87  ;  Kerr 
V.  Laird,  27  Miss.  544. 

(c)  In  Kan-  v.  Karr,  6  Dana,  3,  two 
years  were  allowed  for  periodical  rests,  at 
the  end  of  which  periods  the  interest 
should  be  made  principal.  In  Duns- 
comb  V.  Dunscomb,  I  Johns.  Ch.  508, 
six  months  after  receipt  of  the  moneys 
was  thought  a  reasonable  time,  after 
which  interest  should  be  charged.  In 
MeiTick's  estate,  1  Ashm.  304,  six  months 
was  allowed.  And  see  Worrell's  Appeal, 
23  Pcnn.  St.  Rep.  44.  In  De  Peyster  v. 
Clarkson,  2  Wend.  77,  six  months  was 
allowed.  In  Fox  v.  Wilcocks,  I  Binn. 
194,  the  administrator  was  held  charge- 
able with  interest  after  twelve  months  liad 
elapsed  from  the  death  of  the  intestate. 
In  Boynton  v.  Dyer,  18  Pick.  8,  one  year 
was  considered  the  projjcr  jieriod.  In 
Schieffelin  v.  Stewart,  1  Johns.  Ch.  R. 
620,  the  jilaintiff  was  administrator,  and 
was  allowed  from  the  8th  September, 
1803,  when  administration  was  granted, 
to  the  6th  July,  1805,  when  the  last  debt 
of  any  magnitude  was  jiaid  to  the  estate ; 
then  interest  began,  and  the  account  was 
computed  afterwards  with  annual  rests. 


r 


CH.  VII.]  TRUSTEES.  *105 


SECTION    IV. 

PUBLIC   TRUSTEES. 

There  is  an  important  difference  between  these  trustees  and 
private  trustees,  in  respect  to  their  personal  responsibility  for 
their  contracts.  Where  one  acts  distinctly  for  the  public,  and 
in  an  oflicial  or  quasi  official  capacity,  although  he  engages  that 
certain  things  should  be  done,  he  is  nevertheless  not  liable  on 
this  engagement,  unless  there  be  something  in  the  contract,  or 
some  admissible  evidence  respecting  it,  which  shows  that  the 
parties  understood  and  intended  the  promisor  to  make  his 
promise  personally,  and  to  be  bound  himself,  instead  of  the 
State,  or  in  addition  to  the  State,  for  the  due  performance  of 
the  promise,  (d) 

*But  trustees  and  other  officers  are  sometimes  held  person- 
sonally  upon  their  contracts,  as  for  payment  of  wages,  materi- 
als supplied,  &c.,  where  they  have  charge  of  public  works,  and 
have  funds  which  they  may  use  for  these  purposes,  and  espe- 
cially where  the  nature  of  the  transaction  shows  that  the  party 

{(l)  Macbcath  v.  Ilaldiin.iiul,  1  T.  R.  be  (k'trimcntal  to  the  kin-^'s  service,  for 
172.  This  was  an  action  on  promises  no  private  person  would  accept  of  any 
a;;ainst  a  defendant,  (who  was  Governor  command  on  sucli  terms.  The  case  of 
of  Queliee,)  for  worlc  and  hihor,  &c.  Maebetii  v.  Ilaldimand  seems  to  govern 
Bidhr,  J.,  said :  "  It  is  true  tliat  he  (tlie  .  tlie  present.  It  was  tliere  determined 
defendant)  fravc  the  orders  to  Sinchiir,  tiiat  a  commander  was  not  answeral)le  for 
and  that  every  thinj;  which  the  phiintitf  contracts  entered  into  by  iiim  on  liehalf  of 
did  was  pursuant  to  directions  from  the  government.  And  wlietlier  tlie  contract 
latter,  whom  he  was  instructed  to  obey  ;  1)0  by  parol  or  by  deed,  it  makes  no  dif- 
but  tliese  ordei-s  did  not  (low  from  tlie  ference  as  to  the  construction  to  be  put 
defendant  in  his  own  personal  character,  on  it.  That  indeed  was  a  stronger 
but  ;us  governor  and  agent  for  the  ])ub-  case  than  the  present ;  because  there  it 
lie ;  anil  so  the  iilaintift'  hiniself  considered  was  left  open  to  evidence,  from  whence  it 
it.  And  in  any  case  where  a  man  acts  as  was  to  be  inferred  that  the  contract  was 
agent  for  the  public,  and  treats  in  that  made  by  the  defendant  as  the  agent  of 
capacity,  there  is  no  pretence  to  say  that  the  government,  but  here  it  appears  in  ex- 
he  Ms  personally  liable."  Unwin  r.  press  terms  that  the  defendant  entered 
Wolseley,  1  T.  I{.  <'i74.  Asliiirat,.].,  said  :  into  this  contract  on  the  liehalf  of  guvern- 
"  It  would  be  e.\treniely  dangerous  to  ment."  Sec  also  Hodgson  r.  Dexter,  1 
hold  that  governors  and  commanders  in  Cninch,  34.5  ;  Tucker  r.  Justices,  1,?  Ire. 
chief  should  make  themselves  personally  L.  434;  Stephcuson  r.  Weeks,  2  Tost, 
liable  by  contracts  which  they  enter  into  257. 
on  the  part  of  the  government.     It  would 

[111] 


I 


106*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

dealing  with  them  may  well  have  supposed  that  he  was  deal- 
ing with  them  on  their  own  account,  or  that  they  intended, 
although  acting  for  the  public,  to  be  responsible  for  the  materi- 
als they  bought  or  the  labor  they  hired,  (e)  Such  trustees 
know  the  state  of  the  means  in  their  hands,  and  how  far  they 
may  rely  upon  a  public  provision  of  funds,  and  may  contract 
accordingly,  while  those  who  deal  with  them  cannot  know  this 
at  all,  or  certainly  not  so  well.  (/) 

The  true  principle  which  runs  through  all  of  these  cases,  and 
applies  alike  to  private  and  public  trustees,  is  this.  To  whom 
did  the  promisee  give  credit,  and  to  whom  did  the  *proraisor 
understand  him  to  give  credit  ?  If  the  promisee  gave  credit  to 
the  promisor,  and  was  justified  in  so  understanding  the  case, 
and  the  promisor  as  a  rational  person  knew  or  should  have 
known  that  the  promisee  trusted  to  him  personally,  and  he  did 
not  guard  the  promisee  from  so  trusting  him,  then  he  cannot 
turn  him  afterwards  over  to  those  whom  he  represents,  because 
he  must  abide  his  responsibility.  On  the  other  hand,  if  the 
promisor  supposed  the  promisee  to  trust  only  to  those  for  whose 
benefit  he  acted,  or  rather  to  the  funds  and  means  possessed  by 
him  as  trustee,  and  if  he  had  a  right  to  suppose  so,  and  the 
promisee  did  not  demand  and  receive  the  assurance  of  his  per- 

(e)  Horsley  v.  Bell   and   others,   Am-  gaged  to  do  the  work  could  not   know 

bier,    769.     An   act    of    parliament  was  the    state  of  the  fund,   nor  was  it  their 

passed  to  make  a  certain  brook  navigable,  business  to  inquire  ;  they  gave  credit  to 

The  defendants,  with  many  other  persons,  the    commissioners."      CuUen    ;•.    Duke 

were  named  commissioners  to  put  the  act  of  Queensbcrry,   1    Bro.  C.   C.  101,  and 

in  execution.     Certain   tolls   were   to   be  notes. 

paid  by  vessels  which  should  navigate  the         (/)   Higgins    v.   Livingstone,  4   Dow, 

brook,  and  the  commissioners  were  em-  34-1,355.     Lord -CWon,  in  this  case,  said  : 

powered  to  borrow  money  on  these  tolls.  "  As  to  the  general  liability  of  parliamen- 

The  commissioners  employed  the  plain-  tary  trustees,  if  I  were  to  give  an  opin- 

tift"  to  do  different  parts  of  the  woi-ks,  and  ion,  I  would  say  that  when  persons  act 

such  of  the  commissioners  as  were  pi'cs-  under  a  parliamentary   trust,  and   state 

ent  at  the  several  meetings,  made  orders  themselves  as  so  acting,  they  are  not  to  be 

relative  thereto.     Every  one  of  them  was  held  personally   liable.     But  this  also,  I 

present  at  some  of  the  meetings,  but  no  think,  rests  on  strong  principle,   that  .as 

one  was  present  at  all  the  meetings.     The  the  trustees  must  know  whether  there  are 

fund  proving  deficient,  it  was  held  that  all  funds  to  answer  the  jjurpose,  they,  when 

the  acting  commissioners  were  personally  tliey   contract  with   others,    who  do  not 

liable  to  the  plaintiff.     The  Lord  Chan-  know,  act  as  if  representing  that  they  had 

cellor  and  the  judges  agreed  in  opinion,  a  fund  applicable  to  the  object,  and  are 

"  The  commissioners  had  power  to  bor-  then  personally  bound  to  provide  funds 

row  money,  and  ought  to  take  care  to  be  to  pay  the  contractors." 
provided.      Tliat  the  workmen  who  en- 

[112] 


CH.  VII.] 


TRUSTEES. 


-106 


sonal  liability,  then  no  such  liability  exists,  and  he  is  bound 
only  to  act  faithfully  as  a  trustee  in  the  discharge  of  his  prom- 
ise. 

An  agent  who  exceeds  his  authority  and  fails  to  bind  his 
principal,  becomes  liable  himself.  On  this  familiar  principle 
public  trustees  or  olFicers,  as  town  or  parish  officers,  who  enter 
into  contracts  in  their  official  capacity,  and  on  behalf  of  the 
corporations  which  they  represent,  if  they  so  deviate  from  or 
exceed  their  authority  as  not  to  bind  these  corporations,  are 
themselves  liable,  (g-)  But  whether  on  the  contract,  or  in  case, 
must  depend  on  the  character  and  circumstances  of  the  trans- 
action, (gg) 


(g)  Sprott  V.  Powell,  3  Bing.  478; 
Lci'^h  V.  Taylor,  7  B.  &  C.  491  ;  IIcu- 
dcbourck  v.  Langton,  3  C.  &  P.  571  ; 
Ivirbv  V.  Bannister,  5  B.  &  Ad.  1069, 
S.  C.  3  N.  &  M.  119;  Burton  v.  Grif- 
fiths. 11  M.  &  W.  817;  Bay  v.  Cook,  2 
N.  Jcr.  343  ;  Husbands  v.  Smitli's  Adm'r, 
14  B.  Monr.  211.  —  Uthwatt  v.  Elkins, 
13  M.  &  W.  772.  Cluu-cii-wardcns  and 
overseers  of  a  parish  having  taken  a  lease 
of  land  in  tiieir  official  capacity,  wliicli 
they  were  not  authorized  by  the  statute 

10* 


59  Geo.  3,  c.  12,  to  hold  in  the  nature  of 
a  corjioration,  it  was  held  to  lie  a  personal 
undertaking  of  their  own,  on  wliich  tliey 
were  individually  responsible  for  tlic  pay- 
ment of  rent.  —  Anon.  1 2  Mod.  559.  "  If 
an  overseer  of  the  i)oor  contract  Avith 
tradesmen  upon  account  of  the  poor,  and 
u])on  his  own  credit,  as  soon  as  he  re- 
ceives so  much  of  the  poor's  money,  it 
becomes  his  own  debt."  ffolt,  C.  J. 
(f/f/)  See  ante,  p.  57,  note  (  /"). 

[113] 


107-*108 


THE   LAW   OF   CONTRACTS. 


[book  I. 


CHAPTER     VIII. 


OF   EXECUTORS   AND   ADMINISTRATORS. 


They  act  as  the  personal  representatives  of  the  deceased, 
having  in  their  hands  his  means,  for  the  purpose  of  discharging 
his  liabilities  or  executing  his  contracts,  and  of  carrying  into 
effect  his  will,  if  he  have  left  one ;  and  in  general,  they  are 
liable  only  so  far  as  these  means,  or  assets  in  their  hands,  are 
applicable  to  such  purpose.  But  they  may  become  personally 
liable ;  and  a  clause  in  the  statute  of  frauds,  hereafter  to  be 
spoken  of,  refers  to  this  subject.  In  England  it  is  regarded  as 
the  peculiar  province  of  a  court  of  equity  to  administer  justice 
in  cases  of  legacies,  (h)  The  law  *andj  practice  on  this  subject 
vary  somewhat  in  difterent  States  of  this  country. 


(/()  Decks  V.  Strutt,  5  T.  R.  690,  and  see 
Jones  V.  Tanner,  7  B.  &  Cress.  542.  But 
it  seems  Decks  v.  Strutt  is  to  be  understood 
as  only  deciding  that  an  action  for  a  leg- 
acy cannot  be  maintained  upon  an  assent 
of  the  executor  merely  implied  from  his 
possession  of  sufficient  assets  ;  leaving  it 
open  to  say  that  an  action  may  lie  upon 
an  express  promise  by  him  in  considera- 
tion of  assets,  or  upon  an  express  admis- 
sion by  him  that  he  has  money  in  his 
hands  for  the  payment  of  such  legacy. 
Barber  v.  Fox,  2  Wms.  Saund.  137,  c.  n. 
(a,)  citing  Atkins  v.  Hill,  Cowp.  284,  and 
Gorton  v.  Dyson,  1  B.  &  B.  219.  It  has 
been  held  that  where  an  account  of  the 
residuary  estate  of  a  testator  has  been 
made  out  by  the  executors,  and  signed  by 
the  parties  interested,  under  which  ac- 
count all  of  them  have  been  paid  except 
one,  such  one  may  recover  his  proportion, 
with  interest,  in  assumpsit  against  the  ex- 
ecutors. Gregory  v.  Harman,  3  C.  &  P. 
205.  Upon  the  assent  of  the  executor  to 
a  bequest  of  a  specific  chattel,  whether  per- 
sonal or  real,  the  interest  in  it  vests  in  the 
legatee,  and  he  may  recover  it  by  an  action 
at  law.  Doe  v.  Guy,  3  East,  120.  And  see 
Paramour  r.  Yardly,  Plowd.  539.  Whether 

[114] 


an  executor  has  assented  to  a  bequest  is 
a  question  of  fact  for  the  jury,  and  not  a 
matter  of  law  to  be  determined  by  the 
court.  Mason  v.  Farncll,  12  M.  &  W. 
674.  —  Lord  Holt  is  reported  to  have  said, 
Ewer  V.  Jones,  2  Salk.  415,  that  a  devisee 
may  maintain  an  action  at  common  law 
against  a  terre-tenant,  for  a  legacy  devised 
out  of  land  ;  for  where  a  statute,  as  the 
statute  of  wills,  gives  a  right,  the  party  by 
consequence  shall  have  an  action  at  law 
to  I'ccover  it.  In  Braithwaite  v.  Skinner, 
5  M.  &  W.  313,  this  dictum  was  much 
discussed,  and  the  learned  Barons  were  of 
opinion  that  it  was  to  be  taken  with  a 
material  qualification,  which  is  thus  stated 
by  Parke,  B. :  "  The  statute  of  wills  en- 
ables a  pai-ty  to  dispose  by  will  of  the 
property  wliich  lie  might  have  disposed  of 
during  his  lifetime  at  his  freewill  and 
pleasure.  I  think  the  meaning  of  Lord 
Holt  is  this  — that  if  a  person  gives  an  in- 
terest which  could  be  enforcetl  by  an  ac- 
tion at  law,  the  statute  would  give  an 
action  for  it.  Thus,  if  a  person  devised 
by  will  a  right  of  common,  the  devisee 
would  have  a  right  of  action  for  it ;  so  if 
lie  devised  a  rent  which  was  not  a  free- 
hold rent,  (which  could  not  be  the  subject 


en. 


VIII.] 


OF   EXECUTORS   AND   ADMINISTRATORS. 


109 


It  is  said  that  the  promise  of  an  executor  to  pay  a  debt, 
"  whenever  sufficient  effects  are  received  from  the  estate  of  fhe 
deceased,"  must  be  construed  to  mean  sufficient  effects  received 
in  the  ordinary  course  of  administration,  according  to  law.  (i) 
If  an  executor  or  administrator  receives  as  such  a  promissory 
note  or  bill  of  the  deceased,  and  indorses  the  same,  he  is  liable 
upon  it  personally,  (j)  If  he  makes  a  note  or  bill,  signing  it 
"  as  executor,"  he  is  personally  liable,  unless  he  expressly  limits 
his  promise  to  pay,  by  the  words,  "  out  of  the  assets  of  my 
testator,"  or  "  if  the  assets  be  sufficient,"  or  in  some  equivalent 
way ;  {k)  but  a  note  or  bill  so  qualified  would  not  be  nego- 
tiable, because  on  condition.  If  an  executor  'or  administrator 
submits  a  disputed  question  to  arbitration,  in  general  terms. 


of  an  action  at  law,)  an  action  would  lie 
for  it.  So  if  he  devised  a  right  of  way,  it 
coulil  he  enforced  hy  action  ;  or  if  he  left 
a  term,  the  right  to  it  miglit  he  enforced 
hy  ejectment.  So  if  the  testator  clearly 
meant  to  impose  a  duty  upon  another  per- 
son, ol)liging  him  to  i)ay  a  legacy,  an  ac- 
tion of  deht  would  lie  for  it  against  the 
person  on  whom  the  duty  of  paying  the 
money  was  imposed  ;  as  if  the  testator  left 
an  estate  in  fee  to  A,  directing  him  to  pay 
a  sum  of  money  to  I? ;  I  am  not  jjrepared 
to  say  that  an  action  of  del)t  might  not 
lie  after  A  had  accepted  the  estate,  found- 
ed upon  the  duty  created  hy  the  testator  of 
paying  that  sum.  Hut  it  is  going  too  far 
to  say  that  the  ."Statute  would  give  a  right 
of  action  for  tliose  tilings  which  are  mei-e- 
ly  ecpiitatile  interests;  as,  for  example,  if 
a  testator  had  created  a  tnist  in  favor  of  a 
person,  it  would  he  ahsurd  to  say  that 
person  could  enforce  the  trust  hy  an  action 
at  law."  In  this  ca,<e  the  testator  devised 
lands  in  fee,  after  the  determination  of 
certain  life-estates,  to  A,  IJ,  and  C,  as 
tenants  in  common,  suhject  to  and  charged 
with  tiie  payment  of  2(iU/.,  which  he  tliere- 
hy  lie(iueatiied  to,  and  to  he  c([nally  divid- 
ed among  tlic  children  of  his  niece:  A 
and  15,  during  tiie  life  of  one  of  the  ten- 
ants for  life,  granted  liieir  reversion  in  two 
undivided  third  parts  of  the  land  to  mort- 
gagees for  5(U)  years.  It  was  held  that  an 
action  of  deht  could  not  he  maintained 
against  the  termors  for  a  share  of  'J(K)/.  so 
hecpieatlied  ;  on  the  ground  that  admitting 
Lord  //»//'.<  dictum  to  he  corrt'ct,  that 
where  the  testator  merely  intended  to 
create  a  duty  from  one  pci-son  to  another, 


the  law  would  give  a  remedy ;  in  this  case 
no  duty  was  imposed  ui)on  the  defendants 
towards  the  plaiutitf,  which  could  he  en- 
forced hy  an  action  of  f/dt.  SfinUc,  no 
action  at  law  could  he  maintained,  Imt  the 
proper  remedy  was  in  equity.  And  see 
on  this  point  lieceker  v.  Ueecker,  7  Johns. 
99;  Van  Orden  i:  Van  Orden,  10  Johns. 
30.  —  In  Connecticut  and  New  Ilamp- 
sliirc,  it  has  been  held  that  an  action  at 
law  will  lie  against  an  executor  ujion  a 
l»romise  implied  from  the  possession  of 
a.ssets.  Knapp  r.  Ilanford,  6  Conn.  170; 
riekcring  v.  Pickering,  6  N.  II.  120.  But 
it  is  heiieved  that  in  jurisdictions  where 
courts'  of  chancery  have  existed,  the  doc- 
trine of  the  English  cases  has  heen  fol- 
lowed. See  Kent  v.  Somervell,  7  G.  & 
Johns.  2G5 ;  Sutton  v.  Crain,  10  G.  & 
Johns.  458,  —  An  action  at  law  hy  a  lega- 
tee for  a  legacy  on  the  executor's  promise, 
must  he  Iirought  .against  the  executor  in 
his  personal,  not  in  his  repi-esentativo, 
capacity.    Kayser  v.  Disher,  9  Leigh,  3.')7. 

(/)  liowcrhank  v.  Monteiro,  4  Taunt. 
844. 

(./)  Bnllrr,  J.,  King  v.  Thorn,  1  T.  K. 
489  ;  Curtis's  Ex'x  v.  Bank  of  Somerset, 
7  II.  &  Johns.  25. 

(/■■)  Cirilds  r.  Monins,  2  B.  &  B.  460  ; 
King  r.  Thom,  1  T.  K.  489 ;  Woods  r. 
Kidley,  27  Miss.  119  ;  Forster  v.  Fuller,  6 
Mass.  .58,  where  the  jirinciple  was  ap])lied 
to  tlic  case  of  a  guardian.  —  As  to  cove- 
nants I)y  executors  or  administrators,  made 
juxtfesscdly  iu  tlu-ir  cajiacitv  as  sudi,  sec 
Sumner  >■'.  Williams,  8  Mass.  102  ;  Tiuiyer 
r.  Wendell,  1  Gall.  37. 

[115] 


110*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

and  without  an  express  limitation  of  his  liability,  and  the  arbi- 
trators award  that  he  shall  pay  a  certain  sum,  he  is  liable  to 
pay  it  whether  he  has  assets  or  not.  (/)  But  if  the  award  be 
merely  that  a  certain  sum  is  due  from  the  estate  of  the  de- 
ceased, without  saying  that  the  executor  or  administrator  is  to 
pay  it,  he  is  not  precluded  from  denying  that  he  has  assets,  {m) 

When  there  is  a  contract  with  an  executor  or  administrator, 
by  virtue  of  which  money  has  become  due,  and  the  money  if 
recovered  will  be  assets  in  his  hands,  he  may,  in  general,  sue 
for  it  in  his  representative  capacity,  (n)  And  so  he  may  be 
sued  as  executor  for  money  paid  for  his  use  in  that  capacity,  (o) 

With  respect  to  covenants  relating  to  the  freehold,  the  rule 
of  law  is  that  for  the  breach  of  a  covenant  collateral  or  in  g-ross^ 
whether  such  breach  occur  before  or  after  the  death  of  the  cov- 
enantee, the  personal  rspresentative  must  sue  and  not  the 
heir;(/))  for  the  breach  of  a  covenant  which  runs  ivith  the 
land,  the  heir  must  sue  if  the  breach  occur  after  the  covenant- 
ee's death,  the  personal  representative  if  it  occur  before,  [q) 
The  doctrine  of  a  continuing  breach,  for  which  the  heir  or 
assignee  may  recover  if  the  ultimate  and  substantial  damage 
is  suffered  by  him,  was  established  in  England  by  the  case  of 
Kingdon  v.  Nottle,  [r)  but  it  has  not  been  *adopted  in  this  coun- 

{l)  Ricidellr.  Sutton,  5  Bing.  200.  tris,  56,  3  Salk.  109;  Smith  v.   Simons, 

'(m)  Pearson  v.  Henrv,  5  T.  R.  6.  Comberbach,  64. 

[n]  Cowcll  V.  AVatts,"6  East,  405  ;  King         (/•)  1  M.   &  Sel.  355  ;  4  M.  &  Sel.  53, 

V.  Thorn,  1  T.  R.  487  ;  Marshall  v.  Broad-  (with  which  King  v.  Jones,  5  Taunt.  418, 

hurst,  1  Tyr.  348, 1  Cr.  &  Jer.  403  ;  Heath  accords).     Along    with   the   authority  of 

V.  Chilton,   12  M.   &  W.  632;  Kane  v.  this  case  seems  to  fall  also  the  doetrine  on 

Paul,  14  Pet.  33.   •  -which  it  was  founded,  and  of  which  so 

(o)  Aslihy   V.   Ashby,    7  B.    &   Cress,  much  is  made  in  the  hooks,  (see  Williams 

444. — But  he  is  only  liable  personalli/  in  on  Executors,  1st  ed.  519;  1  Lomax  on 

an  action  for  money  lent  to  him  as  execu-  Executors,  292,)  that  an  action  can  in  no 

tor,  or  had  and  received  by  liim  as  execu-  case  be  maintained  in  the  name  of  the 

tor.     Rose  v.  Bowler,   1   H.  Black.  108;  executor,  unless  an  injury  to  the  personal 

Powell  V.   Graham,  7  Taunt.   586 ;  Jen-  estate  appears.    In  England,  the  Court  of 

nings  V.  Newman,  4  T.  R.  347  ;  and  see  Exchequer  have  gone  as  far  as  they  can 

ob.servations   of  the  judges   in   Ashljy  v.  without  quite  overthrowing    Kingdon   v. 

Ashby,  7  B.  &  Cress.  444  ;  Miles  v.  Dui-n-  Nottle.     Sec  the  o])inion  of  Lord  Abinger 

ford,  13  E.  L.  &  E.  120.  in  Raymond  v.  Fitch,  2  C.  M.  &  R.  596, 

(p)  Lord  AbitK/er,  C.  B.,  Raymond  v.  600,  and  the  still  later  case  of  Ricketts  v. 

Fitch,  2   Cr.  M.'&  R.  588,  599,   5  Tyr.  Weaver,  12  M.  &  AV.  718,  where  Parke, 

985 ;  Lucy  v.  Levington,   2  Lev.   26,    1  B.,  said,  "  The  question  therefore  is  re- 

'Ventris,  175;  Bacon's  Abr.  £'xec«tors  a«(Z  duccd  to  this,  whetlier  an  executor  can 

Administraiors,  N.  sue  for  the  breach  of  a  covenant  to  repair 

(r/)  Com.  Dig.  Covenant,  B.  1,  Adminis-  in  the  lifetime  of  the  lessor,  who  was  ten- 

tration,  B.  13  ;  Morley  v.  Polhill,  2  Ven-  ant    for    life,    without    averring    special 

[116] 


en.  YIII.]  OF   EXECUTORS   AND    ADMDnSTRATORS. 


»111 


try.  (.v)  In  general,  every  right  ex  contractu^  which  the  deceased 
possessed  at  the  time  of  his  death,  passes  to  his  executor  or  ad- 
ministrator ;  {/)  and  so  strong  is  this  rule,  that  it  prevails  against 
special  words  of  limitation  in  the  contract  itself,  (w)  But  con- 
tracts may  be  extinguished  and  absolutely  determined  by  the 
death  of  the  party  with  whom  they  are  made,  (r)  If  money  be 
payable  by  a  bond  to  such  person  as  the  obligee  may  appoint 
by  will,  and  the  testator  makes  no  appointment  by  his  will,  the 
debt  dies,  as  the  executor  is  not  considered  his  appointee  for 
that  purpose,  [lo)  Nor  could  an  administrator,  where  there  was 
no  will,  claim  the  money. 

The  law  raises  no  implied  promise  to  the  personal  represent- 
ative, in  respect  of  a  promissory  note  held  by  the  deceased,  [x) 

*\Vhere  the  contract  with  the  deceased  is  of  an  executory 
nature,  and  the  personal  representative  can  fairly  and  sufficiently 


damage.  On  that  point  Raymond  v.  Fitch, 
in  which  all  the  cases  were  considered,  is 
an  authority  directly  in  point,  and  ou;,dit 
not  to  be  shaken.  The  result  of  that  case 
is,  that  unless  it  he  a  covenant  in  which 
the  heir  aluni'  can  sue  (according-  to  Kiny- 
don  r.  Nottle  and  Kin<;  v.  Jones)  for  a 
breach  of  the  covenant  in  the  lifetime  of 
the  lessor,  the  executor  can  sue,  unless  it 
be  a  mere  personal  contract,  in  which  the 
rule  applies  that  actio  pfrsonalis  moritttr 
aim  jH-rsom't.  The  l)reach  of  covenant 
is  the  daniiigc ;  if  the  executor  be  not 
the  projfcr  person  to  sue,  the  action  can- 
not be  brought  by  any  one."  In  this 
country,  wheix'  the  courts  are  free  from 
the  shackles  which  tlie  antiiority  of  King- 
don  c.  Nottle  and  kindred  cases  imposes, 
it  is  reasonable  to  liclievc  that  the  later 
doctrine  (whicii  is  also  the  older  iloctrine,) 
as  to  actions  by  executors,  will  be  canied 
to  its  full  extent.  See  Clark  v.  Swift,  3 
Mete.  .lOO. 

(s)  (ireenl)V  r.  Wilcocks,  2  Johns.  1  ; 
Mitchell  V.  Warner,  .')  Conn.  R.  497 ; 
Beddoe's  Executor  r.  Wadsworth,  21 
Wend.  120  ;  Clark  v.  Swift,  .3  Mete.  390  ; 
Hacker  r.  Storer,  8  Greenl.  228,  232;  4 
Kent,  Comm.  472. — The  case  of  King- 
don  V.  Nottle  has,  however,  hern  sul>- 
stantiallv  followed  in  Ohio  and  Indiana. 
Foote  r."P>unut,  10  Ohio  R.  317  ;  Martin 
V.  Raker,  .j  RIackford,  232. 

(/)  Comyns's  Digest,  Administration,  B. 
13;  Racon's  Abridgment,  JCm'ittor.s  and 
Administrators,  N. ;   Morley  v.  Rolhill,  2 


Ventris,  56,  3  Salk.  109  ;  Smith  v.  Si- 
mons, Combcrl)ach,  64  ;  Lucy  i\  Leving- 
ton,  I  Ventris,  1 7C,  2  Lev.  26  ;  Raymond  r. 
Fitch,  2  Cr.  IM.  &  R.  .588  ;  Ricketts  v. 
Weaver,  12  M.  &  "\V.  718;  Carr  v.  Rob- 
erts, .")  B.  &  Ad.  84,  per  Parke,  J. 

((/)  Devon  v.  Pawlett,  11  Vin.  Abr. 
133,  pi.  27.  Somewhat  analogous  to  this 
is  the  point  stated  in  Leonard  Lovies' 
case,  10  Co.  R.  87,  b,  tiiat  a  chattel  inter- 
est in  land  cannot  Ite  entailed. 

(;•)  For  exami)le,  tlie  right  to  recover 
for  tlie  breach  of  a  promise  to  many  does 
not  ]):iss  to  the  executor.  Chamberlain  r. 
Williamson,  2  M.  &  Sel.  408 ;  Stebbins  v. 
Palmer,  1  Pick.  71.  And  so  in  other 
cases  where  the  injury  is  personal,  though 
accompanying  a  breach  of  contract.  Parle, 
R.,  Reckliam  r.  Drake,  8  M.  &  W.  8.54  ; 
Lord  Kllmhjruiiqli,  C.  J.,  Chami)crlain  v. 
Williamson,  2  >I.  &  Sel.  415,  416.  Cook 
r.  Newman,  8  IIow.  Pr.  Rep.  523.  But 
see  Knights  v.  Quarles,  2  B.  &  B.  104. 

(«•)  Pcii-^e  V.  Mead,  Ilol).  9.  And  the 
reason  given  is  that  the  payee  in  that  case 
is  evidently  to  take  for  his  own  iK<e,  for 
the  word  pay  "  canyeth  property  with 
it ; "  whereas  the  executor,  when  he  re- 
covers as  a.ssignee  in  law  of  the  testator, 
takes  for  the  use  of  the  testator. 

(.r)  Therefore  the  executor  in  bringing 
an  action  upon  such  note,  must  declare 
u|)on  the  jiromise  to  the  testator  ;  unless 
an  ex])rcss  promi.<e  to  the  executor  can  lie 
shown.    Timmis  v.  Piatt,  2  M.  v<:  W.  720. 

[117] 


112'' 


THE   LAW    OF   CONTRACTS. 


[book  I. 


execute  all  that  the  deceased  could  have  done,  he  may  do  so, 
and  enforce  the  contract.  (//)  But  where  an  executory  contract 
is  of  a  strictly  personal  nature  —  as,  for  example,  with  an  author 
for  a  specified  work,  the  death  of  the  writer  before  his  book  is 
completed,  absolutely  determines  the  contract,  unless  what 
remains  to  be  done  —  as,  for  example,  the  preparing  of  an  Index, 
or  Table  of  Contents,  &c.,  can  certainly  be  done  as  well  and  to 
the  same  purpose  by  another.  (;::) 

If  executors  or  administrators  pay  away  money  of  the  de- 
ceased by  mistake,  or  enter  into  contracts  for  carrying  on  his 
business  for  the  benefit  of  his  personal  estate,  and  to  wind  up 
his  affairs,  they  may  sue  either  in  their  individual  or  their  repre- 
sentative capacities-;  (a)  but  they  should  sue  in  the  latter  capac- 
ity, in  order  to  avoid  a  set-off  against  them  of  their  individual 
debts,  (b)  The  title  of  an  administrator  does  not  exist  until 
the  grant  of  administration,  and  then  reverts  back  to  the  death 
of  the  deceased  ;  but  only  in  order  to  protect  the  estate,  and  not 
for  any  other  purpose,  (c)  And  if  an  agent  sells  goods  of  the 
deceased,  after  his  death,  and  in  ignorance  of  his  decease,  the 
administrator  may  adopt  the  contract  and  sue  upon  it.  (d) 

On  the  death  of  one  of  several  executors,  either  before  or 
after  probate,  the  entire  right  of  representation  survives  to  the 
*others.  (e)     But  if  an  administrator  dies,  or  a  sole  executor 


{ij)  Marshall  v.  Broadhurst,  1  Tyr.  348, 
1  Cromp.  &  Jer.  403.  See  Werner  r. 
Humphreys,  3  Scott,  N.  R.  226.  —  E  con- 
verso,  the  personal  representative  is  bound 
to  complete  such  a  contract,  and,  if  he  does 
not,  may  be  made  to  pay  damages  out  of 
the  assets.  Wentworth  v.  Cock,  10  Ad. 
&  Ell.  42  ;  Siboni  v.  Kirkman,  1  M.  &  W. 
418,  423.  —  Where  several  persons  jointly 
contract  for  a  chattel,  to  be  made  or  pro- 
cured I'or  the  common  benefit  of  all,  and 
the  executors  of  any  party  dying  are,  by 
agreement,  to  stand  in  the  place  of  such 
party  dying,  although  tlie  legal  remedy  of 
the  party  employed  would  be  solely  against 
the  survivors,  yet  the  law  will  imply  a  con- 
tract on  the  part  of  the  deceased  contractor, 
that  his  executors  shall  pay  his  proportion 
of  the  price  uf  the  article  to  be  furnished. 
Prior  V.  llembrow,  8  M.  &  W.  873,  889. 

(;::)  Lord  Ltjndhurat,  C.  B.,  and  JSayhy, 
B.,  ]\Iarshall  v.  Broadhurst,  1  Tyr.  349. 
Sec  Silioni  v.  Kirkman,  1  M.  &  ^V".  423. 

(«)  Clark  V.  Houghani,  2  B.  &  Cress. 
[118] 


149;  Aspinall  v.  Wake,  10  Bing.  51; 
Webster  v.  Spencer,  3  B.  &  Aid.  360 ; 
Ord  V.  Fenwick,  3  East,  104;  Merritt  v. 
Seaman,  2  Selden,  168. 

(6)  Per  B(ti/lei/,  Ilolroyd,  and  Best,  JJ., 
Clark  V  Ilougham,  2  B.  &  Cress,  155, 
156,  157. 

(c)  Morgan  v.  Thomas,  18  Eng.  Law  & 
Eq.  526;  Foster  v.  Bates,  12  M.  &  W. 
22;  Lawrence  v.  Wright,  23  Pick.  128; 
llattoon  I'.  Ovcracker,  8  Johns.  126  ;  Win- 
chester V.  Union  Bank,  2  G.  &  Johns.  79, 
80;  Welchman  r.  Sturgis,  13  Q.  B.  552; 
Bell  V.  Speight,  11  Hump.  451. 

(d)  Foster  v.  Bates,  12  M.  &  W.  226. 

(e)  Flanders  r.  Clark,  3  Atk.  509.  So 
in  the  case  of  the  death  of  one  of  two  ad- 
minislrators,  the  administration  survives  to 
the  other.  Hudson  v.  Hudson,  Cas. 
Temp.  Talb.  127.  —  That  joint  executors 
are  one  person  in  law,  Shaw  v.  Berry,  35 
Maine,  279.  But  see  Smith  v.  Whiting,  9 
Mass.  334. 


CH.  VIII.]  OF   EXECUTORS   AXD   ADMINISTRATORS. 


-112 


dies  intestate,  no  interest  and  no  right  of  representation  is  trans- 
mitted to  his  personal  representative.  (/) 

An  executor  de  son  tort  is  liable  not  only  to  an  action  by  the 
rightful  execut^or  or  administrator,  but  may  be  sued  by  a  creditor 
of  the  deceased,  (g-)  And  it  is  held  in  England  that  an  executor 
de  son  tort  of  a  rightful  executor  is  liable  in  the  same  manner 
as  a  rightful  executor  of  the  original  testator,  for  his  debts,  (g-g-) 
But  the  rightful  executor  or  administrator  cannot  be  prejudiced 
by  an  act  or  contract  of  an  executor  de  son  tort,  (h)  And  it 
would  seem,  that  if  an  executor  de  son  tort  be  afterwards  made 
administrator,  he  is  not  bound  by  a  contract  made  by  himself 
as  executor  before  the  grant  of  administration,  (i) 


(f)  Com.  Dij!f.  Administrator,  B.  6  ; 
Tincrrev  v.  Brown,  1  Bos.  &  Pul.  310. 

(g)  Curtis  v.  Vernon,  .3  T.  K.  587. 
(7y)  Mcyrick  v.  Anderson,    14   Q.  B. 

719. 

(A)  Bucklev  v.  Barber,  15  Jur.  63, 
(Exch.),  1  E.  L.  &Eq.  .506  ;  Mountford  v. 
Gibson,  4  East,  441  ;  Dickenson  v.  Naule, 
1  Nev.  &  Man.  721  ;  where  A  having 
proved  a  will,  in  which  she  supposed  her- 
self to  be  appointed  executrix,  employed 
the  ]>huntitt',  an  auctioneer,  to  sell  the 
goods  of  tlie  testator  ;  and  they  were  sold 
to  the  defendant,  who,  as  an  inducement 
to  the  plaintitf  to  let  him  remove  the  goods 
without  payment,  expressly  promised  to 
pay  the  plaintiff  as  soon  as  the  bill  was 


made  out.  Probate  was  afterwards  granted 
to  B,  the  real  executrix,  who  gave  notice 
to  the  defendant  to  pay  the  price  to  her. 
Held,  that  the  plaintiff  could  not  maintain 
an  action  against  the  defendant  for  the 
price.  —  But  where  the  act  of  the  executor 
de  son  tort  was  done  in  the  due  course  of 
administration,  and  is  one  which  the  right- 
ful executor  would  have  been  compellable 
to  do,  such  act  sliall  stand  good.  Gravs- 
brook  V.  Fox,  1  Plowd.  282  ;  Thompson 
V.  Hardinsr,  20  Eng.  Law  &  Eq.  145. 
((■)  'Doev.  Glenn,  1  Ad.  &  El.  49,  S.  C. 

3  Nev.  &  Man.  837 ;  Wilson  v.  Hudson, 

4  Ilarring.  169.  Bat  ^oc  contra ,  Walworth, 
C,  Vroom  v.  Van  Homo,  10  Pait^e,  558  • 
Walker  v.  May,  2  Hill,  Ch.  (S.  C.)  23. 

[119] 


113  THE  LAW  OF  CONTRACTS.  [BOOK  I. 


CHAPTER  IX. 

GUARDIANS. 

Sect.  I. —  Of  the  kinds  of  Guardians. 

Guardianship  at  common  law  has  fallen  into  comparative 
disuse  in  this  country,  although  many  of  the  principles  which 
determined  the  rights  and  duties  of  that  relation  are  adopted, 
with  various  qualifications,  in  the  guardianships  by  testamentary 
appointment  of  the  father,  or  by  the  appointment  of  courts  of 
probate  or  chancery,  which  prevail  with  us.  We  have  also  by 
statute  provisions,  guardians  of  the  insane,  and  of  spendthrifts. 
All  of  these  rest  upon  the  general  principle,  that  it  is  the  duty 
of  society  to  provide  adequate  care  and  protection  for  the  person 
and  property  of  those  who  are  wholly  unable  to  take  care  of 
themselves. 

So  far  as  relates  to  contracts  to  which  guardians  are  parties, 
we  can  do  little  more  than  refer  to  the  statutes  of  the  several 
States,  in  which  the  obligations  and  duties  of  guardians,  their 
powers,  and  the  manner  in  which  their  powers  may  be  exer- 
cised, are  set  forth,  usually  with  much  minuteness  and  pre- 
cision. 

One  principle,  however,  should  be  stated ;  which  is,  that 
guardians  of  all  descriptions  are  treated  by  courts  as  trustees  ; 
and,  in  almost  all  cases,  they  are  required  to  give  security  for 
the  faithful  discharge  of  their  duty,  unless  the  guardian  be  ap- 
pointed by  will,  and  the  testator  has  exercised  the  power  given 
him  by  statute,  of  requiring  that  the  guardian  shall  not  be  called 
upon  to  give  bonds.  But  even  in  this  case,  such  testamentary 
provision  is  wholly  personal ;  and  if  the  individual  dies,  refuses 
the  appointment,  or  resigns  it,  or  is  removed  from  it,  and  a  sub- 
stitute is  appointed  by  court,  this  substitute  must  give  bonds. 
[120] 


CH.  IX.] 


GUARDIANS.- 


ii4-ni5 


SECTION    II. 

OF   THE   DUTY   AXD    POWER   OF   A   GUARDIAN. 

The  guardian  is  held  in  this  country  to  have  only  a  naked 
authority,  not  coupled  with  an  interest,  (j)  His  possession  of 
the  property  of  his  ward  is  not  such  as  gives  him  a  personal  in- 
terest, being  only  for  the  purpose  of  agency.  But,  for  the  bene- 
fit of  his  ward,  he  has  a  very  general  power  over  it.  He  manages 
and  disposes  of  the  personal  property  at  his  own  discretion,  (k) 
although  it  is  safer  for  him  to  obtain  the  authority  of  the  court 
for  any  important  measure  ;  he  may  lease  the  real  estate,  if 
appointed  by  will  or  by  the  court,  but  the  guardian  by  nature 
cannot ;  (/)  he  cannot  however  sell  it  without  leave  of  the  proper 
court.  Nor  should  he,  in  general,  convert  the  personal  estate 
into  real,  without  such  leave.  (?>?)    *And  where  a  court  of  equity 


( /)  Granbv  v.  Amherst,  7  Mass.  1,  6. 

(X)  Field  'v.  SchietVelin,  7  Johns.  Ch. 
1.54.  "  I  apprehend  that  no  doubt  can  be 
entertained  as  to  tlic  competency  of  the 
guardian's  power  over  the  disposition  of 
tlie  personal  estate,  including  the  choses 
in  action,  as  between  him  and  the  l>ona 
Jide  purchaser.  Tiie  guardian  in  socage 
of  the  real  estate  may  lease  it  in  his  own 
name,  and  dispose  of  it  during  the  guardi- 
anship, (and  the  chancery  guardian  has 
equal  authority,)  though  he  cannot  convey 
it  absolutely  without  tlie  special  authority 
of  this  court,  because  the  nature  of  the 
trust  docs  not  require  it.''  Kmt,  C.  This 
case  dccifles  that  the  purchaser  of  the 
ward's  personal  estate  is  not  responsible 
for  the  faithful  apjdication  of  the  purcha.se- 
money  by  the  guanlian,  unless  he  knew  or 
had  sufficient  information  at  the  time  that 
the  guardian  contemplated  a  lireach  of 
trust,  and  intended  to  misa|)ply  the  money ; 
or  was  in  fact  by  the  very  transaction  ap- 
plying it  to  his  own  private  purpose.  — 
Ellis  V.  Essex  Merrimack  Bri(lge,  2  Pick. 
243.  '  The  guardian  of  a  mm  compos  mentis 
can  sell  her  personal  estate  at  his  discre- 
tion, and  her  real  estate  with  license  from 
the  court.  "  It  is  true  the  guardian  ought 
not  to  sell  the  personal  estate,  unless  the 
proceeds  are  wanted  for  the  due  execution 

VOL.  I.  II 


of  his  trust,  or  unless  he  can  by  the  sale 
produce  some  advantage  to  the  estate,  but 
having  the  power  without  obtaining  any 
spei-ial  license  or  authority,  a  title  under 
him  acquired  lx>tul  Jidp  by  the  purchaser 
will  be  good,  for  he  cannot  know  wlicther 
the  power  lias  been  executed  with  dis- 
cretion or  not."  Purkcr,  C.  J.  —  Dorsev 
r.  Gilbert,  11  Gill  &  Johns.  87.  The 
Court  of  Chancery  may  authorize  a  sale 
of  the  ward's  real  estate.  —  Also,  in  re 
Salisburv,  3  Johns.  Ch.  347  ;  Hedges  v. 
Kiker,  .'j"  id.  163;  Mills  r.  Dennis,  3  id. 
367.  "The  court  may  change  tlic  estate 
of  infants  from  real  into  personal,  and 
from  j>ersonal  into  real,  whenever  it  deems 
such  a  i)ro(X'e(ling  most  beneri<Mal  to  the 
infant.  The  proper  inquir}*  in  such  cases 
■will  be,  whether  a  sale  of  the  whole,  or 
only  of  a  part,  and  what  part  of  the  prem- 
ises will  be  most  beneficial."     Knit,  C. 

(/)  May  V.  Caldcr,  2  Mass.  56.  A  lease 
of  an  infant's  land  by  his  father  as  natural 
guardian,  is  void. 

(hi)  The  cases  cited  (3  Johns.  Ch.  348, 
370,  5  id.  163,)  affirm  the  power  of  a  court 
to  order  the  minor's  real  estate  to  be  con- 
verted into  personal,  or  his  jiersonal  into 
real,  but.do  not  exj)ressly  deny  the  guar- 
dian's authority  to  do  the  latter.  See 
supra,  note  (k). 

[121] 


115- 


THE   LAW    OF   CONTRACTS. 


[book  I. 


authorizes  a  conversion  of  real  estate  into. personal,  or  vice  versa, 
it  will,  if  justice  requires  it,  provide  that  the  acquired  property 
retains  the  character  and  legal  incidents  of  the  original  fund.(w) 

As  trustee,  a  guardian  is  held  to  a  strictly  honest  discharge 
of  his  duty,  and  cannot  act  in  relation  to  the  subject  of  his  trust 
for  his  own  personal  benefit,  in  any  contract  whatever.  And 
if  a  benefit  arises  thereby,  as  in  the  settlement  of  ^  debt  due 
from  the  w^ard,  this  benefit  belongs  wholly  to  the  ward,  (o) 
He  must  not  only  neither  make  nor  suffer  any  waste  of  the 
inheritance,  but  is  held  very  strictly  to  a  careful  management  of 
all  personal  property.  (7^)  He  is  responsible  not  only  for  any 
misuse  of  the  ward's  money  or  stock,  but  for  letting  it  lie  idle  ; 
and  if  he  does  so  without  sufficient  cause,  he  must  allow  the 
ward  interest  or  compound  interest  in  his  account.  This  sub- 
ject is  more  fully  presented  in  treating  of  the  responsibility  of 
Trustees,  {q) 

And  to  secure  the  proper  execution  of  his  trust,  he  is  not 
only  liable  to  an  action  by  the  ward,  after  the  guardianship 
terminates,  but  during  its  pendency  the  ward  may  call  him  to 
account  by  his  next  friend,  or  by  a  guardian  ad  litem.     And 


(n)  Foster  v.  Hilliard,  1  Story,  88  ; 
Wheldale  v.  Partridge,  5  Ves.  Jr.  396 ; 
Craig  V.  Leslie,  3  Wheat.  563,  577  ;  Peter 
V.  Beverly,  10  Pet.  532  ;  Hawley  v.  James, 

5  Paige,  318,  489  ;  Kane  v.  Gott,  24  Wend. 
660 ;  Reading  v.  Blackwell,  1  Baldwiji, 
166.  The  above  cases  illusti'ate  the  gen- 
eral principles  of  equitable  conversion, 
without  being  applied  exclusively  to  con- 
versions by  a  guardian  with  license  from 
court. 

(o)  Green  v.  Winter,  1  Johns.  Ch. 
26  ;  Church  v.  The  Marine  Insurance  Co. 
1  Mason,  345  ;  Holridge  v.  Gillespie,  2 
Johns.  Ch.  30 ;  Davoue  v.  Fanning,  2 
Johns.  Ch.  252;  White  v.  Parker,  8 
Barb.  48 ;  Ringgold  v.   Ringgold,  1   H. 

6  G.  11;  Rogers  v.  Rogers,  1  Hopkins, 
Ch.  515  ;  Lovell  v.  Briggs,  2  N.  H.  218  ; 
Sparhawk  r.  Allen,  1  JToster  9.  —  The 
guardian  is  not  entitled  to  compensation 
for  services  rendered  before  his  appoint- 
ment. Clowes  V.  Van  Antwerp,  4  Barb. 
S.  C.  416. 

(/;)  Dietterich  v.  Heft,  5  Barr,  87.  If 
he  lends  money  on  the  mere  personal  se- 

[122] 


curity  of  one  whose  circumstances  arc 
equivocal,  he  is  responsible  for  the  money 
lent.  —  Stem's  Appeal,  5  Whart.  472. 
"  Whenever  the  guardian  has  the  fund 
and  disposes  of  it  to  another,  he  must  do 
it  with  strict  and  proper  caution,  and  is 
seldom  safe  unless  he  takes  security." 
Sergeant,  J.,  Konigraacher  v.  Kimmel,  1 
Penn.  207  ;  Pim  v.  Downing,  11  S.  &  R. 
66;  Smith  v.  Smith,  4  Johns.  Ch.  281. 
—  But  he  is  bound  in  general  only  to  the 
exercise  of  common  jjrudence  and  skill. 
Johnson's  Appeal,  12  S.  &  R.  317  ;  Kon- 
igmacher  v.  Kimmel,  1  Penn.  207.  He  is 
liable  for  any  negligence.  Glover  v.  Glo- 
ver, 1  McMullan,  Eq.  153.  —  Stanley's 
Appeal,  8  Barr,  431 .  Although  expressly 
authorized  to  invest  the  ward's  money  iu 
bank-stock,  he  is  personally  liable  if  he 
invests  it  in  his  own  name.  —  Worrell's 
Appeal,  9  BaiT,  508.  He  was  held  liable 
for  the  ward's  money  invested  in  the 
stock  of  a  navigation  company,  in  good 
credit  at  the  time,  and  paying  large  divi- 
dends for  a  long  time  afterwards. 
(q)  See  ante,  p.  103,*  note  (b). 


CH.  IX.]  GUARDIANS.  116 

the  courts  have  gone  so  far  as  to  set  aside  transactions  which 
took  place  soon  after  the  ward  came  of  age,  and  which  were 
beneficial  only  to  the  former  guardian,  on  the  presumption  that 
undue  influence  was  used,  and  on  the  ground  of  public  utility 
and  policy,  (r) 

A  guardian  cannot,  by  his  own  contract,  bind  the  person  or 
estate  of  his  ward ;  (s)  but  if  he  promise  on  a  sufficient  consid- 
eration to  pay  the  debt  of  his  ward,  he  is  personally  bound  by 
his  promise,  although  he  expressly  promises  as  guardian,  (t) 
And  it  is  a  sufficient  consideration  if  such  promise  discharge 
the  debt  of  the  ward.  And  a  guardian  who  thus  discharges 
the  debt  of  his  ward  may  lawfully  indemnify  himself  out  of  the 
ward's  estate,  or  if  he  be  discharged  from  his  guardianship,  he 
may  have  an  action  against  the  ward  for  money  paid  for  his 
use.  (?/)  An  action  will  not  lie  against  a  guardian  on  a  con- 
tract made  by  the  ward,  but  must  be  brought  against  the  ward, 
and  may  be  defended  by  the  guardian,  (v) 

(r)  Arrlier  v.  Hudson,  7  Beavan,  551 ;  (h)  Thacher    r.    Dinsmore,    5    Mass. 

Gale  r.  Wells,  12  Barb.  84.  299  ;  Forster  v.  Fuller,  6  Mass.  58. 

(s)  Thacher  f.  Dinsmore,  5  Mass.  300;  (r)  Brown    v.    Chase,   4    Mass.    4.36; 

Jones  V.  Brewer,  1  Pick.  314.  Thacher  r.  Dinsmore,  5  Mass.  299;  Ex 

(()  Forster  v.  Fuller,  6  Mass.  58.  jxirte  Leighton,  14  Mass.  207. 

[123] 


117 


THE    LAW   OF   CONTRACTS. 


[book  I. 


CHAPTER    X. 


CORPORATIONS. 


A  CORPORATION  aggregate  is,  in  law,  a  person  ;  (w)  and  it  was 
an  established  principle  of  the  common  law,  that  corporations 
aggregate  could  act  only  under  their  common  seal;  (x)  but  to 
this  principle  there  were  always  many  exceptions.  These  ex- 
ceptions arose  at  first  from  necessity,  and  were  limited  by  ne- 
cessity. As  where  cattle  were  to  be  distrained  damage  feasant, 
and  they  might  escape  before  the  seal  could  be  affixed.  (?/)  But 
it  was  held  that  the  appointment  of  a  bailiff  to  seize  for  the 
use  of  a  corporation,  goods  forfeited  to  the  corporation,  must 
be  by  deed,  (c)  A  corporation  is  liable  for  the  tortious  acts  of 
its  agent,  though  he  were  not  appointed  under  seal,  (a)     The 


(iv)  Sec  the  great  case  of  the  Louisville 
and  Charleston  R.  R.  Co.  v.  Letson,  2 
How.  497,  where  it  was  decided  by  the 
Supreme  Court  that  a  corporation  created 
by  a  State,  and  doing  business  within  the 
territory  of  such  State,  though  it  have 
meml)ers  who  are  citizens  of  other  States, 
is  to  be  treated  in  the  United  States 
courts  as  a  citizen  of  that  State.  — By  an 
act  incorporating  a  railway  company,  no 
action  was  to  be  brought  against  any  per- 
son for  any  thing  done  in  pursuance  of 
the  act,  witiiout  twenty  days'  notice  given 
to  the  intended  defendant :  Held,  that  the 
word  person  included  the  company,  and 
that  they  were  entitled  to  notice  upon  be- 
ing sueii  for  obstructing  a  way  in  carrying 
the  act  into  eft'ect.  Boyd  v.  Croydon  R. 
'Co.  4  Bing.  N.  C.  669. 

(x)  1  Blackstone's  Comra.  475.  —  Yet 
a  corporation  might  do  an  act  upon  record 
without  seal.  The  Mayor  of  Thetford's 
case,  1  Salk.  192. 

{tj)  Manby  v.  Long,  3  Lev.  107  ;  Bro. 
Corporations,  pi.  2,  47  ;  Dean  and  Chap- 
ter of  Windsor  v.  Cover,  2  Saund.  30.5, 
Plow.  91.  And  so  it  seems  the  appoint- 
ment of  a  bailiff  to  distrain  for  rent  did 

[124] 


not  need  to  be  by  deed.  Cary  v.  Mat- 
thews, 1  Salk.  191  ;  Taunton,  J.,  Smith  v. 
Birmingham  Gas  Co.  1  Ad.  &  El.  530. 
—  But  a  corporation  cannot,  except  by 
their  seal,  empower  one  to  enter  on  their 
behalf  for  condition  broken ;  and  this 
though  the  estate  be  only  for  years. 
Dumper  v.  Symms,  1  Rol.  Abr.  Corpora- 
tions (K). 

[z)  Horn  v.  Ivy,  1  Vent.  47^  1  Mod. 
18,  2  Keb.  567. 

(a)  Eastern  Counties  Railway  Co.  v. 
Broom,  2  E.  L.  &  E.  406;  Watson  v. 
Bennett,  12  Barb.  196;  Burton  v.  Phila- 
delphia, &c.  Railroad,  4  Hamng.  252 ; 
Johnson  v.  Municipality,  5  Louis.  Ann. 
100  ;  Goodspeed  v.  East  Haddam  Bank, 
22  Conn.  530.  Especially  if  the  act  done 
was  an  ordinary  service,  such  as  would 
not  be  held  under  other  circumstances 
to  require  an  authority  under  seal,  Smith 
V.  Birmingham  Gas  Co.  1  A.  &  E.  526, 
3  N.  &  Mann.  771  ;  Yarborough  v.  The 
Bank  of  England,  16  East,  6.  — And  a 
corporation,  like  any  other  principal,  is 
liable  for  acts  of  its  agent  incidental  to 
an  authority  duly  delegated.  Kennedy  v. 
Baltimore  Ins.  Co.  3  11.  &  Johns.  367. 


en. 


X.] 


CORPORATIONS. 


*118 


exception  was  afterwards  extended  to  all  matters  of  daily  or 
frequent  exigency  or  convenience,  and  of  no  especial  impor- 
tance, (b)  In  this  country,  the  old  rule  *has  almost  if  not 
entirely  disappeared,  (c)  But  in  England  it  seems  to  remain 
in  some  force,  (d)  A  contract  of  a  corporation  as  of  an  indi- 
vidual, may  be  implied  from  the  acts  of  the  corporation,  or  of 
their  authorized  agents,  (e)  In  general,  if  a  person  not  duly 
authorized  make  a  contract  on  behalf  of  a  corporation,  and  the 
corporation  take  and  hold  the  benefit  derived  from  such 
contract,  it  is  estopped  from  denying  the  authority  of  the 
agent.  (/) 

The  question  of  execution  appears  to  stand  upon  somewhat 
different  ground  from  that  of  authority  ;  for  while  a  corpora- 
tion is  generally  estopped  from  denying  that  a  contract  or  an 
instrument  was  made  by  its  authority,  if  it  receive  and  hold 
the  beneficial  result  of  the  contract  or  the  instrument,  as  the 
price  for  property  sold,  or  the  like,  it  may,  or  its  creditors  may, 
deny  that  the  instrument  was  legally  executed,  even  if  the  au- 


(6)  Gibson  r.  East  India  Co.  5  Bing. 
N.  C.  2G2,  270;  Lord  Denimin,  C.  J., 
Church  I'.  Imperiiil  Gas  Co.  6  Ad.  &  El. 
846.     See  Bro.  VorponUioux,  pi.  49. 

{(■)  The  Bank  of  Cohiinlna  ?'.  Patter- 
son, 7  Cranch,  299;  Bank  of  The  United 
States  V.  ])anhrid;,'e,  12  Wiieat.  64; 
Danfortii  v.  Sehoharie  Tiinipike  t?o.,  12 
Johns.  227  ;  Commercial  Bank  of  Buffalo 
r.  Kortright,  22  Wend.  348 ;  American 
In.s.  Co.  V.  Oakley,  9  Paijre,  496 ; 
Parker,  C.  J.,  Fourth  School  i)istrict 
in  Kumford  v.  Wood,  l.T  Miu^s.  199; 
Proprietors  of  Canal  15rid;,'C  ;'.  Gordon, 
1  Pick.  297  ;  Chestnut  Hill  Turnpike  v. 
Rutter,  4  S.  &  Uawie,  16;  Union  Bank 
of  Maryland  v.  Rid-^ely,  1  II.  &  Gill, 
324  ;  Lcfrrand  v.  Hampden  Sydney  Col- 
lege, 5  Munf  324  ;  Elvsville  M"anf.  Co.  v. 
Okisko,  .')  Maryl.  l.")2" 

(</)  Rolf'i-,  B.,  Mayor  of  Ludlow  r. 
Charlton,"  6  M.  &  VV.  823  ;  Gibson  i'. 
East  India  Company,  5  Bing.  N.  C.  275; 
Lord  DmiiHtn,  C.  J.,  Church  r.  Imperial 
Ga.s  Co.  6  Ad.  &  El.  861  ;  Williams  v. 
Chester  &  Holyhead  Railway,  5  E.  L.  & 
E.  497  ;  Diggle  v.  London  &  lUackwell 
Railway,  .')  Exch.  442;  Clark  r.  (Juar- 
dians  of  Cuekfield  Union,  11  K.  L.  &  E. 
442.  But  see  Denton  i».  East  Anglian 
Railway  Co.  3  Carr.  &  Kir.  17  ;  Ilendcr- 

11* 


son  V.  Australian  Roval  Mail  Steam  Navi- 
gation Co.  32  E.  L.  &  E.  167. 

(e)  Smitii  V.  Proprietors,  &c.,  8  Pick. 
178;  Kennedy  v.  Baltimore  Ins.  Co.,  3 
II.  &  Johns.  367  ;  Tnmdy  v.  Farrar,  32 
Maine,  22.") ;  Ross  v.  City  of  Madison,  1 
Cart.  (Ind.),  281  ;  Seagraves  v.  Citv  of 
Alton,  13  111.  366.  —  Beyerlev  i'.  Lin- 
coln Gas  Co.  6  Ad.  &  El.  829  ;  where 
the  judgment  of  the  court  of  Queen's 
Bench  was  delivered  by  Patteson,  J.,  in 
an  elaborate  opinion.  And  in  Church  v. 
Imperial  Gas  Company,  6  Ad.  &  El. 
846,  the  same  court  held  that  a  corpora- 
tion, created  for  tiie  purpose  of  sup])iying 
gas,  might  maintain  assumpsit  for  the 
breach  of  a'  contract  by  the  defendant  to 
accept  gas  from  year  to  year,  at  a  certain 
price  per  aiuuim,  the  consideration  being 
alleged  to  be  the  promise  of  the  cor])ora- 
tion  to  furnish  it  at  tiiat  ])rice  —  such 
promise  by  the  corporation,  though  not 
under  seal,  being  valid,  and  a  good  con- 
sideration. 

{/)  Episcopal  Charitable  Society  v. 
Epi.scopal  Church,  1  IV-k.  372 ;  Ilay- 
ward  r.  The  Pilgrim  Society,  21  I'ick. 
270;  Randall  r.  Van  Vechten,  19  Johns. 
60.  And  see  Foster  r.  Essex.  Bank,  17 
Mass.  479. 

[125] 


119^ 


THE   LAW   OF   CONTRACTS. 


[book  I. 


thority  were  certainly  possessed.  Thus,  if  a  conveyance  pur- 
porting to  be  the  conveyance  of  a  corporation,  made  by  one 
authorized  to  make  it  for  them,  be  in  fact  executed  by  the  at- 
torney as  his  own  deed,  it  is  not  the  deed  of  the  corporation, 
although  it  was  intended  to  be  so,  and  the  attorney  had  full 
authority  to  make  it  so.  And  if  the  deed  be  written  through- 
out as  the  deed  of  the  corporation,  and  the  attorney  when  exe- 
cuting it  declares  that  he  executes  it  on  *behalf  of  the  company, 
but  says,  "  in  witness  whereof  I  set  my  hand  and  seal,^^  this  is 
his  deed  only,  and  does  not  pass  the  land  of  the  corporation,  {g) 


((j)  Bi-iiiley  ?'.  Mann,  2  Ciish.  337. 
The  material  parts  of  the  deed  in  this 
case  were  as  follows :  "  Know  all  men, 
&c.  that  the  New  England  Silk  Com- 
pany, a  corj)oration  legally  established, 
by  C.  C,  tlieir  treasurer,  in  considera- 
tion, &c.  do  hereby  give,  grant,  &c." 
"  In  witness  whereof,  I,  the  said  C.  C,  in 
belialf  of  said  Company  and  as  their 
treasurer,  have  hereunto  set  my  hand  and 
seal."  Tlie  certificate  of  acknowledg- 
ment stated  that  "  C.  C,  treasurer,  &c. 
acknowledged  the  above  instrument  to  be 
his  free  act  and  deed."  The  court  held 
that  this  was  not  the  deed  of  tlie  corpora- 
tion. See  also,  Combe's  case,  9  Co.  R. 
;76,  b ;  Frontin  v.  Small,  2  Stra.  705. 
No  abler  exposition  of  the  doctrine  of 
deeds  by  attorney  is  to  be  found  in  the 
'books  than  that  of  Lord  Chief  Baron 
Gilbert,  Bac.  Abr.  Leases,  J.  10:  "If 
•  one  hath  power,  by  virtue  of  a  letter  of 
attorney,  to  make  leases  for  years  gener- 
ally by  indenture,  the  attorney  ought  to 
make  them  in  tlie  name  and  style  of  his 
master,  and  not  in  his  own  name  :  for  the 
letter  of  attorney  gives  him  no  interest  or 
estate  in  the  lands,  but  oidy  an  authority 
to  sup])ly  the  absence  of  his  master  by 
standing  in  his  stead,  wliich  he  can  no 
.  otherwise  do  than  by  using  his  name, 
and  making  them  just  in  tlie  same  man- 
ner and  style  as  his  master  would  do 
lif  he  were  present :  for  if  he  should  make 
,them  in  his  own  name,  though  he  added 
also,  by  virtue  of  the  letter  of  attorney  to 
him  made  for  that  purpose ;  yet  such 
leases  seem  to  be  void,  because  the  inden- 
ture being  made  in  his  name,  must  pass 
the  interest  and  lease  from  him,  or  it  can 
pass  it  from  nobody  ;  it  cannot  pass  it 
from  the  master  immediately,  because  he 
is  no  party;  and  it  cannot  pass  it  from 

[126] 


the  attorney  at  all,  because  he  has  noth- 
ing in  the  lands  ;  and  then  his  adding  by 
virtue  of  the  letter  of  attorney  will  not  help 
it,  because  that  letter  of  attorney  made 
over  no  estate  or  interest  in  the  land  to 
him,  and  consequently,  he  cannot,  by 
virtue  thereof,  convey  over  any  to  another. 
Neitlier  can  such  interest  pass  from  the 
master  immediately,  or  through  the  attor- 
ney ;  for  then  the  same  indenture  must 
have  this  strange  effect,  at  one  and  the 
same  instant  to  draw  out  the  interest 
from  the  master  to  the  attorney,  and 
from  the  attorney  to  the  lessee,  which 
certainly  it  cannot  do  ;  and  therefore  all 
such  leases  made  in  that  manner  seem  to 
be  absolutely  void,  and  not  good,  even  by 
estoppel,  against  the  attorney,  because 
they  pretend  to  be  made  not  in  liis  own 
name  absolutely,  but  in  the  name  of 
another,  by  virtue  of  an  authority  which 
is  not  pursued.  This  case  therefore  of 
making  leases  by  a  letter  of  attorney 
seems  to  differ  from  that  of  a  surrender  of 
a  copyhold,  or  of  livery  of  seizin  of  a  free- 
hold, by  letter  of  attorney ;  for  in  those 
cases  when  they  say.  We  A  and  B  as 
attorneys  of  C,  or  by  virtue  of  a  letter  of 
attorney  from  C,  of  such  a  date,  <^c.,  do  sur- 
render, ij'c,  or  deliver  to  you  seizin  of  such 
lands ;  these  are  good  in  this  manner,  be- 
cause they  are  only  ministerial  ceremo- 
nies or  transitory  acts  in  pais,  the  one  to 
be  done  by  holding  the  court  rod,  and  the 
other  by  delivering  a  turf  or  twig ;  and 
when  they  do  tliem  as  attorneys,  or  by 
virttie  of  a  letter  of  attorney  from  their 
master,  the  law  pronounces  tliereupon  as 
if  they  were  actually  done  by  the  master 
himself,  and  carries  the  possession  ac- 
cordingly;  but  in  a  lease  for  years  it  is 
quite  otherwise,  for  the  indenture,  or 
deed,  alone  conveys  the  interest,  and  are 


en.  X.]  CORPOR^IONS.  *120 

If,  however,  it  was  only  a  *simple  contract  which  was  executed 
in  this  way,  it  might  be  inferred  from  the  general  principles  of 
the  law  of  agency,  that  it  would  be  valid  as  the  contract  of  the 
corporation  ;  for  it  would  be  a  contract  made  by  one  as  the 
agent  of  another,  and  containing  the  express  declaration  that  it 
was  so  made. 

A  corporation  may  employ  one  of  its  members  as  its  agent, 
and  the  same  person,  while  such  agent,  may  be  also  an  agent 
for  the  other  contracting  party,  and  sign  for  him  the  memoran- 
dum required  by  the  Statute  of  Frauds.  {//) 

Corporations  authorized  by  their  charter  to  act  in  a  pre- 
scribed manner  may  by  practice  and  usage  make  themselves 
liable  on  contracts  entered  into  in  a  different  way.  (i)  But  it 
has  been  decided  that  corporations  cannot  exceed  the  powers 
given  in  their  charters  and  make  contracts  not  incidental  or 
ancillary  to  the  exercise  of  those  powers,  and  that  they  are  not 
estopped  from  setting  up  their  own  want  of  authority  to  make 
such  contracts  by  the  fact  that  they  have  been  in  the  habit  of 
entering  into  and  fulfilling  similar  engagements,  for  a  long 
period,  [ii)  This  question  maybe  regarded,  however,  as  not  yet 
fully  determined. 

In  the  absence  of  special  provisions  in  the  charter,  or  of  by- 
laws lawfully  made,  the  corporate  acts  of  a  corporation  are  the 
acts  of  a  majority  at  a  regular  meeting,  whether  those  present 
were  or  were  not  a  majority  of  the  members  of  the  corpora- 
tion, (j)     And  these  corporate  acts  are  binding  upon  all  the 

the  very  essence  of  the  lease,  both  as  to  ing  it  in  the  name  of  the  mtistcr  by  such 

the  passing  it  out  of  the   lessor  at  first,  attorney,  this  exactly  agrees  with  tiie  cere- 

and    its   sul)sistcnce   in   the   lessee   after-  mony  of  surrendering  by  the  rod,  or  mak- 

wards  ;  the  very  indenture,  or  deed  itself,  ing  livery  by  a  turf  or  twig,  by  tiie  attor- 

is  tlie  conveyance,  without  any  siihs('(|uent  ney,   in   tiie  name  or  as  attorney  of  his 

construction,  or  operation   of  law   there-  master."    And  see  Porter  r.  Androscoggin 

upon  ;  and  therefore  it  must   hv,  made  in  &  Kennel)ec  II.  K.  Co.  37  Me.  349. 

the  name  and  style  of  him  who  lias  sucii  (/i)  Stoddert  r.  Vestry  of  Port  Tobacco 

interest  to  convey,  aiul   not  in   the  name  Parish,  2  Ci.  <&  Johns.  227. 

of  the  attorney,  who  has  notiiing  therein.  (/)  Witte  r.  Deri)y  Fishing  Company, 

But  in  the  conclusion    of  such  lca.>ie,  it  is  2  Conn.  li.  2C0 ;  Bulkley  v.  Derby  Fisli- 

jn'opcr  to  say.  In  witness  whcratf  A  Ii,  of  ing  Company,  2  id.  252. 

such  (I  place,  <j''-,  f"  i»irsit(iiiee  of  n  Irllir  of  {ii)  Governor  and  Company  of  Copper 

altoniei/  hereunto  annexed,  lieariiKj  date  such  Minci-s  r.  Fox,  3   E.  L.  &  E.  420  ;  Ilood 

a  day,  hath  put  the  hand  and  S(al  of  the  v.  New  York  and  New  Ilaveu   Kailruad 

master,  and   so  write  tlie  master's  name,  Company,  22  Coim.  M2. 

and  deliver  it  as  the   act  and  deed  of  the  (^j  Attorncy-Ueneral  c.  Davy,  2  Atk. 

master,  in  which  last  ceremony  of  deliver-  212. 

[127] 


120- 


THE   LAW   ^   CONTRACTS. 


[book  I. 


members,  (k)  It  does  not  seem  to  have  been  positively  decided, 
whether  this  mast  be  a  majority  of  all  the  members  present,  or 
may  be  only  a  majority  of  all  present  and  voting.  But  we 
think  that  it  may  be  the  latter.  Otherwise,  persons  not  voting 
would  be  counted  as  voting  against  the  measure.  As  a  major- 
ity of  all  present  binds  all  the  members,  because  all  the  mem- 
bers might  be  present,  and  perhaps  because  it  is  their  duty  to 
be  present,  so  a  majority  of  those  present  and  voting  should 
have  the  same  force,  because  it  is  within  the  right  and  power 
and  perhaps  the  duty  of  all  present  to  vote,  and  so  to  express 
their  dissent  from  any  measure  which  they  do  not  approve. 


(k)  Rex  >:  Varlo,  Cowp.  248  ;  Field  v. 
Field,  "J  Wend.  394.  — But  where  the 
act  is  to  he  done  hy  a  body  within  the 
corporation,  and  consisting  of  a  definite 
numbei",  a  majority  of  that  bodi/  must 
attend,  and  tiien  a  majority  of  those  thus 
assembled  will  bind  the  rest.  The  King 
V.  Bellringer,  4  T.  R.  810;  The  King  v. 
Miller,  6  id.  268  ;  The  King  v.  Bower,  1 
B.  &  Cress.  492  ;  Ex  parte  Willcocks,  7 
Cowcn,  402.  —  The  rule  is  perhaps  the 
same  where  the  act  is  to  be  done  by  the 

[128] 


corporation,  when  that  consists  of  a  defi- 
nite number.  Lord  Kenyon,  Rex  v.  Bell- 
ringer,  4  T.  R.  822.  At  common  law,  the 
corporation  may  delegate  to  a  select  body 
in  itself,  its  power  of  electing  members  or 
officers.  Rex  v.  Westwood,  7  Bing.  1. — 
In  a  corporation  composed  of  different 
classes,  a  majority  of  each  class  must  con- 
sent before  the  charter  can  be  altered,  if 
there  be  no  provision  in  the  charter  re- 
specting alterations.  Case  of  St.  Mary's 
Church,  7  S.  &  Rawle,  517. 


CH.  XI.]  JOINT-STOCK   COMPANIES.  121 


CHAPTER  XL 

JOINT-STOCK   COMPANIES. 

In  England  the  statute  of  7  •&  8  Victoria,  ch.  110,  has  the 
effect  of  making  joint-stock  companies,  formed  and  registered 
in  a  certain  way,  quasi-corporations.  In  this  country,  wherever 
there  are  no  similar  statutory  provisions,  joint-stock  companies 
are  rather  to  be  regarded  as  partnerships.  The  English  statute 
above  referred  to  defines  a  joint-stock  company  as  "  a  partner- 
ship whereof  the  capital  is  divided  or  agreed  to  be  divided  into 
shares,  and  so  as  to  be  transferable  without  the  express  consent 
of  all  the  copartners."  (/)  And  this  definition  may  be  considered 
as  applicable  to  such  companies  in  this  country.  Although  a 
joint-stock  company  is  certainly  not  a  corporation,  yet  it  differs 
in  some  respects  from  a  common  partnership.  A  member  of  a 
partnership  may  assign  his  interest  in  the  property  of  the  firm ; 
but  the  assignee  does  not  become  a  partner  unless  the  other 
copartners  choose  to  admit  him  ;  and  the  interest  so  assigned 
being  subject  to  all  the  debts  of  the  partnership,  it  may  be  with- 
held by  the  partners  for  the  purpose  of  settling  the  affairs  of  the 
firm,  and  until  it  is  certain  that  there  is  a  balance  belonging  to 
the  jjartners,  and  until  the  share  belonging  to  the  assigning 
partner  may,  in  whole  or  in  part,  be  jiaid  over  to  his  assignee 
without  injury  to  the  creditors  of  the  firm,  (m)  But  in  a  joint- 
stock  company  provision  is  made  beforehand  for  such  transfer, 

(/)  7  &  8  Vict.  c.  110.  4  2.     The  same  The   Bul)l)lc  Act,  (6  G.   1,  c.  18,)  made 

section  j)rnceeds  to  incliide  also  within  tlio  diirinjr  the    excitement  ])rodii('ed  by  the 

term  Joint-Stock  Comiiany,  all  Lite,  Fire,  South  Sea  Company,  havinjj^  been  repeal- 

and    Marine    Insinance    companies,    and  cd  hy  the   statute   6  G.   4,  c.  91,  it  was 

every  partnership  consisting  of  more  than  lield  in  Garrard  v.  Ilardev,  5  M.  &  Gran, 

twenty-tive  members.  471,  that  the  formation  o^  a  company,  the 

(hi)  See  Pratt  v.  Hutchinson,  15  Ea.st,  stock  in  which  should  l)e  transferable,  was 

511;    Hex    »•.  Webb,    14    East,  406  ;, Jo-  not  an  oti'ence  at  common  law.     And  the 

seplus  r.  Pebrer,  3  R.  &  C.  6.39 ;  Fox  v.  doctrine  was   reaffirmed    in    Harrison   v. 

Clifton,  9  Bing.    115,  S.  C.  6  id.  776.  Heathorn,  6  M.  &  Gran.  81. 

[129] 


122* 


THE   LAAV    OF   CONTRACTS. 


[book  I. 


and  this  is  a  principal  object  and  effect  of  the  division  into 
shares. 

*In  other  respects  the  differences  between  the  law  of  joint- 
stock  companies  and  that  of  partnerships,  (which  is  our  next 
topic,)  are  not  very  many  nor  very  important,  (mm) 

Some  question  has  arisen  as  to  the  power  of  a  managing 
committee  to  pledge  the  credit  of  the  members  of  a  society. 
And  it  is  held  that  this  must  depend  upon  the  rules  and  by-laws 
of  the  society,  (n)  Such  a  case  is  not  likened  to  that  of  a  part- 
nership,-but  is  governed  by  the  law  of  principal  and  agent,  (o) 
Nor  has  a  member  of  a  joint-stock  company  any  implied  au- 
thority to  accept  bills  in  the  name  of  the  directors  or  of  the 
company.  (j»)  The  effect  of  becoming  a  subscriber  to  an  in- 
tended company,  in  regard  to  the  creation  of  a  partnership  be- 
tween the  members,  as  well  among  themselves  as  in  reference 
to  the  public,  has  been  before  the  courts  ;  and  it  has  been  held 
that  an  application  for  shares  and  payment  of  the  first  deposit 
did  not  suffice  to  constitute  one  a  partner,  where  he  had  not 
otherwise  interfered  in  the  concern  ;  (q)  and  that  the  insertion 
of  his  name  by  the  secretary  of  the  company  in  a  book  contain- 
ing a  list  of  the  members  was  not  a  holding  of  himself  out  to 
the  public  as  a  partner,  (r)  And  this  on  the  ground  that  such 
person  does  not  thereby  acquire  a  right  to  share  in  the  profits. 

But  though  there  be  some  want  of  the  necessary  formalities 
or  acts  of  a  party  to  make  himself  legally  a  member,  yet  if  he 
interpose  and  act  as  a  member  or  director,  (s)  attend  meetings, 
accept  office,  or  otherwise  give  himself  out  to  the  public  as  such, 
either  expressly,  or  by  sufficient  implication,  then  he  will  make 
himself  liable  as  a  partner.  (/)     And  this  even  if  the  company 


{mm)  Sec  remarks  of  Lord  Campbell,  in 
Burness  v.  Penncll,  2  Ho.  of  Lords  Cases, 
497. 

(w)  Flcmyngr.  Hector,  2  M.  &  W.  172. 
And  see  Reynell  v.  Lewis,  15  M.  &  W. 
517. 

(o)  Ibid. 

(/>)  Hramah  v.  Roberts,  3  Bing.  N.  C. 
963;  Dickinson  v.  Valpv,  10  B.  &  Cress. 
128  ;  Steele  v.  Hanner,  14  M.  &  W. 
831. 

iq)  Pitchford  v.  Davis,  5  M.  &  W.  2  ; 

[130] 


Fox  V.  Clifton,  4  M.  &  Pajme,  676,  6 
Bing.  776.  Same  case  sent  down  for  a 
third  trial,  9  Bing.  115.  And  see  Bourne 
V.  Freeth,  9  B.  &  Cress.  632. 

(r)  Fox  V.  Clifton,  4  M.  «&  Payne, 
676. 

(.s)  Lord  Demnan,  Bell  v.  Francis,  9  C 
&  P.  66. 

{t)  Doubleday  v.  Muskett,  7  Bing.  110  ; 
Tredwen  v.  Bourne,  6  M.  &  W.  461  ; 
Maudslay  v.  Le  Blanc,  2  C.  &  P.  409, 
note ;  Braithwaite  v.  Skofield,  9  B.  &  C. 


en.  XI.] 


JOINT-STOCK   COMPANIES. 


*123 


originated  in  fraud,  to  which  he  is  not  a  party,  nor  privy ;  (u) 
or  if  a  deed  expressly  required  by  the  printed  *prospectus  to 
make  him  a  partner  has  not  been  signed  by  him  ;  (y)  or  even  if 
the  company  has  never  been  regularly  and  finally  formed ;  (iv) 
or  has  been  abandoned;  (x)  or  is  insolvent.  (//) 

It  seems  that  a  member  of  such  a  company  may  sue  the 
company  for  work  and  labor  done,  and  money  expended  by 
him  in  their  behalf,  (z) 


401  ;  reel  v.  Thomas,  29  E.  L.  &  E.  276. 
And  see  Harrison  v.  Heathoru,  6  Scott, 
N.  K.  735. 

(«)  Ellis  V.  Schmoeck,  5  Bing.  521,  S. 
C.  3  M.  &  P.  220. 

(v)  Maudslay  v.  Le  Blanc,  2  C.  &  P. 
409,  note.  And  see  Ellis  v.  Schmoeck,  5 
Bing.  521. 

(w)  ANxjtt,  C.  J.,  Keasley  v.  Codd,  2 
C.  &  P.  408,  n. 

(x)  Douhlcdav  r.  Muskett,  7  Bing.  110. 

(ij)  Keasley  v.  Codd,  2  C.  &  P.  408. 

(;r)  Garden  v.  General  Cemetciy  Co.,  5 
Bing.  N.  C.  253.  But  it  is  to  be  observed 
that  this  was  so  held  with  reference  to  an 
incorporated  joint-stock    company ;    and 


some  sti'css  was  laid  in  the  decision  upon 
the  particular  provisions  of  the  act  of  in- 
corporation. And  see  Pcrring  v.  Hone,  4 
Bing.  28.  —  A  member  of  a  joint-stock 
company,  like  a  member  of  an  ordinary 
partiiersliip,  may  recover  compensation 
for  service  rendered  to  the  company  pre- 
vious to  his  having  become  a  member  of 
it.  Lucas  V.  Beach,  1  M.  &.  Gran.  417. 
In  general,  however,  an  action  cannot 
be  maintained  by  a  memlicr  against  the 
company,  or  by  the  com])any  against  a 
member,  on  a  contract  between  him  and 
the  company.  Neale  v.  Turton,  4  Bing. 
149  ;  AVilson  v.  Curzon,  15  M.  &  W.  532 ; 
Holmes  v.  Higgins,  1  B.  &  C.  74. 

[131] 


124  THE  LAW  OF  CONTRACTS.  [BOOK  I. 


CHAPTER  XII. 

PARTNERSHIP. 

Sect.  I.  —  What  constitutes  a  Partnership. 

A  PARTNERSHIP  exists  when  two  or  more  persons  combine 
their  property,  labor,  and  skill,  or  one  or  more  of  them,  in  the 
transaction  of  business,  for  their  common  profit. 

A  partnership  is  presumed  to  be  general  when  there  are  no 
stipulations,  or  no  evidence  from  the  course  of  business  to  the 
contrary.  But  it  may  be  created  for  a  specific  purpose,  or  be 
confined  by  the  parties  to  a  particular  line  of  business,  or  even 
a  single  transaction.  When  the  partnership  is  formed  by 
written  articles,  it  is  considered  as  beginning  at  the  date  of  the 
articles,  unless  they  contain  a  stipulation  to  the  contrary,  (a) 

In  general,  persons  competent  to  transact  business  on  their 
own  account  may  enter  into  partnership  ;  the  disabilities  of 
coverture,  infancy,  and  the  like,  applying  equally  in  both  cases. 
But  interesting  questions  have  been  raised  as  to  the  rights  and 
liabilities  of  those  who  represent  infants.  The  personal  liability 
of  such  a  party  would  seem  to  depend  upon  the  question 
whether  he  has  claimed  and  exercised  the  right  of  withdrawing 
any  part  of  the  capital,  or  of  receiving  a  share  of  the  profits. 
Perhaps  if  he  had  by  agreement  the  right  to  do  this,  and  more 

(a)  Williams  v.  Jones,  5  B.  &  Cr.  108.  ditional  agreement,  which  was  not  to  take 
An  attorney  entered  in  a  written  contract,  etfect  till  the  person  to  be  received  was 
whercliy  heagreed  to  take  into  partnership  admitted  as  attorney,  and  that  it  was  there- 
in his  business  a  person  who  had  not  then  fore  void.  See  Dix  v.  Otis,  5  Pick.  38. — 
been  admitted  as  attorney,  and  therefore  But  parties  may  agree  to  form  a  partner- 
could  not  be  lawfully  received.  No  time  siiip  at  some  future  time,  and  until  it 
being  expressly  fixed  for  the  commence-  arrives  they  will  not  be  liable  as  partners, 
ment  of  the  partnership,  the  court  held  unless  they  have  held  themselves  out  as 
that  it  was  an  agreement  for  a  present  such.  Dickinson  i\  Valpy,  10  B.  «&.  C 
partnership,  and  that  parol  evidence  was  128;  Avery  u.  Lauve,  1  Louisiana  Annual 
not  admissible  to  show  that  it  was  a  con-  Kep.  457. 

[132] 


CII.  XII.] 


PARTNERSHIP. 


*125 


certainly  if  he  had  actually  witlidrawn  *capital  or  profits,  he 
would  bo  held  personally  responsible  for  the  debts  of  the  part- 
nership, (b) 

Usually,  the  partners  own  together  both  the  property  and  the 
profits;  but  there  maybe  a  partnership  in  the  profits  only. 
For  as  between  themselves  the  property  may  belong  wholly  to 
one  member  of  the  partnership,  although  it  is  bound  to  third 
parties  for  the  debts  of  the  firm  ;  as  when  it  is  bought  wholly 
by  funds  of  one  partner,  and  the  other  is  to  use  only  his  skill 
and  labor  in  disposing  of  it,  for  a  share  of  the  profits,  (c) 


SECTION    II. 

OF   THE   REAL   ESTATE    OF   A   PARTNERSHIP. 

All  kinds  of  property  may  be  held  in  partnership  ;  but  real 
estate  is  still  subject,  to  a  certain  extent,  to  the  rules  which 
govern  that  kind  of  property.  There  is  some  conflict,  and  per- 
haps uncertainty,  as  to  the  right  and  remedies  of  partners  and 
creditors  in  respect  to  real  pro|)crty  which  belongs  to  the  part- 
nership, both  in  England  and  in  this  country.     But  we  consider 


(/-)  IJurkliar.  Scott,  1  Hurl.  ^  Brooke, 
83.  A  iiivcstC'fl  a  s\\m  of  iiionoy  for  his 
intant  son  in  a  partnersliii)  on  it.s  forma- 
tion, and  it  was  sti])iilatcil,  in  a  letter 
written  liv  tlie  otiier  partners  of  tiic  house, 
that  tliey  should  correctly  account  with  A, 
as  tlie  trustee  of  his  son,  for  one  third 
profit  of  his  sou's  capital,  or  any  loss  that 
nii;:ht  accrue,  and  lie  i^ovcrncd  and  di- 
rected liy  his  advice  in  all  matters  relative 
to  the  husiness.  J/dd,  that  tliis  letter  did 
not  constitute  A  a  partner,  the  jury  liavin;^ 
found  that  the  money  was  not  invested  iiy 
A  for  liis  own  lieniHt,  and  that  he  had  not 
reserved  tf>  liimsclf  the  power  of  drawinj; 
out  the  principal  or  jtroiits  as  tnistee  for 
liis  son,  nor  in  fiict  drawn  any. 

{(•)  So  where  n  hrokcr,  employed  hy  a 
merchant  to  purchase  (joods,  with  the 
funds  of  the  merchant,  was  to  Iw  one  third 
interested  in  them,  an<l  not  to  chart;e  com- 
missions, and  the  eorrcspon<lenec  lictwcen 
him  anil  the  merchant  descrii.ed  the  trans- 
action as  a  joint  concern,  the  broker  was 

VOL.  I.  12 


held  to  be  interested  as  a  partner  in  the 
fjooils,  and  could  pledjie  the  whole  of  them. 
Keiil  V.  Hollinshead,  4  B.  &  Cr.  867. 
Aliliitl,  C.  J.  :  "  Such  a  partnership  may 
well  e.xist,  ahhou^ih  the  whole  price  is  in 
the  (irst  instance  advanced  by  one  partner, 
the  (jther  contril)utin;x  Ids  time  and  skill 
and  security  in  the  selection  and  purchase 
of  the  commodities."  —  But  where  the 
broker  merely  acts  as  apent,  and  in  lieu  of 
eonmussions  is  to  receive  a  certain  pro- 
portion of  the  profits  arising  from  the  sale, 
and  bear  »  certain  projiorrion  of  the  losscs^, 
the  jiroperty  in  the  suliject  of  the  sale  does 
not  vest  in  him  as  a  ]iartner.  althouL'h  he 
may  be  liable  as  such  to  third  |)ersons. 
Smith  r.  Wat.son,  2  B.  &  C.  401.  So 
where  one  partner  fin-nishes  cajutal,  and 
the  other  labor,  mutual  interest  in  the 
jtroOts  alone  will  nfit  render  thf  iMtfer 
liable  to  the  fdrmer  fi)r  contribution  for 
any  loss  of  cajiital  in  the  adventure. 
Hcrau  r.  Uall,  1  B.  Monroe,  159. 

[133] 


126* 


THE   LAW   OF    CONTRACTS. 


[book  I. 


the  prevailing  and  the  just  rule  to  be,  that  when  real  estate  is 
purchased  with  partnership  funds,  for  partnership  *purposes,  it 
will  be  treated  as  partnership  property,  and  held  like  personal 
property,  chargeable  with  the  debts  of  the  firm,  and  with  any 
balance  which  may  be  due  from  one  partner  to  the  other,  upon 
the  winding  up  of  the  affairs  of  the  firm,  (d)  But  it  seems  to 
be  the  prevailing  rule  in  this  country,  that  as  between  the  per- 
sonal representative  and  the  heirs  of  a  deceased  partner,  his 


(d)  Goodbum  v.  Stevens,  5  Gill,  1  ; 
Buclian  v.  Sumner,  2  Barb.  Ch.  165, 197- 
207,  where  several  leading  cases  are  re- 
viewed ;  Buckley  v.  Buckley,  1 1  Barb. 
44 ;  Piatt  i'.  Oliver,  3  McLean,  27  ;  liice 
V.  Barnard,  20  Verm.  479 ;  Overholt's 
Appeal,  12  Penn.  St.  222  ;  Moderwell  v. 
Mullison,  21  id.  257  ;  Buck  v.  Winn,  11 
B.  Mon.  322;  Owens  v.  Collins,  23  Ala. 
837;  Cox  v.  McBurney,  2  Sandf.  561. 
"  So  far  as  the  partners  and  their  creditors 
are  concerned,  real  estate  belonging  to  the 
partnership  is  treated  in  equity  as  personal 
property,  and  subjected  to  the  same  gen- 
eral rules."  Assistant  V.  C,  Dclmonico 
V.  Guillaume,  2  Sandf.  Ch.  336.  ■  And 
where  the  real  estate  is  purchased  for  part- 
nership purposes  on  partnership  account, 
it  is  immaterial  whether  the  purchase  is 
made  in  the  name  of  one  partner  or  of  all, 
or  of  a  stranger.  Boyers  v.  Elliott,  7 
Humph.  204  ;  Hoxie  ik  Carr,  1  Sumner, 
182.  In  this  last  case.  Story,  J.,  says  : 
"  A  question  often  arises,  whether  real 
estate,  purchased  for  a  partnership,  is  to 
be  deemed  for  all  purposes  personal  estate 
like  other  effects.  That  it  is  so,  as  to  the 
payment  of  the  partnei-ship  debts,  and  ad- 
justment of  partnership  rights,  and  wind- 
ing up  the  partnership  concerns,  is  clear, 
at  least  in  the  view  of  a  court  of  equity. 
But,  whether  it  becomes  personal  estate  as 
between  the  executor  or  administrator  of  a 
deceased  j)artner  and  his  heir  or  devisee, 
is  quite  a  different  question,  upon  which 
learned  judges  have  entertained  opposite 
opinions.  The  whole  doctrine  as  between 
such  claimants,  must  turn  upon  the  pre- 
sumed intention  of  the  deceased  partner  ; 
whether  by  leaving  it  in  the  state  of  being 
real  property  he  meant,  as  between  his 
personal  representatives  and  his  heirs  and 
devisees,  that  it  should  retain  its  true  and 
original  character  ;  or  whether,  having  ap- 
propriated it  as  partnership  property,  it 
should  assume  the  artificial  character  be- 
longing to  the  other  personal  funds  of  the 
[134] 


firm."  See  Sigoumey  v.  Munn,  7  Conn. 
11.  —  In  Buchan  v.  Sumner,  already  cited, 
Chancellor  Walworth  states  it  to  be  the 
EmjHsh  rule,  "  That  real  estate  belonging 
to  the  firm,  unless  there  is  something  in 
the  partnership  articles  to  give  it  a  ditfei-ent 
direction,  is  to  be  considered,  in  equity,  as 
personal  property  ;  and  that  it  goes  to  the 
personal  representative  of  the  deceased 
partner,  who  was  beneficially  interested 
therein." — Wooldridgei'.Wilkins,  3  How- 
ard, (Miss.)  372.  After  reviewing  Greene 
V.  Greene,  1  Hamm.  244,  and  Thornton 
V.  Dixon,  3  Bro.  Ch.  199,  the  court  say  : 
"  The  result  of  these  cases  we  take  to  be, 
that  lands  purchased  by  partners,  imder 
an  agreement  that  they  shall  be  sold  for 
the  benefit  of  the  partnership,  will  be  re- 
garded as  joint-stock,  and  will  be  likewise 
so  considered,  though  there  be  no  agree- 
ment, if  tliere  be  such  an  application  or 
use  of  them  to  the  purposes  of  the  concern, 
as  evidences  an  original  understanding  of 
the  parties  that  they  are  to  be  treated  as 
such,  and  not  as  an  estate  in  common." 
See  Dyer  v.  Clark,  5  Met.  562.  —  See 
West  V.  Skip,  1  Ves.  Sen.  242 ;  Phillips 
V.  Phillips,  1  M.  &  K.  663.  Sir  John 
Leach,  M.  R.,  in  this  last  case  said,  that 
notwithstanding  older  authorities,  he  con- 
sidered it  to  be  settled  that  all  property, 
whatever  might  be  its  nature,  jnnchased 
with  partnership  capital  for  the  purposes 
of  the  partnership  trade,  continued  to  be 
partnei"ship  capital,  and  to  have  to  every 
intent  tjie  quality  of  personal  estate.  And 
this  is  confirmed  in  Broom  v.  Broom,  3 
M.  &  K.  443.  See  Pugh  v.  Currie,  5  Ala. 
N.  S.  446.  —  In  Pierce  v.  Trigg,  10  Leigh, 
427,  Tucker,  P.,  after  reviewing  the  Vir- 
ginia cases,  adds :  "  Upon  the  whole,  I  am 
of  opinion  that  the  late  English  cases  pro- 
pound the  true  rule,  and  that  real  estate, 
purchased  with  partnership  funds  and  for 
partnership  purposes,  must  be  regarded  as 
partnership  stock,  and  treated  as  person- 
alty." 


CII.  XII.] 


PARTNERSHIP. 


^127 


share  of  the  surplus  of  the  real  estate  of  the  partnership,  after 
all  its  debts  are  paid,  and  the  equitable  claims  of  its  members 
are  adjusted,  will  be  considered  and  treated  as  real  estate,  (dd) 
It  has  been  held,  that  *the  real  estate  of  a  partnership  does  not 
acquire  the  incidents  or  liabilities  of  personal  estate,  unless  there 
be  an  agreement  of  the  partners  to  that  effect ;  and  that  then 
this  change  in  the  legal  nature  of  the  property  results  from  this 
agreement,  (e)  but  we  doubt  the  accuracy  of  this  ruling  ;  unless 
it  is  admitted  that  such-  agreement  may  be  inferred  from  the 
purchase  of  the  property  by  partnership  funds,  and  the  use  of  it 
for  partnership  purposes.     It  seems  that  improvements  made 


(fid)  Goodwin  r.  Kichardson,  11  Mass. 
469.  In  this  case  an  estate  was  mortpajrcd 
to  two  partners,  who  a(<|uiix"d  an  absolute 
title  hy  foreclosure,  and  tiic  court  lield  tliat 
it  thea-by  vested  in  them  as  tenants  in 
common,  and  on  the  deatli  of  one  partner 
was,  as  to  his  moiety,  to  be  treated  as  his 
separate  estate.  See  Iloxie  v.  Carr,  1 
Sumn.  IS."),  where  Story,  J.,  says  that  this 
decision  "  turns  upon  a  mere  point  of  local 
law,  under  a  local  statute,  and  does  not 
dispose  of  the  equities  between  the  parties 
rcsultiufT  from  j^encral  principles."  In 
Yeatman  v.  Woods,  6  Yerj^.  20,  it  was 
hell!  that  real  estate  held  by  partners,  for 
partncrshiit  iiur|)Oses,  descends  and  vests 
in  the  heir  at  law  of  a  decea.«ed  partner, 
a.s  real  estate  in  other  cases.  In  Dcloney 
r.  llutcheson,  2  Kand.  183,  it  is  said  that 
"  The  surN'ivinfT  partner,  if  he  Ir'  a  crcil- 
itor,  can  have  no  other  remedy  a<rainst  the 
real  estate  than  any  other  creditor  can 
have."  In  Lawrence  v.  Taylor,  h  Hill, 
111,  it  is  said:  "Out  of  the  Court  of 
Chancery,  real  estate,  tlionjrh  i)elon^in<r  to 

fiartncrs  and  em]5loyed  in  the  ]>artiicrKliip 
)usiness  —  the  title  stan<litijr  in  their  joint 
names  —  is  deemed  to  be  holden  by  tlicm 
as  tenants  in  common,  or  joint-tenants  for 
all  ])urposes." 

{(■)  In  Coles  V.  Coles,  15  Johns.  159  ; 
Thornton  r.  Dixon,  .3  Brown,  Ch.  H.  190  ; 
Hell  r.  I'byim,  7  Ves.  45.3;  Halmain  v. 
Shore,  9  iil.  ."iCIO,  lanjruajre  is  used  which 
mi;rlit  have  this  interpivtation.  In  Smith 
r.  Jackson,  2  Ivlw.  Ch.  28,  the  V'ice- 
Chancellfir  said  :  "  If  at  the  time  of  form- 
in;;  the  )iartnershi[),  the  parties  apee  to 
invest  a  part  of  their  capital  in  the  pur- 
chase of  real  estate  for  partnership  |>ur- 
poscs,  or  should  at  any  time  afterwards 
find  it  expedient  to  do  so,  and  a^rire  be- 
tween themselves  that,  ui)on  the  dissolu- 


tion, the  real  as  well  as  personal  estate 
shall  be  sold  and  turned  into  money  for 
the  purpose  of  paying  the  partnership  debts 
an<l  closing  their  joint  concerns,  there  the 
Court  of  Chancery,  acting  upon  the  agree- 
ment, and  considering  that  as  done  which 
was  agreed  to  he  executed,  is  warranted 
in  regarding  the  whole  as  personalty, 
cither  in  reference  to  the  claims  of  cred- 
itors, or  the  rights  of  the  heir  or  next  of 

kin  of  a  deceased  partner But  if  a 

purchase  be  made  and  a  conveyance  taken 
to  partners  as  tenants  in  common,  without 
any  agreement  to  consider  it  as  stock, 
although  it  Itc  paid  for  out  of  their  joint 
fund,  and  to  be  used  for  partnership  pur- 
jKJses,  I  ant  of  opinion  it  must  still  be 
deemed  real  estate."  Kijjlev  r.  Water- 
worth,  7  Ves.  425.  (1802.)  *Ix)rd  J-JIdon 
in  this  case  held  to  the  ettcct  that  if  an  in- 
tention to  convert  the  real  property  of  the 
partnership  (-.m  l)e  gatiiei-ed  from  the  gen- 
eral tenor  of  the  partnershij)  deed,  cou]>led 
witii  the  nature  of  the  partnership  dealings, 
that  intention  must  prevail  to  the  full  ex- 
tent of  converting  the  real  property,  as 
between  the  real  an<l  personal  representa- 
tives fif  the  deceased  partiter ;  although 
the  jiroperty  might  not  have  bei'u  jjur- 
chased  with  partnership  funds,  and  no  con- 
version migiit  be  necessary  for  the  payment 
of  the  partnership  debts.  Collycr,  Part. 
s*'ct.  142  ;  Sclkrig  v.  Davies,  2  i)ow,  242. 
(1814.)  Lord  A'W««;"My  own  indi- 
vidual opinion  is,  that  all  pn)pcrty  involved 
in  a  partnership  concern  ought  to  be  con- 
sidered as  personal."  See  also  the  judg- 
ment <if  Lord  Elilon  in  Crawshay  r.  ^laulc, 
1  Swanston,  521  ;  and  Townsend  v.  l)e- 
vaynes,  1  Montague  on  Partnership,  Ajip. 
note  (2  A).  And  see  upon  this  point  tiie 
late  case  of  Jarvis  v.  Brooks,  7  Fost.  37. 

[135]        _ 


ISS'' 


THE   LAW   OP   CONTRACTS. 


[book  I. 


with  partnership  funds  on  real  estate  belonging  to  one  *of  the 
partners,  will  be  treated  as  the  personal  property  of  the  partner- 
ship.  (/) 

The  widow  has  her  dower  in  the  estate  after  the  debts  are 
paid,  but  not  until  then,  (g)  Although  the  legal  title  is  pro- 
tected, the  party  having  such  title  is  held,  if  necessary,  as  trus- 
tee for  partnership  purposes,  or  for  the  surviving  partner.  And 
if  a  partner  buys  lands  out  of  partnership  funds,  and  takes  title 
to  himself,  he  may  be  held  as  trustee  for  the  partnership,  {h) 


(  f)  Avcrill  V.  Loucks,  6  Barbour,  Sup. 
Ct."28. 

((/)  Goodburn  v.  Stevens,  5  Gill,  1  ; 
Gi'cene  v.  Greene,  1  Ham.  244 ;  Ivichard- 
son  V.  Wyatt,  2  Desaus.  471  ;  Wt)oklridge 
V.  Wilkins,  3  Howard,  (Miss.)  oG(J,  37f; 
Burnsidc  v.  Mcrriok,  4  Met.  541  ;  Dyer 
V.  Clark,  .5  M(!t.  5G2.  In  this  last  case 
the  liabilities  of  pai-tncrship  propci'ty  to 
partnership  creditors  were  elaborately 
considered  in  the  decision  of  the  court,  the 
piu'port  of  which  is  <i'ivcn  in  the  head  note, 
as  follows  :  When  real  estate  is  imrehascd 
by  partners,  with  the  partnership  funds, 
partnership  use  and  convenience,  althou<^h 
it  is  conveyed  to  tlicm  in  such  a  manner 
as  to  make  them  tenants  in  common,  yet 
in  the  absence  o'f  an  express  agreement,  or 
of  circumstances  showing  an  intent  that 
such  estate  shall  be  held  for  their  separate 
use,  it  will  be  considered  and  treated,  in 
equity,  as  vestinjr  in  them,  in  tlieir  part- 
nership capacit}',  clothed  v>ith  an  implied 
trust  that  they  shall  hold  it,  until  the  pur- 
poses for  which  it  was  so  purchased  shall 
be  accomplished,  and  that  it  shall  lie  ap- 
plied, if  necessary,  to  the  payment  of  the 
partnership  delits.  U]ion  the  dissolution 
of  the  partnership,  by  the  death  of  one  of 
the  partners,  the  survivor  1ms  an  e([nitable 
lien  on  such  real  estate  for  his  indemnity 
against  the  debts  of  the  firm,  and  for 
securing  the  balance  that  may  be  due  to 
him  froni  the  deceased  partner,  on  settle- 
ment of  the  partnershi])  accounts  between 
them ;  and  the  widow  and  heirs  of  such 
deceased  partner  have  no  beneficial  inter- 
est in  such  real  estate,  nor  in  the  rent  re- 
ceived therefrom  after  his  death,  until  the 
surviving  ])artner  is  so  indemnified.  See 
Howard  v.  Priest,  5  Met.  .582 ;  Peck  i\ 
Fisher,  7  Cusli.  38(i.  —  Smith  v.  Smith,  5 
Ves.  189.  The  estates  in  tliis  case  were 
held  subject  to  dower,  having  l)cen  pur- 
chased with  the  partnership  fund,  but  cou- 

[136] 


veyed  to  one  partner  under  a  specific 
agreement  that  they  should  be  his,  and  he 
should  be  debtor  for  the  money.  Lord 
Chancellor  Lomjlihorouyh  said  :  "If  these 
estates  had  only  been  conveyed  to  one 
partner,  having  been  jnirchased  with  the 
partnership  funds,  they  would  have  ])ecn 
jiart  of  the  partnership  property.  But 
that  was  not  the  nature  of  the  transaction. 
The  distinction  is,  the  agreement  as  to  the 
purchase  of  these  houses  was  specific. 
Upon  that  they  never  could  be  specifically 
divided,  as  if  they  wei'e  part  of  the  part- 
nersliip  stock ;  but  wlicn  they  came  to 
settle,  the  hoiiscs  were  Robert  Smith's, 
and  he  was  debtor  for  so  much  money." 

[h]  Pierce  v.  Trigg,  10  Leigh,  406. 
Tucker-,  P.,  (witli  whom  r'aW/,  J.,  agreed) 
after  a  review  of  the  English  cases  said  : 
"  I  think  then  the  doctrine  laid  down  in 
Gow  on  Partnerslup,  .51,  and  3  Kent, 
Comm.  37,  may  now  be  taken  as  settled 
in  England  ;  namely,  that  real  estate  ]nir- 
ehased  for  partnership  purjioscs  with  part- 
nership funds,  and  used  as  a  part  of  the 
stock  in  trade,  is  to  be  considered  to  eveiy 
intent  as  persomd  property,  not  only  as 
between  the  members  of  the  partnership 
respectively,  and  their  creditors,  but  also 
as  between  the  surviving  partner  and  the 
representatives  of  the  deceased.  The  legal 
title  may  indeed  be  in  tlie  heir,  but  let  the 
legal  title  be  in  whom  it  niay,  it  is  in 
e(juity  deemed  partnership  property,  and 
the  partners  are  deemed  ct.stiiis  ijnc  trust 
thereof,  while  the  holder  of  the  legal  title 
is  but  a  trustee  for  the  partnersliip."  In 
Pugh  V.  Currie,  5  Ala.  N.  S.  440,  the 
court  say :  "  It  can  make  no  diflerence 
whatever  that  the  land  was  entered  in  the 
name  of  the  deceased  jjartner — the  lieirs 
will,  in  a  court  of  cijuity,  be  considered 
as  trustees  oftiic  surviving  partner."  In 
the  case  of  Burnside  ;;.  Memck,  4  Met. 
541,  Shaw,  C.  J.,  having  stated  the  ques- 


cu.  xil] 


PARTNERSHIP. 


*129-*130 


It  is  to  be  remembered,  however,  as  before  stated,  that  this  rule 
extends  only  so  far  as  may  be  made  necessary  by  the  business 
or  debts  of  the  partnership,  and  as  soon  as  this  necessity 
ceases,  any  remaining  real  estate  has  all  the  incidents  of  real 
property,  as  to  conveyance,  inheritance,  and  dower.  And  where 
the  land  purchased  with  the  partnership  funds  is  afterwards  sold 
by  the  partner  who  has  the  legal  title  to  the  whole,  or  to  a  part 
as  tenant  in  common,  neither  the  firm  nor  its  creditors  have  any 
Hen  on  the  land  for  partnership  'purposes,  against  a  purchaser 
without  notice  or  knowledge,  where  the  deed  to  the  partners  did 
not  describe  them  as  members  of  a  firm,  or  partners,  or  other- 
wise indicate  the  fact  that  the  land  was  purchased  as  partner- 
ship property,  (i)     But  *a  purchaser  with  actual  or  constructive 


tion  to  be,  whether  real  estate,  pur- 
chased by  partners,  for  partnersliip  busi- 
ness, and  witli  partnersliip  funds,  but  con- 
veyed to  thorn  bij  such  a  dnd  as,  in  rase  of 
other  parties,  luould  make  thim  tenants  in 
common,  wouhl  be  considered  as  ])artner- 
ship  stock,  said :  "  Thon;:h  tlierc  has  l)ecn 
much  diversity  of  judicial  opinion  upon 
tlic  subject,  we  think  the  prevuilinjr  ojiin- 
ion  now  is,  that  real  estate,  so  actiuii-ed,  is 
to  be  considered  at  law  as  the  several 
projjerty  of  the  yiartners,  as  tenants  in 
Cfjniniori :  yet  that  it  is  so  held,  sul)ject  to 
a  trust,  arisin<r  by  inii)lication  of  law,  l)y 
which  it  is  liable  to  be  sold,  and  the  pro- 
ceeds broujrht  iTito  the  jiartuership  fund, 
as  far  as  is  necessary  to  pay  the  debts 
of  the  firm,  and  to  pay  any  balance 
which  may  be  due  to  tiie  other  partners, 
on  a  final  settlement;  and  cannot  be  held 
by  the  separate  owner,  except  to  the  extent 
of  his  interest  in  such  final  bal^ipce.  Anil 
it  fi^llows  as  a  necessary  consecpience,  that 
when  the  firm  is  insolvent,  the  whole  of 
the  )iropcrty,  so  held,  must  be  brout^ht 
into  the  partnership  fund,  in  order  to  sat- 
isfy the  partnership  creditoif;,  as  fiir  as  it 
will  fro  fi)r  that  purpose."  See  Huchan  r. 
Sumner,  2  IJarb.  Ch.  IGf) ;  Smith  r.  TaH- 
ton,  2  Barb.  Ch.  236 ;  McGuirc  v.  Ram- 
sey, 4  En;:.  (Ark.)  518  ;  Iloxie  r.  f'arr,  1 
Sumn.  182.  In  the  ca.se  of  riiillips  r. 
("rammond,  2  Wash.  C.  C.  445,  ]\\ish- 
inijliin,  J.,  in  delivering  his  opinion,  said  : 
"  The  ;;encral  principle  is,  that  if  a  re- 
ceiver, executor,  factor,  or  trustee,  lay 
out  the  money  which  he  ludds  in  his  fidu- 
ciary character,  in  the  purcha.se  of  real 
property,  atid  take  the  oonvi;yancc  to  him- 

12* 


self,  he  who  is  entitled  to  the  money, 
which  has  been  thus  invested,  may  follow 
the  same,  and  consider  the  purchase  as 
made  for  his  use,  and  the  purchaser  a 
tni.stcc  for  him.     Upon  the  same  principle, 

1  conceive  that  a  resultinjr  tnist  would 
arise  to  a  partnership  concern  in  lands 
purchased  by  one  of  the  ])artners,  and  paid 

for  out  of  the  joint  funds 

But  this  s])ccics  of  rcsultin<r  trust  is  open 
to  certain  (pialifications,  amonfrst  which  it 
is  proper  to  notice  the  following,  namely, 
that  the  person  whose  money  was  invested 
in  the  purchase,  is  not  obli^a'd  to  take  the 
land,  and  to  consider  the  jiurchaser  as  his 
trustee,  but  may  elect  to  treat  him  as  his 
debtor,  and  to  claim  the  money  instead  of 
the  property.  As  a  conseipience  of  this, 
and  because  the  claim  to  a  resulting'  trust 
is  merely  that  of  an  e<pnty,  foun«led  upon 
the  presumptive  intention  of  the  parties, 
that  equity  may  be  rebutted,  even  by  parol 
evidence,  anil  cimim.'<tanccs  to  dciWit  it. 
If,  for  instance,  tlic  person  for  whose  bene- 
fit the  trust  wonld  otherwise  be  created, 
declares  that  the  ])urchase  was  not  made 
for  him,  or  if  lioth  jiarties  tR'at  it  as  a  pur- 
chase for  the  use  of  him  to  whom  the  con- 
veyance was  made,  no  resultin<,;  tnist  will 
arise."  But  the  partner  lias  no  interest  in 
the  estate  purcha.^itl  in  his  cojiartner's 
mime,  unless  it  was  intended  or  used  for 
j)artnershj])  ])MqK)ses.     Cox  v.  MeBumev, 

2  Sandf.  .561. 

(/')  It  has  l>ecn  held  that  real  estate, 
used  by  the  partners  fi)r  ])artner>lii]i  ])ur- 
poses,  but  conveyed  to  them  in  fee  as 
tenants  in  common,  and  aftcnvards  mort- 
gaged by  one  partner  without  notice  to  the 

[1371 


130- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


notice  that  the  land  is  partnership  property,  holds  it  chargeable 
with  the  debts  of  the  partnership,  although  be  had  no  knowl- 
edge of  those  debts,  (j) 


SECTION    III. 


OF   THE    GOOD-WILL. 


The  good-will  of  an  establishment  may  be  considered,  at 
least  for  some  purposes,  as  a  partnership  property.  If  it  could 
not  be  attached,  it  might  still  be  assigned  for  the  benefit  of  cred- 
itors. Perhaps  it  would  pass  to  the  assignees  of  a  bankrupt 
or  insolvent,  by  operation  of  law ;  but  not  so  as  to  carry  with 
it  any  obligation  of  further  labor  or  responsibility  on  the  part 
of  the  insolvent,  to  make  the  good-will  available,  (k) 


mortgagee  of  existing  partnersliip  debts, 
is  to  be  considered  real  estate  as  between 
the  mortgagee  and  the  partnership  credi- 
tors, and  liable  in  the  first  instance  to  the 
mortgagee.  McDermont  v.  Lam-cnce,  7 
S.  &  R.  438.  Tilghnnn,  C.  J.,  said: 
"  Land,  except  for  the  purpose  of  erect- 
ing necessary  bnildings,  is  not  naturally 
an  object  of  trade  or  commerce.  Yet 
there  is  no  doubt,  that  by  the  agreement 
of  the  ])artners,  it  may  lie  brought  into  the 
stock,  and  considered  as  personal  property 
so  far  as  concerns  themselves  and  their  heii'S 
and  personal  representatives.  But  if  a  con- 
veyance of  land  is  taken  to  partners  as 
tenants  in  common,  without  mention  of 
any  agreement  to  consider  it  as  stock,  and 
afterwards  a  stranger  purchases  from  one 
of  the  partners,  it  would  be  unjust  if  with- 
out notice  he  should  be  affected  by  any  pri- 
vate agreement."  See  also  Forde  v.  Iler- 
ron,  4  Munf.  321.  In  this  case,  Roane, 
■J.,  in  delivering  the  judgment  of  the  court, 
said :  "  The  court  is  of  opinion  that, 
.although  real  property,  pui-chased  with 
■the  effects  and  used  for  the  purposes  of  a 
mercantile  firm  or  copartneiy,  may,  in 
■equity,  be  liable  to  discharge  the  balance 
»due  from  the  company  to  any  partner,  in 

[138] 


preference  to  the  private  and  individual 
debt  of  any  other  partner,  it  is  neverthe- 
less competent  to  the  members  of  such 
copartnery  to  acquire  such  property 
jointly,  as  individuals,  or  to  lose  the  lien 
aforesaid,  (generally  existing  upon  the 
social  proi)crt3%)  l)y  acts  tending  to  mis- 
lead or  deceive  creditors  or  purchasers  in 
this  jiarticular."  8ee  also  Marvin  v. 
Trumlmll,  Wright,  (Ohio,)  386. 

( /)  Iloxie  V.  Carr,  1  Sunmer,  182. 

(k)  Dougherty  ?;.  Van  Nostrand,  Iloff. 
Ch.  11.  68.  It  has  been  held  that  the 
good-will  of  a  partnership  is  not  partner- 
ship stock,  and  sumves.  Hammond  v. 
Douglas,  5  Ves.  .539.  This  was  doubted 
in  Crawshay  v.  Collins,  1,5  Ves.  227. 
But  Hammond  v.  Douglas  was  sustained 
in  Lewis^r.  Langdon,  7  Simons,  421. 
The  good-will  of  an  establishment  is  re- 
cognized as  a  valuable  interest  in  equity. 
Kennedy  v.  Lee,  3  Meriv.  452  ;  Knott  v. 
Morgan,  2  Keen,  213;  Bell  v.  Locke,  8 
Paige,  75.  As  to  the  proper  meaning  of 
the  term  "  Good-will,"  as  used  in  trade, 
and  the  nature  and  extent  of  the  rights 
which  pass  by  an  assignment  of  the 
"  Good-will "  of  a  business,  see  Harrison 
V.  Gardner,  2  Madd.  198, 


CH.   XII.]  PARTNKllSIim  *131 


SECTION    IV. 

OF  THE  DELECTUS  PERSONARUM. 

The  partnership  must  be  voluntary  ;  and  therefore  no  partner 
and  no  majoiiity  of  partnijrs  can  introduce  a  new  member  with- 
out the  consent  of  the  others.  The  delecliis  personarum  is 
always  preserved;  and  if  one  partner  sells  out  his  interest  in 
*the  firm,  this  works  a  dissolution  of  the  partnership,  which 
can  only  be  renewed  by  the  agreement  of  all.  But  such  trans- 
fer may  give  to  a  bond  fide  purchaser  all  the  right  of  the  part- 
ner selling  out,  to  his  share  of  the  surplus  upon  a  settlement.  (/) 


SECTION    \. 

now   A   PARTNERSHIP   MAY   BE   FORMED. 

A    i)artnership  may  be  formed  by  deed,  or  by  parol;    and 
with   or  without  a  written  agreement,  {in)     But  the  law  will 

(/)  Gilmore  v.  Rlnck,  2  Fairfu'ltl,  48S  ;  fiinl  transfer  to  liim  of  a  ])artncr's  interest, 
Griswolil  V.  WaiMinirt'in,  15  Johns.  82  ;  ?oo  Matliewson  r.  Clarke,  G  How.  122; 
Moddewell  ••.  Ivecver,  8  W.  &  .S.  63.  Mason  c.  Connell,  1  Wliart.  .^Bl  ;  rutnam 
Tlie  assi;:nnient  of  , shares  in  tlic  stock  of  c.  Wise,!  Hill,  (N.  Y.)  2.'U.  See  also 
an  unini-orporatoil  company,  tlio  ccrtili-  Channel)'.  Fassitt,  16  Ohio,  IfiC  ;  Craw- 
catcs  of  wliicli  contaiiicil  a  provision  that  shay  »'.  Maiile,  1  Swaiist.  508. 
they  should  not  he  assiirned  without  the  (/n)  Owen  cr  jxirte,  7  E.  L.  &.  E.  303; 
consent  of  the  directors  .ind  trea.surer,  he-  Sniitli  r.  Tarlton,  2  ]5arl).  Ch.  IJ.  336. — 
inp  made  without  their  assent,  does  not  Althouirli  ordinary  partnerships  may  he 
make  the  assifrnec  a  partner,  or  enaMi'  foriMed  without  any  written  contract,  and 
liim  to  hriufi  a  hill  in  equity  to  coin]>il  the  acts  and  words  of  the.  parties  are  or- 
the  partners  to  account.  Kin;rn\an  c.  dinarily  sullicient  for  that  j)urpose,  yet  if 
Spurr,  7  Tick.  23.T.  PniLrr,  C  J.,  said  :  the  ohject  of  the  com]iaiiy  he  to  speculate 
"It  is  a  settled  jtrincipic,  that  a  company  in  the  purciiase  and  sale  of  l.-ind,  the  jiosi- 
or  copartncrsidp  cannot  he  compelled  to  tive  rules  of  law  and  the  Statute  of  Frauds 
receive  a  stranjrcr  into  tlii'irleafjue.  These  rc(piire  the  ])aitnership  a;:recinent  to  he  in 
associations  are  founiled  in  ])ersonal  con-  writinjr,  and  a  coiu't  of  eipiity  >vill  not  cn- 
i\ih-nix'  :\ui\  dt/erliis  jii'isoiinnim.  Itisevi-n  force  a  pand  contract  ftu"  .such  a  purpose, 
held,  that  an  executor  or  iieir  of  one  of  Smitli  r.  I{urnham,3  Sunnier,  43.')  ;  Ilen- 
thc  mcmhers  does  nut  hccome  a  niomher,  derson  v.  Hudson,  1  Munf.  510.  Itidj^- 
unlcs.s  hy  consent  or  1)V  tiie  terms  of  the  way's  Appeal,  15  Peun.  177.  But  this  is 
com])act."  Compare  tliis  case  with  Al-  said  in  a  late  case  to  apply  oidy  to  the  con- 
vord  r.  Smith,  5  Tick.  232.  See  Murray  tract  lietween  the  ])arties,  and  lliat  sls  to 
f.  UofTcrt,  14  Johns.  318;  Manpiand  v.  third  jiersons  the  partnership  may  he 
N.  Y.  Man.  Co.  17  Johns.  535.  That  no  proved  like  any  other.  In  n-  Warren,  Da- 
partner  can  be  introduced  hy  mere  sale  vies,  320. —  If  articles  of  ]iarincr>liip  exist, 

[139] 


132* 


THE    LAW    OF   CONTRACTS. 


[book  I 


not  give  effect  to  an  agreement  to  form  a  partnership  for  illegal 
transactions  or  purposes,  {n)  An  action  cannot  be  *maintained 
for  the  breach  of  an  agreement  to  become  a  partner,  unless  the 
terms  of  the  intended  partnership  were  specific  and  are  clearly- 
proved,  (o)  But  where  a  partner  in  an  existing  firm  agreed 
that  a  certain  person  should  be  received  as  a  partner  in  that  firm, 
it  was  held  that  an  action  might  be  maintained  for  a  breach  of 
that  agreement,  and  some  uncertainty  in  the  •terms  of  the 
agreement,  was  not  a  sutficient  defence,  (p) 

A  partnership,  in  general,  is  constituted  between  individuals, 
by  an  agreement  to  enter  together  into  a  general  or  a  particular 
business,  and  share  the  profits  and  the  losses  thereof,  (q)     And 


a  creditor  of  tlic  firm  may  still  prove  the 
partnership  by  parol.  Gritfin  v.  Doc,  12 
Ala.  783.  But  the  evidence  of  a  partner- 
ship must  be  submitted  to  the  jury.  Drake 
V.  Elwyn,  1  Caincs,  184.  For  the  exist- 
ence of  a  partnership  or  joint  connection  is 
a  question  of  fact.  Beecham  v.  Dodd,  3  Ilar- 
ring.  48.5.  Whether  the  terms  of  the  agree- 
ment and  the  facts  as  found  by  the  jury 
constitute  a  partnership,  is  a  question  of 
law.  Id. ;  Evcritt  I'.  Chapman,  6  Conn. 
347  ;  Terrill  v.  Kichards,  1  Nott  &  Mc- 
Cord,  20 ;  Gilijin  v.  Temple,  4  Harring. 
190. 

(n)  Armstrong  v.  Lewis,  2  Cr.  &  M. 
274  ;  Ewing  r.  Osbaldiston,  2  My.  &  Cr. 
53.  But  wiiere  two  persons  carried  on  the 
business  of  pawnbrokers  under  a  deed  of 
partnership ;  and  the  business  was  con- 
ducted solely  in  the  name  of  one,  and  he 
onl)'  was  licensed  :  Semb/e,  that  although 
the  parties  might  have  made  themselves 
liable  to  penalties  imposed  by  the  statute 
39  &  40  Geo.  3,  c.  99,  yet,  that  it  being  no 
part  of  the  contract  to  carry  on  the  part- 
nershi])  in  such  a  manner  as  to  contravene 
the  law,  the  contract  was  not  void.  If 
however  a  collateral  agreement  so  to  con- 
duct the  partnership  had  been  proved,  its 
illegality  would  have  prevented  cither 
jiarty  from  acquiring  any  right  under  the 
partnership. 

(o)  Figes  V.  Cutler,  3  Starkie,  139. 

(p)  McNeill  V.  l{cid,  9  Bing.  68.  Tin- 
dal,  C.  J.,  said  :  "  The  other  point  for  our 
consideration  under  this  head  of  objection 
is,  that  the  contract  is  too  vague,  too  un- 
certain, as  to  the  term  of  partnership, 
amount  of  capital  to  be  contrilnited,  and 
the  like,  to  be  the  subject  of  estimate  by  a 
jury.     But  is  that  a  correct  statement  of 

[140] 


the  evidence  ?  It  is  plain  that  the  plaintiff 
considered,  and  that  the  defendant  led 
him  to  consider,  that  he  was  contracting 
for  a  fourtli  part  of  the  defendant's  busi- 
ness, in  the  room  of  Muspratt,  who  had 
quitted  it;  and  that  both  the  defendant 
and  his  agent,  Carstairs,  knew  the  precise 
extent  and  value  of  such  an  interest. 
That  being  so,  the  case  is  clear  of  tiie  dif- 
ficulty which  arose  in  Figes  v.  Cutler, 
where  the  evidence  was  too  indistinct  to 
enable  the  jury  to  come  to  any  conclusion. 
It  is  unnecessary  to  advert  to  the  cases  in 
equity,  because  this  is  not  a  proceeding  to 
enforce  performance  of  a  contract,  but  to 
obtain  damages  for  the  breach  of  it." 

(([)  Langdale,  ex  parte,  18  Ves.  300. 
In  this  case,  the  Lord  Chancellor  (Eldon), 
said :  "  The  criterion  of  a  partnership  is, 
whether  the  parties  are  to  participate  in 
profit.  That  has  been  the  question  ever 
since  the  case  of  Groves  v.  Smith."  If 
the  actual  contract  give  a  claim  upon  the 
]n-ofits,  or  the  application  of  them,  that  is 
partnership.  Sec  Ex  parte  Hamper,  17 
Ves.  403,  Sumner's  Ed.  and  note,  p.  404  ; 
Cushman  v.  Bailev,  1  Hill,  .'J26  ;  Belknap 
V.  Wendell,  1  Foster,  175;  Catskill  Bank 
r.  Gray,  14  Barb.  474.  —  A  participation 
in  the' uncertain  profits  of  trade,  renders 
one  a  copartner  in  respect  of  the  liabilities 
of  the  concern  to  third  persons.  Oakley 
V.  Asi)inwall,  2  Sandf.  Sup.  Ct.  R.  7.  See 
Bucknam  !?.  I3arnum,  15  Conn.  67  ;  Cush- 
man i\  Bailey,  1  Hill,  526.  See  also,  on 
this  subject,  Mair  v.  Glennic,  4  M.  &  Sel. 
240 ;  Siuith  v.  Watson,  2  B.  &  Cr.  401  ; 
Hcsketh  v.  Blanchard,  4  East,  144  ;  Reidt?. 
Hollinshead,  4  B.  &  Cr.  867  ;  Everitt  v. 
Chapman,  6  Conn.  347  ;  Harding  v.  Fox- 
croft,  6   Greeul.   76;    Thorndike  v.  De 


CH.   XII.] 


PARTNERSHIP. 


*133-*134 


this,  however  unequal  tlie  shares  may  be,  *and  even  if  one  of 
the  parties  has  no  direct  interest  or  jDroperty  in  the  capital  of 
the  firm.  In  the  absence  of  specific  'stipulations  or  controlling 
evidence,  the  presumption  of  law  is,  that  the  partners  share  the 
profits  equally.  (/•)  The  articles  may  provide  or  omit  a  period 
for  the  continuance  of  the  partnership.  But  if  such  a  period  be 
provided  and  the  time  expires,  and  then  the  partnership  is  re- 
newed by  agreement,  it  has  been  held  that  the  m;w  partnership 
is  founded  upon  the  same  terms  as  the  old  one,  in  the  absence 
of  opposing  testimony,  (s) 

It  is  certain  that  persons  may  be  copartners  as  to  third  par- 
ties, and  brought  within  all  the  liabilities  of  partnership  as  to 
them,  who  are  not  partners  between  themselves,  (t)  For  whether 
they  are  partners  as  between  themselves  is  determined  chiefly  by 
reference  to  their  own  intention  ;  but  whether  they  are  partners 
in  respect  to  third  parties  is  determined  by  a  consideration  of 
this  intention,  and  also  of  that  actual  participation  of  profits 
which  is  held  to  require  of  them  to  participate  in  the  losses,  be- 
cause it  diminishes  the  fund  from  which  the  losses  are  to  be 
paid; (7/)   and  also  of  the  way  and  Mcgree  in  which  the  person 


Wolf,  G  rir-k.  124;  Jackson  r.  Kohinson, 
3  Mason,  138;  Gritlitli  v.  Biilliim,  22 
Venn.  181. 

(/)  IViKock  V.  rcacock,  16  Ves.  49; 
FaiTiir  c.  Hfswifk,  1  Jlood.  &  Rolt.  527  ; 
Goiilil  '•.  (Joiild,  i>  Wend.  2G3.  lint  sco 
Thoinpson  r.  Williuni.-on,  7  Uli^ch,  432. 

(s)  Dickin.son  v.  Survivors  of  Bolds 
ami  Kliodcs,  3  Desaus.  ."jOI.  This  was  a 
bill  in  f(|uity  for  an  account  of  the  jjrolits 
of  a  coitartnorslnp.  Tlic  only  (|ncstion  in 
tlie  case  was  as  to  how  louj;  the  paitner- 
sliip  continued.  It  appeareil  hy  the  oriir- 
inal  articles  that  it  conunenced  in  1787, 
under  an  a^rrcenicnt  to  continue  seven 
years.  After  tlie  expiration  of  tiiat  period, 
the  defendants,  l)ein;;  desirous  of  renewiiiiX 
the  connection,  tran-;niittcil  to  the  coni- 
]ilainant  in  London,  where  he  resided,  the 
articles  of  copartnership,  with  an  indorse- 
ment of  a  renewal  of  them  for  another 
term  of  seven  years,  to  lonimence  fi-T)m 
the  cx])iration  ol"  the  former  one.  Tlie 
complaiiumt,  in  answer  to  this  c()mmui\i- 
cation,  said  he  wnuhl  aiirec  to  the  |iropo- 
sition,  on  the  hap|ienin;;  of  a  certain  con- 
tinpncy.  It  did  not  distinctly  appear 
whether  the  eoutinyency  ha|)j)eiicd  or  not. 


But  it  did  appear  that  the  complainant 
contiinied  to  discharge  his  duties  as  a 
partner  in  the  same  manner  as  i'unnerly. 
On  this  o\ idciue  the  defendants  contended 
that  the  partnership  was  not  rencAvcd  for 
seven  jcars,  hut  was  detenninable  at  the 
pleasure  of  either  i)arty.  But  the  court 
Iteld  that  the  complainant's  contiiniini^  to 
dischari^e  his  former  duties  on  the  orijiinal 
terms,  was  a  sulistantial  acciptance  of  the 
(Kfendams'  i)roposition,  and  so  the  ]iart- 
nership  was  renewed  for  another  term  of 
seven  years. 

(/)  If  ])artics  are  so  associated  in  busi- 
ness as  to  make  them  i)artncrs  with  respect 
to  third  ])ersons,  init  expressly  ai;ree  that 
a  ])artnership  sliall  not  exist,  they  arc  not 
])artiiers  as  hetween  themselvis.  (iill  v. 
Knhn,  G  .Ser;;.  v^  Uawle,  333  ;  llesketh  v. 
Blanchard,  4  Kast,  144.  If  however,  par- 
tics  hy  their  conduct,  Inive  treated  their 
contract  as  a  ])artner.ship,  and  have  so 
held  themselves  out  to  the  world,  it  is  un- 
necessary 10  put  a  I'onstrnction  upon  the 
V.  littcii  contract, as  hetween  theni-el  vi  s  and 
other>.    Stearns  r.  Haven,  14  \'crm.  540. 

(i')  As  to  what  j)articipation  of  i)roHt3 
makes  one  a  partner,  see  hijhi,  n.  (m). 

[141] 


134-  THE   LAW   OF   CONTRACTS.  [bOOK   I. 

sought  to  be  charged  as  partner  has  been  held  out  to  the  world 
as  such,  so  that  the  person  seeking  to  charge  him  had  good 
reason  to  believe  a  debt  of  the  partnership  carried  with  it  his 
responsibility,  (uu) 

If  one  lends  money  to  be  used  by  the  borrower  in  his  busi- 
ness, the  lender  to  receive  interest,  and  in  addition  thereto  a 
share  of  the  profits  of  the  business,  a  question  may  arise  whether 
he  is  a  lender  on  usury,  or  a  partner.  He  would  seem  indeed 
to  be  both  ;  only  a  usurer  as  between  the  lender  and  borrower, 
but  a  partner  as  to  third  persons ;  and  it  may  depend  upon  the 
manner  in  which  the  question  is  presented,  whether  the  char- 
acter of  a  usurer  is  to  be  fixed  upon  him.  If  he  sues  the  bor- 
rower for  repayment  of  the  money,  it  seems  to  be  competent 
for  the  borrower  to  allege  in  his  defence  the  usurious  character 
of  the  loan,  (uv)  But  if  a  third  party,  who  is  a  creditor  of  the 
borrower,  upon  a  debt  which  has  arisen  in  the  business  in 
which  the  money  was  lent  to  be  used,  sues  the  lender  as  a  part- 
ner, on  the  ground  that  he  took  away  profits  to  which  the  cred- 
itor might  look  for  his  debt,  the  lender  will  be  held  as  such 
partner,  and  it  is  not  competent  for  him  to  set  up  his  contract 
as  usurious,  for  he  may  not  rest  his  defence  upon  his  own 
wrong,  (v) 

A  question  has  frequently  arisen  where  a  clerk,  agent,  or 
salesman  has  been  taken  into  partnership,  to  render  in  fact  the 
same  services  as  before,  or  a  person  received  to  render  such 
services  who  had  not  been  previously  employed,  upon  an  agree- 
ment that  the  services  shall  be  compensated,  not  by  a  salary,  but 
by  a  share  of  the  profits.  Is  such  person  a  partner  as  to  third 
parties  ?  It  will  appear,  by  the  cases  cited  in  the  notes,  that 
there  is  some  uncertainty  upon  this  point.  From  many  of  the 
cases  it  would  seem  that  a  rule  of  this  kind  was  adopted ; 
namely,  that  where  the  bargain  was  that  A  should  receive  for 
his  services  one  tenth  of  the  profits,  this  made  him  a  partner ; 

(uu)  Cottrill  V.  Vanduzen,  22  Verm.  (v)  Grace  v.  Smith,  2  W.  Bl.  998  ; 
511 ;  Gilpin  v.  Temple,  4  Ilarring.  90;  Morse  v.  Wilson,  4  1).  &  E.  353  ;  Case  of 
Furber  !'.  Carter,  11   Humph.  271.  Lane,   Fraser   &   Boj-lston,  cited    in    17 

(uv)    Morse   v.  Wilson,  4    T.  R.  353.     Vesey,  405,  Sumner's  edition. 
See  also,  Gilpin  v.  Enderbcy,  5  B.  &  Aid. 
954,  S.  C.  5  Moore,  571. 
[142] 


CII.   XII.]  PARTNERSUIP.  *135 

but  if  he  was  to  receive  a  salary,  equal  in  amount  to  the  one 
tenth  part  of  the  profits,  this  did  not  make  him  a  partner.    This 
rule  is   somewhat  technical,  but  not  altogether  so;  and  would 
doubtless   be    applied  *to    such    a  contract  now,  if  the  words 
used  were  not   accom])anied   by   other    language,  or  by  facts 
which  required,  or  at  least  justified  a  different  interpretation. 
Whether  a  person  were  a  partner  with  others,  should  be  deter- 
mined in   this   as  in  other  cases  by  a  consideration  of  their  in- 
tention, and  of  the  way  in  which  the  alleged  partner  was  held 
forth   to   the  public,  and  the  interest  and  power  he  had  in  or 
over  the  fund  to  which  the  creditors  of  the  partnership  could 
look  for  their  security.     Where  A  employs  B,  and  agrees  to 
give  him  in  lieu  of  wages,  or  by  way  of  wages,  a  certain  pro- 
portion of  A's  profits,  this  need  not  give  B  any  right  to  control 
the   business   or   interfere  therein  in   any  way.     They  are  not 
then   necessarily  partners ;  because  there  is  no  reciprocity  be- 
tween them  :  unless  some  other  sufficient  reason  exists  for  so 
treating  them.   But  the  reason  usually  alleged  as  that  for  which 
he  who  shares  in   the  profits  is  held  liable  as  a  partner  for  the 
debts,  namely,  that  he  has  diminished  the  fund  from  which  the 
debts  are  to  b(^  paid,  seems  to  be  regarded  as  not  applicable  to 
one  who  takes  wages,  though   they  may  be  measured  by  the 
))rofits ;  and  if  this  is  the  bargain  in  fact,  the  njaimer  of  its  ex- 
j)r('ssi<Mi   would  seem   not  to   be  material.     It  is  certain   that 
while  the  salesman  took  a  thousand  dollars  a  year  as  wages  for 
his  services,  this  did  not  make  him   a  partner.     The   fund  to 
pay  debts  grew  up  in  some  measure  from  his  services,  and  he 
was  entitled  to  be  paid  out  of  it  for  them;  and  if  he  now  has, 
instead  of  a  fixed  salary,  a  share  of  the  profits,  it  might  still  be 
clear   from   the   contract  and  circumstances,  that  the  arrange- 
ment was  intended  not  to  pay  him  more  than  his  services  were 
worth,  but  only  to  make   his  wages  dependent  in  some  degree 
upon  his  services,  and  so  to  stimulate  him  to  make  the  profits, 
or  the  general  fund  to  which  the  creditors  must  look,  as  large 
as  possible.     Lord    Eldon's   reason    for  the  rule  seems  to  be, 
"  that  where  the  salesman    has  an   amount  of  money  equal  to 
one  tenth  of  the   profits,  this  gives  him  no  action  of  account, 
and  therefore  he  is  not  a  partner ;  but  where  he  is  to  receive 

[143] 


136* 


TnE    LAW    OF    CONTRACTS. 


[book  I. 


one  tenth  of  the  protits,  this  gives  him  an  action  of  account 
and  therefore  makes  him  a  partner;"  but  this  seems  open  to 
the  objection,  that  the  question  of  partnership  is  prior,  and 
should  determine  the  right  of  account;  whereas  this  reason 
would  regard  the  right  of  account  as  prior,  *and  determining 
the  question  of  partnership.  (?r)      Lord  Eldon  says,  "  the  cases 


(w)  It  seems  to  be  well  settled,  that  a 
contract  to  pay  one  employed  in  certain 
business  a  salary,  C(jiuil  in  ainutiitt  to  a 
certain  proportion  of"  the  profits,  will 
not  make  such  person  a_  partner.  Tlie 
question  of  pi-otits  is  of  importance  only 
in  determining  the  amount  of  salary. 
Neither  will  a  certain  salary,  together  with 
a  commission  of  a  certain  per  cent,  uijou 
the  profits,  make  the  receiver  a  partner. 
Miller  v.  Bartlet,  15  S.  &  K.  1.37  ;  Stocker 
V.  Brockelbank,  .'>  E.  L.  &  E.  67  ;  iJunluun 
r.  Ivogers,  1  Barr,  255 ;  Denny  r.  Cabot, 
6  Met";  82  ;  Hodgman  v.  Smith,  1.3  Barli. 
302;  Brockway  c.  Burnap,  16  id.  30'J. 
And  tiie  better  opinion  seems  now  to  be, 
that  an  agreement  by  which  a  person  is  to 
receive  a  certain  portion  of  the  profits  for 
his  salary,  does  not  constitute  a  partner- 
ship, such  person  having  no  specific  in- 
terest in  the  jjrofits  tlicmselves,  as  profits. 
See  Loomis  v.  JMarsliall,  12  Conn.  69; 
Burckle  v.  Eckart,  1  Dcnio,  337,  S.  C.  3 
Comst.  132  ;  Vaiulerburgh  r.  Hull,  20 
Wend.  70  ;  Ogden  v.  Astor,  4  Sandf.  311  ; 
Newman  c.  Bean,  1  Foster,  93  ;  IJeed  v. 
Mui;phy,  2  Greene,  (Iowa,)  574  ;  Goode  v. 
M'Cartney,  10  Tex.  193;  Glenn  v.  Gill, 
2  Maryl.  1  ;  Drake  v.  llamey,  3  Rich.  37  ; 
Bartleh  r.  Jones,  2  Strob.  471  ;  Hodges  v. 
Dawes,  6  Ala.  215;  Wilkinson  v.  Jett,  7 
Leigh,  115.  But  see  Heyhoe  v.  Burge, 
9  Com.  Bench,  431  ;  Taylor  r.  Terme,  3 
Har.  &  Johns.  505  ;  Evcritt  i'.  Chapman, 
6  Conn.  351.  —  In  Bradley  r.  Wliitc,  10 
Mete.  303,  it  was  held  that  an  agreement 
between  D.  and  W.,  by  which  D.  was  to 
furnish  goods  for  a  store,  and  pay  all  the 
expenses,  and  W.  was  to  transact  the 
business  of  the  store  and  receive  half  of 
the  ])rofits,  as  a  nmijieiisation  fur  his  ser- 
vices, did  not  constitute  W.  a  p.irtner,  and 
that  in  an  action  against  ]).  &  W.  for 
goods  sold  and  delivered  to  D.,  W.  was 
not  liable.  See  also,  Ambler  r.  Bradley, 
6  Verm.  119;  Blanchard  ;-.  Coolidgc,  22 
Pick.  151.  This  question  also  underwent 
much  discussion  in  ])enny  r.  Cabot,  6 
Mete.  82.  The  court  there  said:  "On 
this  point  the  distinction  appears  to  us  to 

[144] 


be  well  established,  that  a  party  who  par- 
ticipates in  the  profits  of  a  trade  or  busi- 
ness, and  has  an  interest  in  the  profits,  as 
profits,  is  chargeable  as  a  partner  with  re- 
spect to  tliird  persons ;  but  if  he  is  only 
entitled  to  receive  a  certain  sum  of  money 
in  proportion  to  a  given  quantum  of  the 
profits,  as  a  compensation  for  his  labor 
and  services,  he  is  not  thereby  lia1)le  to  be 
charged  as  a  ])artner.  It  is  true  that 
Lord  Eldon  has  expressed  a  douin  of  the 
soundness  of  this  distinction.  In  Ex  parte 
Hamper,  1 7  Yes.  404,  he  says,  '  The  cases 
have  gone  to  this  nicety,  (ui)on  a  distinc- 
tion so  thin,  that  I  cannot  state  it  as  estab- 
lished upon  due  consideration,)  that  if  a 
trader  agrees  to  pay  another  person,  for 
his  labor  in  the  concern,  a  sum  of  money, 
even  in  proportion  to  the  profits,  ecpial  to 
a  certain  slvare,  tliat  will  not  make  him  a 
partner;  but  if  he  has  a  specilic  interest 
in  the  profits  themselves,  as  profits,  he  is 
a  partner.'  He  admits,  however,  that  the 
law  of  partnership  is  thus  settled.  Ex 
parte  Watson,  19  Ves.  459  ;  Ex  parte 
Eowlandson,  1  Rose,  92.  And  this  dis- 
tinction has  been  confirmed  by  numerous 
subsequent  decisions.  In  Cutler  r.  Win- 
sor,  6  Pick.  335,  it  was  decided,  that  an 
agreement  between  the  owner  and  master 
of  a  vessel  to  divide  the  earnings  of  the 
vessel  between  them,  after  deducting  cer- 
tain fixed  charges,  did  not  render  them 
liable  to  third  ])ersons  as  partners.  In 
that  case  the  deduction  was  from  the  gross 
earnings.  And  the  agreement  is  sul)Stan- 
tially  the  same  in  the  present  case.  For 
although,  in  terms,  the  agreement  was  to 
pay  Cooper  one  third  of  the  net  earnings, 
vet  that  is  explained  by  the  words  imme- 
diately following,  by  "which  it  ai)i)ears 
that  Co()])er  was  entitled  to  one  third  of 
the  gross  profits,  after  deducting  certain 
specified  charges  ;  and  that  in  no  event 
was  he  to  be  liable  for  any  losses.  So  the 
agreenu'ut  in  this  case  is  ]>recisely  similar 
to  that  in  Loomis  r.  Marshall,  12  Conn. 
69.  In  that  case,  French  nud  Hubbell 
agreed  with  Marshall  to  manufacture  his 
wool  into  cloth,  and   he  agreed  to  give 


CH.  XII.] 


PARTNERSHIP. 


-136 


have  gone  to  this  nicety,"  and  speaks  of  the  rule  above  men- 
tioned as  settled  ;  but  we  have  not  succeeded  in  finding  in  the 


them  for  their  services,  and  the  materials 
they  should  furnish,  a  certain  proportion 
of  '  the  net  proceeds  of  all  the  cloths, 
after  deducting  incidental  and  nccessarj- 
expenses  of  transportinjr  and  other  proper 
charges  of  sale.'  It  was  not  expressed  in 
terms  to  he  for  such  compensation,  hut 
such  the  court  held  was  the  lejral  meaning 
of  the  agreement.  This  case  was  very 
ahly  discussed  hy  the  learned  judge  who 
delivered  the  opinion  of  the  coun,  and,  as 
it  seems  to  us,  the  decision  is  fully  sus- 
tained by  well-estahlishcd  principles.  So 
in  Keynolds  i>.  Toppan,  15  Mass.  370,  it 
was  agreed  between  the  master  and  owner 
of  a  vessel,  that  the  latter  was  to  receive 
two  fifths  of  the  net  earnings  of  the  vessel ; 
and  it  was  held  that  tliis  diil  not  render 
liim  liable  as  a  jiartner.  So  in  Vander- 
burgh r\  Hull,  20  Wend.  70,  where  a 
person  was  employed  as  an  agent  in  con- 
ducting the  business  of  a  foundry,  at  a 
salary  of  $300  ;  and  in  addition  thereto  he 
was  to  receive  one  third  of  the  profits  of 
the  foundry,  if  any  were  made  ;  and  he 
had  nothing  to  do  with  the  losses  ;  it  was 
lield,  that  the  agent  was  not,  either  as  to 
his  emplovers  or  third  pei"sons,  a  partner. 
So  in  Turner  v.  IJissell,  14  Pick.  192.  it 
was  a;:reed  thiit  Bissell  was  to  furnish 
wool  to  be  worked  into  satinets  by  Root, 
who  was  to  HikI  and  pay  for  warps  for  the 
same,  and  Bissell  was  to  pay  Hoot  for 
working  che  wool,  Hnding  the  warps,  &c., 
40  per  cent.  f)n  the  sales  of  the  satinets. 
It  was  hebl  that  the  defendants  were  not 
partners  intir  nr,  nor  as  to  third  persons." 
—  And  in  further  ex])osition  of  this  prin- 
ciple, it  is  said  :  "If  a  person  stipulate  for 
a  share  in  the  jirofits,  so  as  to  entitle  him 
to  an  account,  and  to  give  him  a  specific 
lien,  or  a  jirefi-rence  in  payment,  over  all 
crcflitors,  and  giving  him  the  full  benefit 
of  the  profits  of  tiie  business,  without  any 
corresponding  risk  in  case  of  loss  ;  justice 
to  the  other  creditors  would  seem  to  re- 
quire that  he  should  l)e  holden  to  be  liable 
to  third  persons  as  a  partner.  IJut  where 
a  party  is  to  receive  a  compensation  for 
his  labor,  in  projiortion  to  the  profits  of 
the  business,  without  h:iving  any  sjiecifir 
lien  upon  such  profits,  to  the  exclusion  of 
fttlier  creditors,  there  seems  to  be  no  rea- 
son for  holding  him  liable,  as  a  partner, 
even  to  third  persons.  This  distinction 
is  sujiported  by  Cary,  in  his  treatise  on 
Partnership,  and  ChancellorWahvorth  con- 

VOL.  I.  13 


siders  it  as  a  sound  one,  in  Champion  v. 
Bostick,  IS  Wend.  184.  And  it  is  adopted 
with  approbation  by  Chancellor  Kent,  in 
his  Commentaries.  3  Kent,  Com.  (4th 
ed.)  25,  note.  The  remarks  of  Judge 
Story  on  these  distinctions  are  very 
forcible,  and  seem  to  us  to  be  founded  on 
sound  principles."  "  The  question  in  all 
this  class  of  cases,"  he  says,  "  is  first  to 
arrive  at  the  intention  of  the  parties  inter 
sexe ;  and  secondly,  if  between  themselves 
there  is  no  intention  to  create  a  i)artner- 
ship,  whether  there  is  any  stubborn  rule 
of  law,  which  will  nevertheless,  as  to  third 
persons,  make  a  mere  participation  in  the 
profits  conclusive  that  there  is  a  partner- 
shi|)."  "It  is  said,  ' every  man  who  has 
a  share  in  tlie  profits  of  a  trade  ought  also 
to  bear  his  sliare  in  the  loss,  as  a  partner.' 
In  a  just  sense  this  language  is  sufficiently 
expressive  of  the  general  rule  of  law  ;  but 
it  is  assuming  the  very  point  in  contro- 
versy to  assert  that  it  is  universally  true, 
or  that  there  are  no  qualifications,  or 
limitations,  or  exceptions  to  it.  On  the 
contrary,  the  very  cases  alluded  to  by 
Lord  KIdon,  in  the  clearest  terms  estab- 
lish that  such  qualifications,  limitations, 
and  exceptions,  do  exist."  Story  on  Part, 
sect.  36.  "Admitting,  however,  that  a 
particijiation  in  the  profits  will  ordinarily 
establish  the  existence  of  a  partnei'sliip 
between  the  parties,  in  favor  of  third  j)er- 
sons,  in  the  absence  of  all  other  opposing 
circumstances;  the  question  is  whether 
the  circumstances,  under  which  the  jtar- 
ticipation  exists,  may  not  qualify  the  pre- 
sumption, and  satisfactorily  prove  that  the 
portion  of  the  profits  is  taken,  not  in  the 
character  of  a  partner,  hut  in  the  char- 
acter of  an  agent,  as  a  mere  compensation 
for  labor  and  services.  If  the  latter  be 
the  tnie  predicament  of  the  party,  and  the 
whole  transaction  admits,  nay  rc<iuires, 
that  very  interpretation,  where  is  the  rule 
of  law  which  f'orces  upon  the  transaction 
the  opposite  interpretation,  and  R-quires 
the  court  to  pronounce  an  agency  to  be  a 
partnership,  contrary  to  the  truth  of  the 
facts,  and  the  intention  of  the  parties  ? 
Now  it  is  precisely  upon  this  very  ground, 
that  no  such  absolute  rule  exists,  and 
that  it  is  a  mere  presumption  of  law, 
which  prevails  in  the  absence  of  controll- 
ing circumstances,  but  is  confrolied  by 
them,  that  the  doctrine  in  the  authorities 
alluded  to  is  founded  :  "  "  and  there  is  no 

[145  J 


137*-138* 


THE    LAW    OF   CONTRACTS. 


[book  I. 


English  reports,  previous  cases  or  authorities  which  can  be  re- 
garded as  establishing  this  rule. 

*It  is  sometimes  difficult  to  distinguish  between  partnership 
and  tenancy  in  common  ;  and  this  question  is  often  important 
as  determining  between  the  adverse  rights  of  the  creditors  of  the 
individual  owners,  and  those  of  persons  who  claim  as  partner- 
ship creditors.  In  general,  if  the  property  owned  jointly  is  so 
owned  for  the  purpose  of  a  joint  business,  and  is  so  used,  and 
the  profits  resulting  form  a 'common  fund,  it  is  partnership  prop- 
erty ;  otherwise  not.  (x) 


hardship  upon  third  persons,  since  the 
party  does  not  hold  himself  out  as  more 
than  an  agent.  This  qualification  of  the 
rule  (tlie  rule  itself  being  built  upon  an 
ai'tificial  foundation,)  is  in  truth  but  carry- 
ing into  effect  the  real  intention  of  the 
parties,  and  would  seem  far  more  con- 
sonant to  justice  and  equity  than  to  en- 
force an  ojiposite  doctrine,  which  must 
always  carry  in  its  train  serious  mischiefs 
or  ruinous  results,  never  contemplated  by 
the  parties."     Sect.  38. 

(x)  Post  V.  Kimbcrly,  9  Johns.  470  ; 
Murray  I'.  Bogcrt,  14  id.  318;  Hawes  v. 
Tillinghast,  1  Gray,  289.  Where  the 
owners  of  land  let  it,  agreeing  with  the 
occupiers  to  receive  one  half  of  the  grain, 
&c.,  in  consideration  of  the  occupancy,  the 
owners  and  occupiers,  together  with  other 
persons  whom  tlie  occupiers  admitted  to  a 
share  in  the  grain  in  consideration  of  their 
doing  a  portion  of  the  farm  work,  were 
held  to  be  tenants  in  common  of  the  grain. 
Putnam  r.  AVise,  1  Hill,  234  ;  Caswell  v. 
Districh,  1.5  Wend.  379;  Walker  v.  Pitts, 
24  Pick.  191  ;  Frost  v.  Kellogg,  23  Venn. 
308;  Case  v.  Hart,  11  Ohio,  .364  ;  Smyth 
V.  Tankerslcy,  20  Ala.  212;  Jackson'  v. 
Eobinson,  3  Mason,  138.  A  and  B  were 
tenants  in  common  with  C  and  D  of  a  ship 
in  certain  proportions,  and  purchased  a 
cargo,  by  an  agreement,  on  their  account 
in  the  like  proportions  for  a  voj-age,  and 
consigned  the  same  to  the  master  for  sale 
and  returns ;  it  was  held  that  they  were 
tenants  in  common  of  the  cargo,  and  not 
partners.  Slori/,  J.  :  "  It  does  not  by  any 
means  follow  because  the  purchase  was 
made  for  the  accotmt  of  all,  or  the  ship- 
ment was  made  in  the  names  of  all,  that 
this  constituted  tliem  partners  in  the  sense 
of  a  joint  interest.     Thev  might  authorize 

[UG] 


a  common  agent  to  purchase  or  ship  goods 
for  them  according  to  their  several  and 
separate  interests,  without  involving  them- 
selves in  ajoint  partnership  responsibility. 
In  my  judgment  there  was  no  community 
of  interest  in  the  cargo,  as  partners.  It 
appears  from  the  admissions  of  the  parties, 
as  well  as  the  proofs,  that  they  never  were, 
nor  designed  to  be  partners  ;  and  that  they 
held  their  titles  to  undivided  portions  of 
the  cargo,  not  as  a  common,  but  as  a  sep- 
arate interest.  They  were,  therefore,  ten- 
ants in  common  of  the  cargo,  having  no 
general  community  of  the  profit  and  loss, 
but  only  a  proportion  according  to  their 
separate  interests.  If  either  had  died,  his 
share  would  not  have  survived  to  the 
othei-s."  Harding  v.  Foxcroft,  6  Greenl. 
76.  In  this  case  it  was  held  that  the  joint 
owners  of  a  vessel,  who  agreed  to  send  her 
on  a  foreign  voyage  for  their  mutual  bene- 
fit—  a  part  of  the  cargo  being  purchased 
by  each  separately,  and  a  jiart  liy  both 
jointly  —  were  tenants  in  common  of  the 
property,  and  not  ])artners ;  and  that 
therefore  a  creditor  of  both  owners,  for 
cordage  of  the  vessel,  was  not  entitled  to 
priority  in  payment,  out  of  the  vessel  and 
cargo,  against  the  separate  creditors  of 
either.  Mellen,  C.  J.,  said :  "  It  is  true 
some  parts  of  the  cargo  wei-e  purchased  by 
the  owners  severally,  and  put  on  board, 
and  some  parts  were  purchased  on  joint 
account ;  but  to  constitute  a  partnership, 
persons  must  not  only  I)e  jointly  concerned 
in  the  purchase,  but  jointly  concerned  in 
the  future  sale."  See  Tliorndike  r.  De- 
Wolf,  6  Pick.  124.  Where  one  party 
furnishes  a  boat  and  the  other  sails  it,  an 
agreement  to  divide  the  gross  eaniings 
does  not  constitute  a  partnership.  Bow- 
man V.  Bailey,  10  Ycrm.  170. 


CH.  XII.] 


PARTNERSHIP. 


*139-*140 


•SECTION    VI. 

OF   THE   RIGHT   OF   ACTION   BETWEEN   PARTNERS. 

It  is  generally  true  that  one  partner  cannot  sue  a  copartner 
at  Law  in  respect  to  any  matter  growing  out  of  the  transactions 
of  the  partnership,  and  involving  the  examination  of  the  part- 
nership accounts  ;  (;y)  because  courts  of  law  cannot  do  effectual 
justice  to  such  questions  and  interests,  and  resort  must  be  had 
to  courts  of  equity,  (c)  But  it  is  clear  that  a  partner  may  sue 
a  copartner  on  an  express  agreement,  and  perhaps  on  an  implied 
agreement,  to  do  any  act  not  involving  a  consideration  of  the 
partnership  accounts,  {a)     And  if  *partners  finally  balance  all 


(y)  Bovill  V.  Hammond,  6  B.  &  C.  149 ; 
Brown  v.  Tapscott,  6  M.  &  W.  119; 
Lawrence  v.  Clark,  9  Dana,  257 ;  Stone 
r.  Fousc,  3  Cal.  292 ;  Bennett  r.  Wool- 
folk,  15  Geo.  213. 

(z)  It  is  clear  that  one  partner  has  no 
rif^ht  of  action  aj^ainst  a  copartner  for 
money  or  lalxir  expended  for  t!ie  lienctit 
of  the  concern.  Sec  (ioddard  r.  Hodges, 
1  Cr.  &  Mee.s.  37  ;  Holmes  v.  Ilijrtrins,  1 
B.  .<:  C.  74  ;  Millium  ;•.  Codd,  7  id.  419  ; 
Fromont  r.  Couplaiid,  2  Bin;r-  170;  Sad- 
ler r.  Nixon,  5  Bam.  &  Ad.  9.'56  :  Pearson 
V.  Skclton,  1  M.  &  W.  504  ;  Ikvans  v. 
Sullivan,  4  Gill,  383.  But  one  partner 
may  maintain  an  action  for  money  had 
ami  received  a<;ainst  the  other  partner,  for 
money  received  to  the  sc])arate  use  of  the 
former,  and  wrongfully  carried  to  the  jiart- 
ncrsliip  account.  Smitli  v.  Barrow,  2 
Term  \\v\>.  476.  And  one  partner  may 
have  an  action  against  his  co|)artncr  for 
not  contrihuting  his  jiroportion  towards 
the  common  stock.  Thus,  where  A  agrees 
to  supply  B  with  a  maimscript  work,  tohe 
])rint<il  liy  B.thc  iirotits  of  which  arc  to  ho 
C(|ually  divided,  B  may  maintain  an  action 
against  A  for  refusing  to  supply  the  manu- 
script. This  is  not  an  action  for  jjartner- 
ship  profits,  hut  for  refusing  to  contrihutc 
the  lahor  of  the  defendant,  towards  the 
attainment  of  profits.  Gale  v.  Lcckie,  2 
Starkic,  107.  The  same  jirinciplc  was 
adojued  in  Ellison  v.  Chapman,  7  Blackf 
224.  See  also,  Vance  v.  Blair,  18  Ohio, 
532.  —  The  American  courts  fully  recog- 


nize the  doctrine  that  during  the  existence 
of  a  partnership,  or  even  after  its  tlissolu- 
tion,  hut  hefore  the  husiness  is  wound  up, 
and  the  linal  halanee  ascertained,  no  action 
at  law  will  lie  hetween  partners.  Haskell 
r.  Ad:i«ns,  7  Pick.  59 ;  Williams  v.  Hen- 
.shaw,  12  id.  378;  Fanning  i\  Chadwick, 
3  id.  420 ;  Capen  r.  Barrows,  1  Gray, 
376  ;  Caustcn  v.  Burke,  2  HaiT.  &.  Gill, 
295;  Chase  r.  Garvin,  19  Maine,  211; 
Kenneily  x\  McFadon,  3  Harr.  &  Johns. 
194;  Murray  c.  Bogert,  14  Johns.  318; 
I)aven])ort  v.  Gear,  2  Scam.  495.  After 
such  linal  balance  is  determined,  and  a 
promise  hy  one  partner  to  ])ay  over,  the 
other  ])artncr  mav  sustain  an  action  at  law. 
Gnlick  r.  Gulick,  2  Green,  578  ;  Byrd  v. 
Fox,  8  Missouri,  574.  The  promise  may 
he  onlv  implied.  Wray  v.  Milestone,  5 
M.  &  \V.  21. 

[ii)  Van  Ness  r.  Forrest,  8  Cranch,  30  ; 
Gibson  r.  Moore,  6  N.  H.  U.  547.  In  this 
case  Parkrr,  J.,  thus  states  the  principles 
applicalile  to  this  point :  "  Assumi)sit  may 
he  maintained  hy  one  partner  against  an- 
other to  recover  a  linal  lialance  upon  the 
settlement  of  the  partnership  account, 
where  there  is  an  express  |)romisc  to  pay. 
Casey  r.  Brush,  2  Gaines's  Hep.  293 ; 
Fromont  i'.  Coupland,  2  Bing.  170.  In 
Massachusetts,  the  court  have  held  that 
where  the  partnership  accounts  arc  dosed, 
ami  the  lialance  strmk,  the  law  raises  an 
implied  promise.  Famiing  r.  Chadwick, 
3  Pick.  423.  The  same  doctrine  is  found 
in  Uuekstraw  v.  Imhcr,  Holt's  N.  1'.  11. 

[117] 


140- 


THE  LAW   OF   CONTRACTS. 


[book  I. 


their  accounts,  or  a  distinct  part  thereof  is  entirely  severed  by 
them  from  the  rest,  a  suit  at  law  is  maintainable  for  the  bal- 
ance, (b) 

If  one  of  a  partnership  who  are  plaintiffs  be  also  one  of  a 
partnership  who  are  defendants,  the  action  cannot  be  main- 
tained ;  for  the  same  party  cannot  be  plaintiff  and  defendant  of 
record,  in  the  same  action,  [a) 


368.  So  where  the  judgment  -will  be  an 
entire  termination  of  the  partnership  trans- 
actions, althougli  tliere  has  been  no  settle- 
ment of  the  accounts  by  the  partners,  nor 
an  express  pi'omisc  to  pay,  an  action  may 
be  sustained.  And  if  the  partners  bj'  an 
express  agreement  separate  a  distinct  mat- 
ter from  the  partnersliip  dealing,  and  one 
party  expressly  agrees  to  pay  the  other  a 
specific  sum  for  that  matter  at  a  given 
time,  an  action  of  assumpsit  will  lie  on 
that  contract,  though  the  matter  arose 
from  the  partnership  dealing.  CoUumer 
V.  Foster,  26  Vt.  754 ;  Williams  v.  Hen- 
shaw,  11  Pick.  82.  Probably  an.  action 
may  be  maintained  by  one  partner  against 
the  other,  for  a  balance  due  him  out  of 
the  partnersliip  transactions,  if  there  be 
but  a  single  item  to  liquidate.  Mjisier  v. 
Trumpbonr,  5  Wend.  274,  1  Stark.  78 ; 
sed  vide  Bovill  v.  Hammond,  6  B.  &  C. 
149.  The  pr()])osition  that  no  action  can 
be  maintained  at  law,  by  one  partner 
against  the  other,  excejjt  to  recover  a  final 
balance,*  must  be  taken  with  reference  to 
the  facts  and  questions  arising  in  those 
cases  in  which  such  language  is  used.  In 
Smith  V.  Barrow,  2  D.  &  E.  478,  Mr. 
Justice  Buller  says  :  '  One  partner  cannot 
recover  a  sum  of  monc}^  received  by  tlie 
other,  unless  on  a  balance  struck,  that  sum 
is  found  due  to  him  alone.'  Similar  Ian- . 
guagc  is  found  in  Ozeas  r.  Johnston,  1 
Binn.  191  ;  Beach  v.  Hotchkiss,  2  Conn. 
K.  425  ;  Murray  v.  Bogert,  14  Johns.  318 ; 
Westerlo  v.  Evertson,  1  Wend.  532.  So 
in  Moravia  v.  Levy,  2  D.  &  E.  483,  note, 
an  action  was  sustained  for  the  amount  of 
a  balance  struck  which  the  defendant  had 
promised  to  pay.  The  articles  contained 
a  covenant  to  account  at  certain  times, 
and  it  does  not  appear  whether  it  was  a 
final  balance  which  was  recovered.  It  is 
undoubtedly  true  as  a  general  rule,  that 
so  long  as  the  partnership  continues,  and 
the  concerns  of  it  remain  unadjusted,  tlie 
law  will  raise  no  implied  promise  by  one 
to  pay  tiie  other  upon  a  partnership  trans- 
action.    The  reason  is  that  such  transac- 

[148] 


tions  create  no  debt  or  duty  to  pay.  The 
act  of  one  party  is  the  act  of  the  other  — 
the  payment  or  receijit  of  money  by  one 
is  a  payment  or  receipt  by  the  other  — 
and  no  cause  of  action  can  arise.  In  the 
present  case  there  has  been  no  balance 
struck.  The  settlement  of  the  partnership 
concerns,  generally,  still  remains*  to  be 
made.  But  by  agreement  between  the 
parties,  in  relation  to  a  specific  portion  of 
the  partnership  transactions,  a  final  ad- 
justment has  been  made.  If  this  account- 
ing by  means  of  the  reference  had  only 
been  for  the  purpose  of  ascertaining  an 
item,  in  order  to  carry  it  into  the  partner- 
ship account  between  them,  no  doubt  the 
general  rule  would  apjily.  That  was  the 
case  in  Fromout  v.  Coupland,  2  Bing. 
170.  But  such  is  not  tlie  fact  here."  See 
also,  Clark  v.  Dibble,  16  Wend.  601  ; 
Grigs])y  V.  Nance,  3  Ala.  347.  —  And 
after  a  dissolution,  an  action  will  lie  be- 
tween partners  to  recover  a  balance  due, 
on  an  implied  promise.  Wilby  v.  Pliin- 
ney,  15  Mass.  116  ;  Pope  v.  Kaiidolph,  13 
Ala.  214.  —  So  to  recover  back  money 
paid  by  mistake  on  an  adjustment  of  the 
])artnership  concerns.  Bond  v.  Hays,  12 
Mass.  34;  Chase  v.  Garvin,  19  Maine, 
211. 

(b)  Clark  v.  Dibble,  16  Wend.  601  ; 
Gibson  v.  Moore,  6  N.  H.  K.  547  ;  Mc- 
Coll  V.  Oliver,  1  Stew.  510;  Fanning  v. 
Cliadwick,  3  Pick.  420  ;  Gulick  v.  Gulick, 
2  Green,  578. 

(c)  Portland  Bank  v.  Hyde,  2  Fairf.  196; 
Tindal  v.  Bright,  Minor  (Ala.), 103  ;  Main- 
waring  V.  Newman,  2  B.  &  P.  120;  Neale 
V.  Turton,  4  Bing.  149;  Teague  v.  Hub- 
bard, 8  B.  &  C.  345  ;  Bosanquetf.  Wray, 
6  Taunt.  597.  — But  sec  Rose  v.  Poulton, 
2  Barn.  &  Ad.  822,  where  the  facts  wei'e 
as  follows  :  —  By  an  indenture  between  A 
and  B  and  his  wife,  and  C,  of  one  part, 
and  D  and  E  and  the  same  C,  of  another 
part,  it  was  recited  that  F,  also  party  to 
the  deed,  had  requested  to  have  a  certain 
farm  given  up  to  him,  in  which  B's  wife  was 
interested,  he  F  giving  sureties,   namely, 


CH.  xn.] 


PARTNERSHIP. 


141 


♦SECTION    VII, 


OF  THE    SHARING   OF   LOSSES. 


Though  partnerships  are  usually  fonned  by  a  participation  of 
both  profits  and  losses,  it  may  be  agreed  that  a  partner  shall 
have  his  share  of  the  profits  and  not  be  liable  for  losses,  and 
this  agreement  is  valid  as  between  the  parties.  And  this  agree- 
ment will  be  equally  efficacious  whether  stated  in  articles,  or 
proved  by  circumstances  or  otherwise.  For  the  partners,  inter 
se,  may  make  what  bargain  they  will.  But  no  such  a.greement 
will  prevent  such  partner  from  being  liable  for  the  debts  of  the 
partnership,  unless  the  creditor  knew  of  this  bargain  between 
the  partners,  and  with  this  knowledge  gave  the  credit  to  the 
other  partners  only,  (d) 


the  said  13,  E,  and  C,  for  payment  of  an 
annuity  to  IVs  wife  ;  and  it  was  thereupon 
witneffsed  that  in  consideration  of  the  eov- 
fnant.s  thereinafter  entereil  into  by  A,  B 
and  liis  wife,  and  C,  nn(\  of  10s.,  the  said 
1),  E,  and  C,  and  each  and  ever}- of  them, 
covenanted  witii  A,  H  and  his  wife,  and 
C,  to  pay  the  annuity.  There  followed 
covenants  hy  A,  B  and  liis  wife,  and  C, 
severally,  for  quiet  enjoynient,  and  for 
exeeutiiifj;  an  assi;;nment  to  F  \^hen  rc- 
quiix'd.  The  deed  was  sji^ned  and  sealed 
by  D,  E,  and  C,  and  hy  E,  imt  not  hy  A 
or  B.  In  an  action  hroufrht  hy  A  and  B, 
after  the  death  of  C,  for  hreaeh  of  the 
covenant  to  jjay  the  aniniity  :  —  Ifilil, 
First,  that  the  omission  of  A  and  B  to  e.\e- 
cutc  the  deed  did  not  disable  them  from 
Kuiii;;  upon  it ;  that  siieh  omission  <lid  not 
amount  to  a  total  failure  of  consideration 
for  the  covenant  sued  upon,  (supposing 
sucli  total  failure  to  be  an  answer  to  the 
action,)  and  that  tlie  covenant  to  pay  the 
annuity,  and  those  for  (piiet  enjoyment  and 
for  assij^uiii;;,  were  not  mutual  and  de- 
pendent. Secondly,  that  at  least  after  Cs 
death,  A  and  B  miirht  sue  D's  executors, 
(I)  and  E  beinj;  also  dead,)  for  non-pay- 
\neut  of  the  annuity,  thoufrli  the  covenant 
for  such  payment  was  entered  into  both  by 
and  to  t".  —  And  where  one  who  is  a 
member  of  two  firms  makes  a  note  in  the 
name  of  one  of  the  firms,  payable  to  a 

13* 


member  of  the  other  firm,  the  payee  may 
sue  and  recover  upon  such  note.  Moore 
?•.  Gano,  12  Ohio,  300.  See  Baring  v. 
Lvnran,  1  Storv,  396  ;  Banks  v.  Mitchell, 
SYen^rer,  111." 

(d)  See  Gilpin  r.  Enderber,  5  Barn.  & 
Aid.  954  ;  Bond  r.  Pittard,'  3  Mees.  & 
AVelsI).  357.  In  this  ease,  A  and  B  carried 
on  husiness  toj^ethcr  as  .solicitors  in  part- 
ncrshij),  anil  held  themselves  ont  as  such  ; 
and  the  defendant  employed  them  in  that 
Qdpacity.  By  tlie  a<,'reement  under  which 
A  and  B  entered  into  business  together, 
B.  was  to  receive  amuially  out  ofihe  jirojits 
the  sum  of  300/.,  but  he  was  not  to  be  ia 
any  manner  liable  to  the  losses  of  the 
business,  and  wits  to  have  a  lien  on  the 
profits  f\)r  any  losses  he  might  sustain  by 
rea.son  of  his  liability  as  a  partner :  Held, 
that  A  and  B  were  j>ro})erly  joined  as 
plaintiffs  in  an  action  for  work  antl  labor, 
as  the  money,  when  recovered,  wt)uld  be 
the  joint  jiroperty  of  both  until  the  ac- 
counts were  ascertained  and  the  <livision 
took  place.  In  this  case  Bnlhnd,  B., 
said  :  "  It  has  been  fully  established  by 
numerous  ciuses  both  at  law  and  in  equity, 
that  third  parties  are  not  affected  by  the 
secret  contracts,  iutir  so,  of  ))ersons  hold- 
ing themselves  out  and  contracting  as 
]>artners.  That  doctrine  is  fully  gone 
into  in  the  case  of  Waugh  i".  Carver,  2  II. 
Bl.   246,  hy  Lord    Chief  Justice    (Evrc) 

[U9] 


142* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


♦SECTION    VIII. 

of  secret  and  dormant  partners. 

A  secret  partner  is  one  not  openly  and  generally  declared  to 
be  a  partner,  (e)  and  a  dormant  partner  is  strictly  one  who  takes 
no  share  in  the  transaction  or  control  of  the  partnership  busi- 
ness ;  but  it  is  often  held  to  mean  one  whose  name  is  not  pub- 
licly mentioned ;  and  the  phrases  secret  partner  and  dormant 
partner  are  sometimes,  but  inaccurately,  used  as  synony- 
mous. (/)  A  dormant  partner  is  liable  when  discovered.  («•) 
But  not  for  a  debt  contracted  after  he  has  retired,  provided  the 
creditor  never  knew  that  he  was  a  partner,  or  did  know  that  he 
had  retired  before  credit  was  given  to  the  partnership,  {h) 


De  Gi'ey,  and  is  there  distinctly  laid 
down."  See  Perry  r.  Kandol]ih,  6  Sm. 
&  Marsh.  385 ;  Hazard  v.  Hazard,  1 
Story,  374 ;  Barrett  v.  Swan,  17  Maine, 
180 ;  Pollard  v.  Stanton,  7  Ala.  761  ; 
Alderson  v.  Pope,  1  Camp.  404,  note; 
Minnit  v.  Whiuery,  5  Bro.  P.  C.  489. 
See  also  Brown  v.  Leonard,  2  Chitty, 
120. 

(c)  In  United  States  Bank  v.  Binney,  5 
Mason,  186,  the  following  definition  of 
a  secret  partnership  is  given  :  "  I  under- 
stand the  common  meaning  of  secret  part^ 
ncrship  to  be  a  partncrsliip  where  the  ex- 
istence of  certain  persons  as  partners  is 
not  avowed  or  made  known  to  the  public 
by  any  of  the  partners.  Where  all  the 
partners  are  pul)licly  made  known,  whether 
it  he  by  one  or  all  the  partners,  it  is  no 
longer  a  secret  partnership."  See  S.  C. 
5  Peters,  529. 

(/)  In  Mitchell  v.  Dall,  2  Harr.  & 
Gill,  159,  it  is  said  that  in  the  legal  ac- 
ceptation of  the  terra  dormant,  as  applied 
to  partners  in  trade,  cveiy  partner  is  con- 
sidered dormant  unless  his  name  is  men- 
tioned in  the  firm,  or  embraced  under 
general  terms  in  the  name  of  the  firm  or 
company.  See  to  the  same  ciFect  Kelley 
V.  Hurlburt,  5  Cowcn,  534 ;  Desha  v. 
Holland,  12  Ala.  513 ;  Hill  v.  Voorhies, 
22  Penn.  St.  Reps.  68.  —  The  law  rela- 
tive to  dormant  partners  seems  to  be  con- 
iined  to  trade  and  commerce,  and  does 

[150] 


not  extend  to  speculations  in  the  sale  and 
purchase  of  land.  Pitts  v.  Waugh,  4 
Mass.  424;  Smith  v.  Burnham,  3  Sum- 
ner, 470.  But  see  Brooke  v.  Washing- 
ton, 8  Grattan,  248,  contra. 

{(j)  Iloliinson  v.  Wilkinson,  3  Price, 
538.  In  this  case  Wilkinson  had  been  a 
dormant  partner  in  a  ship  with  one  Cay, 
but  had  retired.  Kobinson,  the  plaintiff, 
supplied  the  ship  and  the  captain  with 
stores  and  cash  on  account  of  the  ship, 
to  the  amount  of  £1,000  and  upwards. 
The  amount  of  the  debt  at  the  time  of 
Wilkinson's  retirement  was  X401  16s.  Id. 
Caj'  having  become  insolvent,  the  Court 
of  Exchequer  held  clearly  that  llobinson 
was  entitled  to  recover  against  Wilkinson 
the  total  sura  of  .£401  16s.  Id.,  (with  a 
trifling  deduction  on  a  particular  account,) 
although,  when  the  goods  were  sujiplied, 
llobinson  had  no  knowledge  that  Wilkin- 
son was  a  partner.  "A  party,"  said 
Graliam,  B.,  "  has  always  a  right  against 
a  concealed  partner  of  whom  he  has  pre- 
viously had  no  knowledge,  as  soon  as  he 
discovers  him,  unless  that  ignorance  were 
his  own  fault ;  as,  if  he  had  not  used  due 
diligence  in  finding  hira."  —  The  liability 
of  a  dormant  partner  to  creditors  may  be 
avoided,  however,  by  i)roof  of  fraiid  in  the 
formation  of  the  partnership,  if  sudi  dor- 
mant partner  has  received  no  share  of  the 
funds.  Mason  i;.  Conncll,  1  Wharton,  381. 

(A)  Grosvenor  v.  Lloyd,  1  Mete.  19.   In 


CH.  XII.] 


PARTNERSHIP. 


*143 


♦SECTION    IX. 


OF   RETIRING   PARTNERS. 


A  retiring  partner  who  receives  thereafter  a  share  of  the 
profits  is  still  liable;  but  not  if  he  receives  an  annuity  or  definite 
sum  noways  dependent  on  the  jjrofits.  Though  the  remaining 
partners  may  look  to  the  partnership  fund  or  to  their  expected 
profits  as  the  means  of  paying  such  aimuity,  it  is  still  only 
their  debt  to  him,  and  does  not  involve  him  in  their  responsibil- 
ity to  others,  (i) 


this  ca.sc,  Shaw,  C.  J.,  observed,  "  A  dor- 
mant piirtner  is  liiible  for  debts  coiitnicted 
while  he  is  a  partner,  not  bceausc  eredit  is 
given  to  Iiini,  l)ut  l)eeaiise  lie  is  in  fact  a 
eontractinfi  p:ii'ty,  takinjr  part  of  the  ])rof- 
its  of  such  contracts.  But  when  he  ceases 
to  be  in  fact  a  partner,  the  reason  ceases, 
and  he  is  no  lonfjer  liable.  Ho  is  not 
liable  ius  a  contract int;  party,  because  the 
partnership  name,  under  which  the  remain- 
inj;  partners  continue  to  transact  business, 
no  lon^xcr  includes  him,  tlioujih  that  nanie 
may  remain  the  same  ;  and  he  is  not  lial)le 
tts  holding  out  a  false  credit  for  the  firm, 
because  the  case  su])poses  that  he  is  not 
known  as  a  partner,  and  therefore  the  firm 
derives  no  credit  whilst  he  remains  a  se- 
cret or  donnant  partner.  No  customer, 
therefore,  or  other  ])crson  dealiiif^  with  the 
firm  can  be  disapjiointed  in  any  just  ex- 
pectations, if  he  silently  withdraws  from 
the  firm.  A  very  dirterent  rule  would  ap- 
ply where  one  had  been  a  known  or  osten- 
sible jiartncr,  and  licld  himself  out  as 
such."  tSee  also  Kelly  r.  Ilurllutrt,  5 
Cowcn,  5.'?4  ;  Kvans  v.  Drummond,  4 
Esp.  89;  Armstron<r  v.  Ilussey,  12  Scr;:. 
&  Knwie,  31.'} ;  Scott  v.  Colmesnil,  7  J. 
J.  Marsh.  41G ;  IJenton  v.  Chamber- 
lain, 2.'5  Verm.  711  ;  Edwards  r.  McKall, 
5  Louis.  Ann.  107  ;  Hrooke  r.  Knderby,  2 
Brod.  &  Bing.  71  ;  Carter  r.  Whallcv,  1 
Bam.  &  Ad.  11.  —  It  is  a  (piestion  for  the 
jury  whether  a  person  was  a  dormant  part- 
ner, and  his  interest  not  in  fact  generally 
known,  so  as  to  excuse  notice  of  his  retire- 
ment from  the  finn.  Sliain,  C.  J.,  in 
Goddaid  v.  Pratt,  16  Pick.  429. 


(/)  See  Yonng  v.  Axtell,  2  11.  Bl.  242 ; 
Holyland  r.  De  Mendez,  3  Mer.  184. 
There  it  was  agreed  on  the  dissolution  of 
a  ])artnersliip,  that  tlie  continuing  partner 
should,  in  consideration  of  an  assignment 
to  him  of  the  partnersliip  property,  includ- 
ing a  lease  of  the  premises  on  which  the 
business  was  carried  on,  secure  to  the  re- 
tiring partner  tiie  ])ayraent  of  an  annuity, 
"or  in  case  he  should  at  any  time  after 
the  expiration  of  the  then  existing  lease 
be  dispossessed  of  and  compelled  to  quit 
the  premises,  without  any  collusion,  con- 
trivance, act,  or  default  of  his  own."  The 
continuing  ])ailner  obtained  a  renewal  of 
the  lease,  and  afterwards  became  liankru])t, 
and  the  renewed  lease  passed  under  the 
assignment  of  his  estate.  It  was  held, 
that  this  was  not  such  an  eviction  or  dis- 
])o.s.session  as  was  contemplated  by  the 
agreement,  in  the  event  of  which  the  annu- 
ity was  to  cease.  Under  the  same  cir- 
eimistances,  namely,  of  a  ]iartner  retiring 
and  leaving  his  capital  in  tlie  lirm,  it  will 
be  necessarily  unsafe  to  reservi-  a  usurious 
rate  of  interest  for  tlic  capital  left  in  the 
firm;  though  this  observation,  perhaps, 
only  applies  to  a  usurious  agrei'inent  in 
the  deed  of  dissolution  itself.  For  where 
by  a  deed  of  dissolution  between  A,  B, 
and  C,  A  and  B  covenanted  to  replace 
C's  share  of  the  capital  by  instalments, 
and  afterwards  a  ne^y  agreement  was 
entered  into  by  ))arol,  whicii  secured  a 
usurious  rate  of  interest  to  C,  it  was  held 
tiuit  the  effect  of  considering  the  latter 
agreement  void,  was,  not  to  invalidate,  but 
to   set   up   the   original    agreement    and 

[151] 


144* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


When  a  partner  retires  from  a  firm,  notice  is  usually  given  by 
public  advertisement,  or  by  letters  to  the  customers  of  the  *firm, 
or  both.  A  party  having  such  notice  cannot  hold  the  retiring 
partner  to  a  responsibility  for  a  credit  given  to  the  firm  after 
such  retirement  and  notice.  ( /)  It  also  seems  to  be  settled  that 
such  retiring  partner  is  not  held  to  a  creditor  who  has  no 
know^ledge  of  such  retirement,  provided  the  retirement  was 
actual  and  in  good  faith,  and  the  retiring  partner  did  all  that 
was  usual  or  proper  to  give  the  public  and  customers  notice  of 
his  retirement.  But  if  the  retiring  partner  gives  no  such  notice, 
then  a  customer  of  the  firm  accustomed  to  trade  with  the  firm 


make  that  binding  on  the  parties,  for  that 
the  second  agreement  was  not  a  pcrform- 
anee  of,  bnt  a  substitution  for,  the  for- 
m.er  transaction.  See  Parker  v.  Ramsbot- 
tom,  3  B.  &  C.  257. 

( /)  Notice  of  the  withdrawal  of  a  dor- 
mant partner  is  not  necessaiy.  Magill  v. 
Merrie,  5  B.  Monr.  168  ;  Kennedy  v.  Bo- 
hannon,  11  B.  Mon.  120;  Scott  v.  Col- 
mesnil,  7  J.  J.  Marsh.  416.  —  But  it  is 
otlierwise  as  to  ostensil)le  partners.  To 
affect  a  creditor  who  lias  formerly  traded 
with  the  firm,  the  notice  of  the  retirement 
of  an  ostensil)le  partner  must  be  proved 
to  have  been  actual.  Prentiss  r.  Sinclair, 
5  Verm.  149 ;  Simonds  v.  Strong,  24 
Verm.  642 ;  Wardwell  v.  Haight,  2  Barb. 
Sup.  Ct.  R.  .549;  Clapp  v.  Rogers,  2 
Kernan,  283 ;  Hutchins  r.  Hudson,  8 
Humph.  426  ;  Graves  v.  Merry,  6  Cowen, 
705  ;  Vernon  v.  Manhattan  Company,  17 
Wend.  527.  In  Pitcher  v.  Barrows,  17 
Pick.  365,  Sliaw,  C.  J.,  said,  "It  has 
sometimes  been  held  that  those  who  have 
been  dealers  and  customers  of  a  firm  shall 
have  actual  notice  of  a  dissolution  ;  but " 
he  adds,  "  that  may  be  thought  too  strict. 
But  it  has  always  been  held,  that  in  de- 
fault of  actual  and  personal  notice  to  a 
party,  public  notice  in  some  newspaper 
shall  be  deemed  necessary."  "  The  doc- 
trine," says  Mr.  Chancellor  Kent,  "  seems 
to  be  that  merely  taking  a  newspaper  in 
which  a  notice  is  contained  is  not  suf- 
ficient to  charge  a  party,  for  it  is  not  to 
hp  uitended  that  he  reads  the  contents  of 
all  the  notices  in  the  newspapers  which  he 
may  chance  to  take.  The  inference  of 
consti'uctive  notice  from  such  a  source 
was  strongly  exjjloded  in  some  of  the 
above  cases."  (3  Kent,  5th  ed.  67,  note.) 
Watkinson  i'.  Bank  of  Pennsylvania,  4 

[152] 


Whart.  482.  But  see  Jenkins  r.  Blizard, 
1  Stark.  418.  A  newspaper  notice  acci- 
dentally reaching  a  bank  director  is  not 
equivalent  to  actual  notice  to  the  bank ; 
but  it  seems  it  would  be,  if  the  notice  was 
actually  seiwcd  on  him,  with  directions  to 
communicate  it  to  the  board.  National 
Bank  v.  Norton,  1  Hill  (N.  Y.)  572.— 
Pul)li.shment  of  the  dissolution  in  a  news- 
paper will  not  perse  be  sufficient,  although 
it  may  with  other  circumstances  go  to  the 
jury  as  nidence  of  actual  notice.  Sec 
Graham  i\  Hope,  1  Peake,  154  ;  White  v. 
Murphj',  3  Rich.  369;  Hutchins  v.  Bank 
of  Tennessee,  8  Hump.  418;  Shurlds  v. 
Tilson,  2  M'Lean,  458 ;  Grinnan  v.  Baton 
Rouge  Mills  Co.,  7  Louis.  Ann.  638. 
As  to  all  persons  who  have  had  no  deal- 
ings, and  given  no  credit  to  the  firm,  pub- 
lishment of  the  dissolution  is  sufficient. 
Lansing  v.  Gaine,  2  Johns.  300  ;  Prentiss 
r.  Sinclair,  5  Verm.  149  ;  Shurlds  v.  Til- 
son,  2  McLean,  458  ;  Watkinson  v.  Bank 
of  Pennsylvania,  4  Wharton,  482.  In 
Mowatt  V.  Rowland,  3  Day,  353,  two 
partners  of  a  firm  resided  in  New  York, 
and  the  third  in  Norwich  in  Connecticut, 
their  usual  place  of  doing  business.  Upon 
dissolution,  notice  was  given,  for  several 
weeks  successively,  in  two  newspapers, 
one  printed  at  Norwich,  and  the  other  at 
New  London,  in  the  vicinity  of  Nonvich. 
One  of  the  New  York  partners  afterwards 
indorsed  a  bill  of  exchange  in  New  York 
with  the  company  name,  but  whether  the 
indorsee  had  or  had  not  actual  notice  of 
the  dissolution,  did  not  appear,  nor  did  it 
appear  that  he  had  ever  been  a  con-e- 
spondent  of  the  company.  It  was  held, 
that  these  facts  constituted  reasonable 
notice  to  him,  and  to  every  person  not  a 
correspondent  of  the  company. 


CH.  XII.] 


PARTNERSHIP. 


*14o 


on  the  responsibility  of  all  the  partners,  including  him  who  has 
retired,  and  not  knowing  of  his  retirement,  may  hold  him  for  a 
debt  contracted  with  the  firm  after  his  retirement.  (Ic)  Whether 
a  new  customer  can  *so  hold  him  is  not  so  certain.  Generally, 
he  cannot ;  but  if  the  new  customer  was  brought  to  the  firm 
by  the  responsibility  of  this  partner,  which  responsibility  he 
knew  to  have  existed,  and  had  a  right  to  suppose  existed  still, 
which  right  grew  out  of  the  laches  of  the  retiring  partner,  and 
no  negligence  or  want  of  diligence  was  imputable  to  the  credi- 
tor, it  would  seem  on  general  principles  that  the  creditor  had  a 
right  to  hold  him  responsible  as  a  partner.  It  would  be  dillicult 
to  distinguish  on  principle  such  a  case  from  that  of  a  former 
customer  creating  a  new  debt. 


SECTION    X. 

OF   NOMINAL   PARTNERS. 

A  nominal  partner,  or  one  held  out  to  the  world  as  such 
without  actual  participation  of  profit  and  loss,  is  of  course  held, 
generally,  as  responsible  for  the  debts  of  the  partnership.  But 
it  has  been  determined  that  where  two  or  more  persons  appear 
to  the  public  as  partners,  and  there  is  a  stipulation  between 
them,  that  one  of  them  shall  not  have  any  share  of  the  profits, 
nor  |)ay  any  portion  of  the  losses,  he  is  not  liable  to  the  creditor 
of  the  firm  who  before  giving  credit  knew  of  this  stipulation; 
because  such  creditor  has  no  right  to  fix  upon  him  a  responsi- 
bility against  his  bargain  and  intention,  which   bargain  and  in- 


{/:)  Parkin  r.  Camitlicrs,  .3  Esp.  248 ; 
Graliain  r.  Hope,  1  IVake,  154;  Boniard 
V.  Toriiituo,  f)  (Jill  &  Jolins.  38.1 ;  Lucas 
r.  I?aiik  of  Dariiii,  2  Stew.  280;  Stal)les 
V.  Kiev,  1  Carr.  &  PayiU',  t)14;  Taylor  r. 
Yoimil',  3  Watts,  339;  Amiilown  V.  Os- 
gooil,  24  ViTiii.  278  ;  Simomls  v.  Stroii;;, 
24  Venn.  642  ;  Biirfran  r.  LvcU,  2  Mich. 
102;  Johnson  v.  Totten,  3  Cal.  343. 
And  a  partner  whose  name  is  not  used  in 
a  linn,  is  still  Iial)le  for  delits  contracted 
siihseipiently  to  his  retirement,  with  per- 


sons who  knew  of  his  previous  connection, 
Init  who  had  no  notice  of  his  rctiirment. 
Davis  r.  Allen,  3  Comst.  108.  The  jirih- 
ciplc  upon  which  this  respoiisiliility  pro- 
ceeds, is  the  ne^dijrence  of  the  partners  in 
leavin;:  the  world  in  ifrnorance  of  the  fact 
of  dissolution,  and  leavin;r  strany:ers  to 
conclude  that  t!iei)artnei-shipis  continued, 
and  to  i)estow  faith  and  confidence  on  the 
partnership  name  in  conse(|uencc  of  that 
i)elief.  See  3  Kent's  Com.  06;  rrinceton 
r.  Guliek,  1  Ilairison,  161. 

[lo3] 


146* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


tention  were  known  to  the  creditor.  (/)  An  'admission  by  a 
person  that  he  is  a  partner  in  a  firm  is  not  conclusive  against 
him,  though  made  to  the  creditor,  if  made  after  the  debt  for 
which  it  is  sought  to  make  him  liable,  was  contracted  ;  other- 
wise, if  made  before  the  credit  is  given,  (m) 


(I)  Alderson  v.  Pope,  1  Camp.  404, 
note,  and  Lord  EUenhorough  in  that  case 
hold  that  notice  to  one  member  of  a  firm, 
of  such  a  stipulation,  was  notice  to  the 
whole  partnership.  It  was  also  held  in 
Batty  V.  McCundie,  3  Carr.  &  Payne,  202/ 
that  if  one  of  several  partners  he  con- 
cerned in  preparing  the  prospectus  of  a 
projected  newspaper,  which  prospectus 
states  that  he  and  others  will  act  as  treas- 
urers and  manaf^ers,  and  also  that  the  sub- 
scribers are  not  to  he  partners,  nor  to  be 
answerable  for  more  than  their  subscrip- 
tion ;  and  such  partner  be  also  aware, 
that  a  particular  individual  "is  to  be  solo 
nominal  proprietor ;  the  firm  of  which 
such  a  partner  is  a  member,  (although  he 
has  not  taken  any  share  in  the  paper,) 
caimot  sue  the  subscribers  who  have  taken 
shares,  for  the  price  of  goods  furnished 
for  the  paper.  See  also  Burness  v.  Pen- 
nell,  2  Ho.  of  Lords  Cases,  497. 

(m)  Ridgway  r.  Philip,  1  Cr.,  Mee.  & 
Ros.  41.5.  In  this  case,  the  plaintiff  con- 
tracted with  one  Brown,  the  patentee  of  a 
draining  machine,  for  the  erection  of  one 
of  those  machines  on  the  jjlaintiff's  lands 
in  Cambridgeshire.  The  draft  of  the 
agreement  being  drawn  u|)  in  the  name  of 
Brown  &  Co.,  tlic  plaintiff  asked  Brown 
what  other  persons  beside  himself  conr- 
posed  the  firm,  upon  which  Brown  wrote 
on  the  back  of  the  draft,  "John  Broad- 
hurst,  Esq.,  and  Dr.  Wilson  Phili])." 
The  contract  being  broken,  the  plaintiff 
brought  his  action  against  Philip  and 
Broavlhurst  ;  but  previously  to  the  action, 
his  son  called  on  the  defcndimt  Broad- 
hurst,  and  asked  him  whether  Brown  was 

[154] 


correct  in  making  the  indorsement  upon 
the  draft  of  the  agreement,  to  which 
Broadhurst  replied  in  the  affirmative  and 
stated  tltat  he  had  bought  his  original 
interest  from  the  other  defendant,  Dr. 
Philip.  Evidence  was  also  given  at  the 
trial,  that  while  the  engine  was  in  pro- 
gress, he  attended  very  freciucntly  at  the 
manufactory  to  incpiire  how  it  was  going 
on,  and  that  he  gave  advice  and  made 
suggestions  with  regard  to  its  construc- 
tion. In  answer  to  this,  an  agreement  or 
license  from  Brown  and  the  other  parties 
interested  in  the  patent,  to  Broadhurst, 
was  given  in  evidence  on  the  jnut  of  the 
latter,  authorizing  Bnjadhurst  to  use  the 
patent  for  the  erection  of  engines  in  cer- 
tain parts  of  Cornwall  only,  and  it  was 
contended  that  the  admissions  of  Broad- 
hurst were  to  be  taken  with  reference  to 
the  interest  which  he  thus  possessed  in 
the  invention,  and  not  to  any  participation 
either  in  the  patent  generally,  or  in  the 
particular  transaction  in  question.  Gase- 
lee,  J.,  who  tried  the  action,  left  it  to  the 
jury  to  say  whether  Broadhurst,  at  the 
time  he  made  the  admission,  was  under  a 
mistake  ;  and  whether  the  acts  he  was 
proved  to  have  done  did  or  did  not  afl'oi-d 
a  sufficient  ground  for  supposing  it  to  be 
a  mistake ;  and  with  regard  to  those  acts, 
lie  left  it  to  the  jury  to  say  whether  they 
were  referable  to  a  partnershij)  in  the 
patent  in  general,  or  in  this  particular 
transaction.  The  jury  found  a  verdict  for 
the  defendants,  on  the  ground  tltat  Broad- 
hurst was  not  a  ]iartner,  and  the  Court 
of  Exchequer  refused  to  grant  a  new 
trial. 


I 


CH.  XII.] 


PARTNERSHIP. 


147 


SECTION    XI. 

WHEN   A   JOINT   LIABILITY  IS   INCURRED. 

Where  there  is  no  joint  purchase  or  joint  incurring  of  debt, 
but  a  purchase  by  one  to  whom  alone  credit  is  given,  a  subse- 
quent joint  interest  in  the  property  purchased,  and  in  the  busi- 
ness and  profits  depending  upon  it,  carries  no  liability  for  the 
original  debt,  {n)  And  where  many  persons  join  in  an  *ad- 
venture,  each  to  contribute  his  share,  each  is  liable  alone  for 
his  share  to  the  person  from  whom  he  bought  it.     No  partner- 


(n)  Persons  arc  not  to  be  held  jointly 
liable  npon  a  contract  as  partners,  unless 
they  have  a  joint  interest  existing;  at  the 
time  of  the  formation  of  the  contract. 
The  case  of  Young  r.  Hunter,  4  Taun- 
ton, 582,  well  illustrates  this  ])rincii>le. 
In  an  action  forpoods  sold  and  delivered, 
two  of  the  defendants,  Hunter  and  Kay- 
ney,  suttVrcd  jtid;:nicnt  to  <:o  hy  default ; 
the  otlier  dtfeiKlants,  Hott'liam  &  Co., 
pleaded  the  fxcneral  issue.  On  trial  it 
appeared  that  Hunter  anil  T{ayney  had 
l)ou;cht  jiooils  of  the  plaintid's  and  others, 
which  they  intended  to  sliip  for  the  Haltic, 
and  tiie  defendants  Hotf  inun  &  Co.  (not 
otlu'rwise  |)artners  of  Hunter  &  Co.,  were 
afterwards  allowed  to  join  in  the  adven- 
ture, and  to  have  a  fifth  siiare  upon  the 
{roods  heinj;  put  on  hoard.  The  plain- 
tiffs knew  ncjthinfr  of  Holfliam  &  Co., 
hut  sold  the  jjoods  to  Hunter  &  Co.  only. 
The  (piestion  was  whether  this  was  a  case 
of  common  -^Irepini;  partners.  Miiiisfitld, 
C.  .1.,  dircrti'il  tiie  jury  to  lind  for  defend- 
ant, with  liberty  for  plaintiff,  to  move  for 
a  new  trial ;  a  rule  riisi  was  obtained,  on 
the  trround  tiiat  Hotfham  &  Co.  havinsj 
had  the  benefit  of  the  j^oods,  were  lial)le 
to  pay  for  tliem,  tlioiiLrh  they  were  origi- 
nally furnished  to  Hunter  &  Co.  only. 
On  a  new  trial,  Munaii'ld,  C.  .!.,  contin- 
ued of  the  same  opinion.  Hi-nih,  J.  : 
"The  proposition  of  the  plaintiff's  coun- 
sel, that  if  it  be  shown  that  at  any  one 
perioil  of  the  transaction  there  was  a  part- 
nershi])  subsisting,  it  was  therefore  to  he 


inferred  that  there  liad  been  a  partncrsliip 
in  the  particular  original  purchase,  is 
wholly  unfounded."  Vhamhre,  J.,  was  of 
the  same  opinion.  GiUis,  J. :  "  The  only 
possil)le  ground  for  a  new  trial  would  be, 
if  the  piaintifis  could  show  that  at  the 
time  of  the  jnircluise  of  the  goods  from 
the  plaintifls,  Hoff  ham  &  Co.  and  Hun- 
ter &  Rayney  were  concerned  in  that  jmr- 
chase  on  their  joint  account.  It  oidy  ap- 
pears that  they  wei-e  so  interested  at  the 
time  of  shipment.  It  is  not  to  be  inferred 
from  the  fact  that  Hoff  ham  &  Co.  were 
interested  at  the  time  of  shipment,  that 
they  were  interested  at  the  time  of  the 
purchase.  It  is  for  the  plaintiffs  to  make 
it  out  by  evidence.  If  parties  agree 
among  themselves  that  one  house  shall 
buy  goods,  and  let  the  other  into  an  inter- 
est in  them,  that  other  being  unknown  to 
the  vendor;  in  such  a  ca^e  the  vendor 
could  not  recover  against  him,  though 
such  other  person  would  have  the  benefit 
of  the  goods.  On  this  and  other  reasons, 
I  think  the  present  verdict  ought  not  to 
be  disturbed."  —  This  ])rinciplc  is  further 
illustrated  by  many  cases,  siiowing  that 
where  one  on  his  individual  credit  alone 
borrows  money  for  the  use  of  the  linn, 
the  lirm  will 'not  be  liable  merely  be- 
cause the  money  came  to  their  use. ',  Sec 
Silfkin  V.  \Valker,  2  Camp.  .308;  Graeft' 
V.  Hitchman,  .")  Watts,  4.54 ;  Emly  v.  Lye, 
1 5  Kiust,  7  ;  Green  r.  Tanner,  8  Mete. 
411;  Ripley  v.  Kingsbury,  1  Day,  150, 
note. 

[155] 


148*-149*-150* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


ship  arises  until  the  several  shares  are  brought  together  and 
mixed  up  in  one  common  adventure,  (o)  But  if  the  *bargaii4 
was  for  a  joint  purchase  and  joint  adventure,  there  is  at  once  a 
joint  liability  for  the  original  purchase,  although  it  was  *made 
by  one  of  the'  partners  alone,  and  he  alone  was  known  *to  be 
interested,  and  credit  was  given  to  him  alone,  (p)  Because  the 
liability  of  a  partner  springs  either  from  his  holding  himself  out 


(o)  This  principle  is  full}''  established 
by  the  ease  of  Saville  v.  Eobei-tson,  4 
Term  R.  720.  See  also,  Gouthwaite  v. 
Duckworth,  12  East,  421,  where  Saville 
V.  Robertson  is  distinguished.  Lord 
Ellenhorough,  in  Gouthwaite  v.  Duckworth, 
says  :  "  The  case  of  Saville  v.  Robertson 
docs  indeed  api)roacii  very  near  to  this ; 
but  tlic  distinction  is,  that  there  each  par- 
ty brought  his  separate  parcel  of  goods, 
whicli  were  afterwards  to  be  mixed  in  the 
common  adventure,  on  board  the  ship ; 
and  till  tliat  admixture  the  partnership  in 
the  goods  did  not  arise.  But  here  the 
goods  in  question  were  purchased  in  pur- 
suance of  the  agreement  for  the  adven- 
ture, of  which  it  had  been  before  settled 
that  Duckworth  was  to  have  a  moiety." 
And  Mr.  Justice  Bayleij  observed,  that, 
"in  Saville  i'.  Robertson,  after  the  pur- 
chase of  the  goods  made  by  the  sevci-al 
adventurers,  there  was  a  still  further  act 
to  be  done,  whicli  was  the  putting  them 
on  board  the  ship  in  which  they  had  a 
common  concern,  for  the  joint  adventure; 
and  until  that  further  act  was  done,  the 
goods  purchased  by  each  remained  the 
separate  property  of  each.  But  here,  as 
soon  as  the  goods  were  purchased,  the 
interest  of  the  three  attached  in  them  at 
the  same  instant,  by  virtue  of  the  jirevi- 
ous  agreement."  —  See  also  Post  v.  Kim- 
berly,  9  Johns.  470,  in  which  it  was  held, 
thai  there  was  no  partnershi])  between  A 
and  B,  and  C  and  D,  in  the  outward 
cargo,  except,  perhaps,  so  far  as  related 
to  the  transport  and  selling  of  it ;  for  that, 
although  the  whole  cargo  was  shipped  on 
board  the  same  vessel,  yet  it  was  clear 
that  each  house  purchased  and  put  on 
board  its  aliquot  part,  without  the  concern 
or  responsibility  of  the  otlicr.  Brooke 
t'.  Evans,  5  Watts,  196;  Simms  r.  Wil- 
ling, 8  Serg.  &  Rawle,  103. 

(p)  Thus,  where  three  ])ersons  M'ere 
engaged  in  a  joint  speculation,  for  the 
purchase  and  importation  of  corn,  but 
no  partnership  fund  was  raised  for   the 

[15G] 


speculation,  and  the  parties  met  the  ex- 
penses in  thirds,  and  two  only  of  the  three 
had  the  management  of  the  speculation, 
one  of  these  two  being  the  consignee  and 
the   other  the   salesman  of  the  corn ;   it 
was  nevertheless  very  truly  said,  that,  if 
there  had  been  a  claim  in  that  case  by  the 
seller  of  the   corn,   no  doubt   he  would 
have  been  entitled  to  proceed  against  all 
the   parties,    and  might   have   called    on 
them  all  for  payment.     Smith  v.  Craven, 
1  Cromp.  &  JeiT.  500.     Upon  the  same 
principles,  where  A  and  others  agreed  to 
become  partners  in  the  purchase  of  fifteen 
shares  of  a  copper  adventure,  and  in  pur- 
suance of  the  agreement,  A  alone,  and  in 
his   own  name,   contracted   for  the  pur- 
chase of  the  shares,  and  paid  a  deposit,  to 
which  the  others  contributed  ;  it  was  held 
that  the  others,  as  well  as  A,  were  bound 
by  this  contract,  and  that,  upon  an  action 
and  verdict   against  A  for  tlie   non-per- 
formance of  it,  the  others  were  bound  to 
contribute  their  proportion  of  the   dam- 
ages and  costs.     Browne  v.   Gibbins,   5 
Bro.  P.   C.  491.     So,  where  A  and  B, 
publishers,  ordered  certain  stationers  to 
supply  paper  to   C  and  D,  printci-s,  for 
the  purpose  of  printing  certain   specified 
works,  and,  npon  the  bankruptcy  of  A 
and  B,  the  stationers  discovered  that  C 
and  D  were  partners  with  A  and  B  in  the 
putilication  of  those  works,  aiul  thereupon 
brought  an  action  against  C  &  D,  to  re- 
cover the  value  of  the  paper,  Lord  Den- 
man,    C.    J.,    told    the  jury  that  if  they 
thought,  that,  at  the  time  when  the  goods 
were  furnished,  the  defendants  were  part- 
ners in  the  concern  for  whose  benefit  they 
were  furnished,  the  jury  were  to  find  for 
the  plaintiffs.     The  jury  did  so  find,  and 
the    Court   of  King's   Bench  refused  to 
crant  a  new  trial.     Gardiner  v.  Childs,  8 
Carr.  &  P.  345.  —  See   Coope  v.  Eyre,  1 
H.  Bl.  37  ;  Barton  r.   Hanson,  2  Taunt. 
49  ;  Sims  v.  Willing,  8   Serg.  &  Rawle, 
103. 


CH.  XII.]  PARTNERSHIP.  *15l 

to  the  world  as  a  partner,  or  from  his  participation  in  the  busi- 
ness and  its  profit  or  loss.  If  these  two  causes  meet,  as  is 
usually  the  case,  they  strengthen  each  other  ;  but  either  of  them 
alone  is,  in  general,  suflicient  to  create  this  liability,  (q)  And 
there  is  no  liability  as  a  partner  where  there  is  neither  a  partici# 
pation  of  profits,  nor  any  such  use  of  the  defendant's  name 
permitted  by  him  as  justifies  the  plaintiff  in  selling  to  others  on 
his  credit,  although  there  may  be  in  some  other  way  or  meas- 
ure a  community  of  interest,  (r) 


♦SECTION    XII. 

OF  THE  AUTHORITY  OF  EACH  PARTNER. 

It  is  a  general  rule,  both  throughout  Europe  and  in  this 
country,  that  the  whole  firm  and  all  the  members  of  a  copart- 
nership are  bound  by  the  acts  and  contracts  of  one  partner 
with  reference  to  the  partnership  business  and  affairs  —  such 
act  or  contract  being  in  law  the  act  or  contract  of  all.  This 
power  of  each  partner  to  represent  and  to  bind  the  rest,  and  to 
dispose  of  the  partnershi})  property,  is  sometimes  regarded  as 
arising  from  the  agency  which  all  confer  on  each  ;  and  some- 
times from  the  community  of  interest  whereby  no  partner 
owns  any  part  of  the  partnership  property  exclusively  of  the 
rest,  but  each  partner  owns  the  whole,  in  common  with  all  the 
others.  We  think  it  rests  upon  both  of  these  foundations 
together.  It  is  true  that  there  may  be  a  copartnership  where 
one  or  more  of  the  partners  has  no  interest  in  the  capital  stock 
by  agreement  among  themselves.  But  even  then  all  own 
together  the  profits,  and  so  much  of  the  funds  or  capital  of  the 
firm  as  consists  of  profits.     Partners  are  undoubtedly,  in  some 

(7)  Sco  BurkiriLrliam  v.  Burpcs-:,  3  Mc-  Gill,  92.  —  And  a  lay  or  share  in  the  pro- 
Lean,  .■5G4  ;  Maikiiani  r.  Jont-s,  7  H.  ci'cds  of  a  whaling  vova^je  docs  not  civatc 
Monroe,  456;  Henediet  i;.  Davis,  2  Me-  a  partnorship  in  the  jiVotits  of  tiie  vov:ij:c, 
Lean,  .347  ;  Cottrill  v.  Vanduzen,  22  but  is  in  tlio  nature  of  seamen's  wa^jes. 
Verm.  511.  and  poverncfl  l)y  tiie  same  rules.     Coffin 

(r)  See  Osborne  v.  Brennan,  2  Nott  &  r.  Jenkins,  3  Story,  108. 
McCord,    427  ;    Milburn    v.    Gaythcr,   8 

VOL.  I.  14  [157] 


i52* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


way,  agents  of  each  other.  But  the  principle  of  agency  alone 
will  not  explain  the  whole  law  of  their  mutual  responsibility. 
Out  of  the  combination  of  this  principle  with  those  which 
grow  out  of  the  community  of  property  and  of  interest,  the 
4aw  of  partnership  is  formed.  And  this  law  may  often  be  illus- 
trated by  a  reference  to  the  principles  of  agency  ;  but  must  still 
be  regarded  as  consisting  of  a  distinct  system  of  rules  and  prin- 
ciples peculiar  to  itself 

So  also,  partnership  is  sometimes  spoken  of  as  like  joint- 
tenancy,  with  important  modifications,  or  like  tenancy  in  com- 
mon, with  such  modifications.  In  truth  it  is  a  distinct  and 
independent  relation ;  and  though  it  has  some  of  the  attributes 
of  joint-tenancy,  and  some  of  tenancy  in  common,  it  is  neither 
of  these.  Nor  can  it  be  much  better  illustrated  by  a  reference 
to  either  of  these  modes  of  joint  ownership,  than  they  would  be 
by  a  reference  to  partnership. 

*If  an  action  is  brought  against  sundry  persons  as  copartners, 
and  the  fact  of  copartnership  is  admitted,  or  otherwise  proved, 
then  the  admission  of  one  of  the  partners  as  to  any  matter  be- 
tween the  firm  and  another  party  affects  as  evidence  all  the  part- 
ners. But  where  the  existence  of  the  copartnership,  or  of  the 
joint  interest  or  liability,  is  indispute^  the  admission  of  one  per- 
son that  he  is  copartner  with  the  others,  affects  him  alone,  and  is 
not  evidence  of  the  existence  of  the  copartnership  so  as  to  bind 
the  others,  [s)      And  if  two  firms  are  partners  in  any  transac- 


(s)  Taylor  v.  Henderson,  17  S.  &  Rawle, 
453;  McFlierson  v.  Rathbone,  7  Wend. 
216;  Jewett  v.  Stevens,  6  N.  H.  82; 
Mitchell  V.  Roulstone,  2  Hall,  351  ;  Nel- 
son V.  Lloyd,  9  Watts,  22  ;  Cottrill  I'.Van- 
duzen,  22  Venn.  511  ;  Gilpin  r.  Temple,  4 
Harring.  190  ;  Van  Kcimsdyk  v.  Kane,  1 
Gallison,630;  Tattle  ?;. Cooper,  5  Pick. 414; 
Whitney  v.  Ferris,  10  Johns.  66  ;  Bucknani 
V.  Barnum,  15  Conn.  68  ;  Phillips  v.  Pur- 
ington,  15  Maine,  425  ;  Jennings  v.  Estes, 
16  id.  323  ;  Welsh  v.  Speakman,  8  Watts 
&  Scrg.  257  ;  Hanghey  v.  Stricklcr,  2  id. 
411  ;  Porter  v.  Wilson,  13  Penn.  641. — But 
the  existence  of  a  partnership  may  bei)rovcd 
by  the  separate  admissions  of  all  who  are 
sued,  or  by  the  acts,  declarations,  and  con- 
duct of  the  parties,  the  act  of  one,  the 
declarations  of  another,  and  the  acknoAvl- 

[158] 


edgment  or  conduct  of  a  third.  Welsli  r. 
Speakman,  8  Watts  &  Scrg.  257.  See  also, 
Hanghey  V.  Strickler,  2  Watts  &  Serg.  411. 
And  where  proof  of  the  admissions  of  an 
alleged  partner  ai-e  offered  at  the  trial,  it 
is  the  province  of  tlie  judge  and  not  of  the 
jurj^  to  pass  upon  the  fact  whether  such 
person  was  a  partner  or  not.  Harris  i'.  Wil- 
son, 7  Wend.  57.  —  And  where  the  terms 
of  the  agreement  and  the  facts  iTre  admit- 
ted, it  is  a  question  of  law,  whether  there 
was  a  partnership  or  not.  Everitt  v. 
Chapman,  6  Conn.  347  ;  Terrell  v.  Rich- 
ards, 1  Nott  &  McCord,  20.  —  The  fact 
that  the  defendants  do  business  as  partners 
is  prima,  facie  evidence  of  their  copartner- 
ship, and  no  written  articles  need  be 
shown.  Bryer  v.  Weston,  16  Maine,  261 ; 
Gilbert  v.  Whidden,  20  id.  367  ;  Forbes  v. 


CII.  XII.] 


PARTNERSHIP. 


*153 


tion,  the  acknowledgment  by  one  aflects  both.  The  eflfect  of 
an  acknowledgment  by  a  partner,  where  a  promise  is  barred 
by  the  Statute  of  Limitations,  will  be  considered  when  we  treat 
of  that  statute. 

Where  a  joint  business  transaction  consists  in  or  refers  to  the 
purchase  of  goods,  it  is  generally  the  rule  that  the  partnership 
liability  begins  when  the  goods  are  ordered.  But  this  may 
depend  upon  the  question  whether  the  person  giving  the  order 
was,  at  that  time,  the  agent  of  all  who  are  sought  to  be  charged. 
For  if  he  was  not,  then  they  are  not  liable ;  and  in  that  case  a 
subsequent  naked  acknowledgment  of  the  contract  will  not 
suffice  to  render  them  liable  as  partners,  (t)     For  parties  *are 


Davidson,  11  Verm.  660.  And  the  ad- 
verse party's  acknowledgment  tliat  the 
plaintitfs  were  ]jartncrs  i.s  sufficient.  Bisel 
V.  Uohhf,  6  Blackf.  479. 

(t)  Gouthwaite  v.  Duckworth,  12  East, 
421  ;  Saville  v.  Ilohcrtson,  4  Term  Kcp. 
720.  In  Sims  v.  Willinp:,  8  Serp.  & 
Rawle,  10.3,  A,  by  order  of  B,  chartered  a 
vessel  to  take  a  car^o  of  flour  and  Indian 
corn  on  freight  from  Philadelphia  to  Lis- 
bon. Part  of  the  flour  belonged  to  A, 
pan  to  B,  and  the  remainder  to  C ;  and 
the  share  of  each  was  paid  for  out  of  his 
separate  funds.  A  effected  a  sejjarate  in- 
fiurance  on  his  own  interest  in  tlic  flour, 
'riic  whole  shi])ment  was  consigned  to  C, 
in  Lisbon,  and  the  whole  a])peared  as  his 
property  for  the  purpose  of  protecting  it 
from  British  cruisers.  Had  tlie  vessel  ar- 
rived at  Lisbon,  the  whole  of  the  flour 
was  to  iiave  been  sold  by  the  consignee, 
and  the  net  proceeds  of  A's  interest  re- 
mitted, on  his  account,  to  his  correspond- 
ent in  London,  //tlil,  that  A,  B,  and  C 
were  partners,  anil  individually  liable  for 
the  whole  amount  of  a  general  average 
due  upon  the  flour.  —  The  case  of  Post  i\ 
Kimberly,  0  Johns.  470,  is  a.leading  case 
on  this  subject.  In  that  case,  A.  and  M., 
partners,  owned  three  fourths  of  a  ves.sel, 
and  H.  :md  K.,  partners,  owned  the  one 
fourth;  t™yagiced  to  fit  her  out  tm  a  voyage 
from  New  York  to  Laguira.  A.  and  M, 
purcha.sed  three  fourths  of  the  cargo,  and 
chiefly,  if  not  wholly,  with  luites  lent  and 
advancetl  to  them  liy  P.  and  H.,<ommission 
merchants.  B.  and  K.  ])iuiliasedithc other 
fourth  of  the  cargo,  for  which  they  paid 
their  own  money,  and  slii])ped  the  same 
on  board  the  vessel  ;  hut  it  was  not  dis- 
tinguished from  the  rest  of  the  cargo  by 


any  particular  marks ;  and  the  whole 
cargo  was  to  be  sold  at  Laguira,  for  the 
joint  account  and  joint  Ijeiietit  of  the 
owners,  A.  and  M.,  and  B.  and  K.  M. 
went  out  as  the  supercargo  and  agent ; 
and  having  sold  the  cargo  at  Laguira,  he 
invested  the  proceeds  in  a  return  cargo, 
with  which  tiie  vessel  set  sail  for  New- 
York,  but  was  obliged  by  stif  ss  ofweather 
to  put  into  Norfolk,  where  M.  sold  the 
return  cargo,  excejjt  a  small  parcel  of 
coffee,  and  for  the  avails  received  bills  of 
exciumge,  which  he  indorsed  and  remitted, 
with  the  ]>arcel  of  coffee,  to  P.  and  11.,  to 
whom  A.  and  M.  were  jointly  iiulel)ted, 
and  M.  on  his  private  account,  to  a  greater 
amount,  for  advances  made  at  the  time  of 
the  i)iuchase  of  the  outward  cargo.  P. 
and  K.  collected  the  bills  and  sold  the 
coffee  so  remitted,  and  applied  the  same 
to  the  ])ayment  of  the  debts  .so  due  to 
them  from  A.  and  M.  P.  aiul  K.  had 
notice,  if  iu)t  at  the  time  of  the  shipment 
of  the  f)iitward  cargo,  certainly  before  the 
bills  remitted  by  Al.  were  collected,  and 
the  cofi'ee  sold  and  converted  into  money, 
that  B.  and  K.  were  interested  in  and 
owned  oiin  fourth  of  the  cargo,  so  sold  by 
M.  ;  and  B.  and  K.  demanded  of  P.  and 
li.  their  jiroi)ortion  of  the  proceeds  so  re- 
mitted by  M.,  after  deducting  commi^i- 
sions,  etc.,  but  P.  and  H.  refused  to  pay 
or  deliver  the  same,  alleging  their  right 
to  retain  tiie  same,  for  the  payment  of  the 
del)t  due  to  them  from  A.  and  M.  It  was 
belli,  that  there  was  no  /Miiimrship  exist- 
ing iietweeu  A.  and  M.  and  B.  and  K.,so 
as  to  render  the  disposition  of  the  return 
cargo,  by  M.  binding,  as  the  act  of  a 
partner,  on  B.  and  K. ;  that  theiv  was  no 
agreement  constituting  a  i)artner6hip   ia 

[159] 


154* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


not  jointly  liable  as  partners  upon  any  contract,  unless  they  had 
a  joint  interest  preceding  or  contemporary  with  the  *forraation 
of  the  contract.  But  where  two  or  more  agree  together  to  pur- 
chase goods,  and  agree  also  that  one  shall  purchase  them  for 
the  rest,  here  there  is  a  partnership  preceding  the  purchase,  and 
he  that  buys  is  by  the  agreement  of  the  others  their  agent,  and 
all  are  liable  as  partners,  (ii) 

We  have  seen  that  each  partner  is  for  many  purposes  the 
agent  of  all  the  rest,  by  force  of  law,  without  any  express  au- 
thority. Loans,  purchases,  sales,  assignments,  pledges,  or 
mortgages,  effected  by  one  partner  on  the  partnership  account, 
and  with  good  faith  on  the  part  of  the  creditor  or  other  third 
party,  are  binding  on  all  the  firm.  And  this  agency,  as  it  gen- 
erally springs  from  a  community  of  interest,  so  it  is  generally 
limited  by  this  community. 

Among  the  questions  which  have  arisen  as  to  the  limitations 
to  this  general  power,  one,  not  yet  perhaps  perfectly  settled,  is 
as  to  the  power  of  one  partner  to  make  an  assignment  of  the 
whole  property,  to  pay  the  partnership  debts,  (i?)     We  think 


the  purcliasc  of  tlie  outward  cargo,  or  to 
share  jointly  in  the  nJtimute  profit  and  loss 
of  the  adventure ;  and  though  there  might 
be  a  partnership,  so  far  as  respected  the 
transportation  and  selling  of  the  outward 
cargo,  for  the  joint  profit  and  loss  of  the 
owners  ;  yet  it  terminated  in  the  sale  of 
the  outward  cargo ;  and  their  hiterest  iu 
the  return  cargo  was  separate  and  distinct, 
each  being  entitled  to  his  respective  pro- 
portion of  it,  without  any  concern  in  the 
profit  and  loss,  which  might  ultimately 
arise  ;  and  that  P.  and  R.,  not  having  re- 
ceived the  bills  in  the  course  of  trade,  and 
knowing  of  the  intei-est  of  B.  and  K.  be- 
fore the  bills  were  paid,  had  no  right  to 
retain  their  sliarc,  for  the  payment  of  the 
debt  of  A.  and  M.,  but  must  account  to 
B.  and  K.,  for  their  proijortion ;  and  that 
a  bill  for  a  discovery  and  account  b}'  them, 
against  P.  and  11.,  was  sustainable  in  the 
Court  of  Chancery;  that  court  having  a 
concurrent  jurisdiction  with  the  courts  of 
law  in  all  matters  of  account.  —  In  Coope 
V.  Eyre,  1  II.  Bl.  37,  A,  B,C,  and  D, agreed 
to  buy  jointly  all  the  oil  tliey  could  get, 
as  their  joint  jjurchase,  but  A  alone  was 
to  buy,  and  B,  C,  and  D,  were  to  share 
equally  in  the  oil  he  bought.     A  buys  of 

[160] 


E  F  on  credit.  The  oil  fiills  in  value,  and 
A  fails.  E  F  sues  B,  C,  and  D,  as  his 
partners.  They  were  held  not  to  be  his 
partners,  because  it  appcai'cd  that  A  was 
not  to  sell  for  the  rest ;  but  when  he  had 
bought,  B,  C,  and  D,  were  to  receive  from 
him  each  one  fourth ;  and  there  was  no 
community  in  the  disposition  of  the  oil. — 
A  firm  cannot  be  charged  with  a  debt  con- 
tracted by  one  of  the  partners  before  the 
partnership  was  constituted,  although  the 
subject-matter  wliich  was  the  consideration 
of  the  debt,  has  been  caiTied  into  the  part- 
nership as  stock.  Brooke  i\  Evans,  5 
Watts,  196;  Ketchum  v.  Durkee,  1  HofF. 
Ch.  R.  .5.38. 

(ii)  Fclichv  V.  Hamilton,  1  Wash.  C.  C. 
R.  491. 

{v)  Andereon  v.  Tompkins,  1  Brock. 
456.  It  was  held  in  this  cas(Pthat  the 
right  of  one  partner  to  bind  another  by 
such  assignment  results  from  his  general 
power  to  dispose  of  tlie  partnership  pi-op- 
erty,  and  if  made  bond  fide  is  valid. 
Marshall,  C.  J.,  said :  "  Had  this,  then, 
been  a  sale  for  monej'-,  or  on  credit,  no 
person,  I  think,  could  have  doubted  its 
obligation.  I  can  perceive  no  distinction 
in  law,  in  reason,  or  in  justice,  between 


en.  XII.] 


PARTNERSHIP. 


155 


the  weight  of  authority  and  of  reason  is  in  favor  of  this  power, 
and  that  such  assignment,  being  entirely  in  good  faith,  would 


such  a  sale  and  the  transaction  whiili  has 
taken  place.  A  merchant  may  rij^htfully 
sell  to  his  creditor,  as  well  as  for  money. 
He  may  give  goods  in  payment  of  a  debt. 
If  he  may  thns  pay  a  small  creditor,  he 
may  thns  pay  a  large  one.  The  r/nnnlum 
of  deht,  or  of  goods  sold,  cannot  alter  the 
right.  Neither  does  it,  as  I  conceive, 
affect  the  power,  that  these  goods  were 
conveyed  to  trustees  to  he  sohl  hy  them. 
The  mode  of  sale  must,  I  think,  depend 
on  circumstances.  Should  goofls  l)e  de- 
livered to  trustees,  for  sale,  witliout  neces- 
sity, the  transaction  would  be  examined 
witii  scrutinizing  eyes,  and  might,  under 
some  circumstances,  be  impcadied.  Jint 
if  the  necessity  be  ajiijarent,  if  tite  act  be 
justified  by  its  motives,  if  the  mode  of 
sale  be  such  as  the  circumstances  r«iuire, 
I  cannot  say  that  the  partner  has  exceeded 
his  i)ower."  The  assignment  was  idso 
held  valid  in  Harrison  v.  Sterry,  5  Cranch, 
300,  altliougii  under  seal.  Koliiuson  v. 
Crowder,  4  McCord,  519.  And  see  to 
the  same  effect  Mills  v.  Barber,  4  Day, 
428  ;  Deckard  v.  Case,  .5  Watts,  22  ;  Tap- 
lev  c.  Huttcrheld,  1  Mete.  51.5^  Mal)bctt  t'. 
^V^liitc,  2  Kern,  442  ;  Kemp  v.  Carnley, 
•3  Duer,  1.  In  Egberts  v.  Wood,  .3  Paige, 
517,  Ciiancellor  UWHwri/f  considered  such 
assignments  valid  when  not  against  the 
known  wishes  of  a  copartner.  The  con- 
trary was  hehl  in  Dickinson  t'.  Ix-gare,  1 
Desan.  557,  (overruled  l)y  I{obins4^)n  v. 
Crowder,  siiiim) ;  Dana  v.  Lull,  17  \'erm. 
•390.  Per  JinljieJil,  J.,  and  JJ<'iiiin/t,  J. 
See  Moddewell  c.  Keever,  8  W.  &  S.  63. 
In  Havens  v.  IJussey,  5  Paige,  30,  the 
power  of  one  partner  to  make  such  au  as- 
signment against  tJie  kfiown  wishes  of  a 
copartner,  or  without  his  consent,  was 
held  invalid.  Chancellor  Walicorth,  re- 
ferring to  Eglierts  r.  Woo<l,  sii/ini,  said  : 
"  As  it  was- not  necessary  for  tiie  decision 
of  tiiat  ciL'iC,  I  did  not  express  any  oj)inion 
■as  to  the  validity  of  an  assignment  of  tiic 
partnershrj*  effects  liy  one  partner,  anainst 
the  known  wislies  of  iiis  copartner,  to  a 
fntatet',  for  the  benefit  of  the  favorite  credi- 
tors of  the  assignor;  in  fraud  «)f  the  rightji 
of  his  copartner  to  jvarticipate  in  the  dis- 
tribution of  the  iiarlnership  effects  among 
the  creditors,  or  in  the  <lecision  of  the 
question  a.s  to  wliidi  of  the  creditors,  if 
any,  sliould  iiavc  a  prefei-cncc  in  payment 
out  of  the  effects  of  an  insolvent  coucem. 


.  .  .  One  member  of  the  firm,  without  any 
express  authority  from  the  other,  may  dis- 
charge a  partnership  debt,  either  by  the 
payment  of  money,  or  by  the  transfer  to 
the  creditor  of  any  other  of  the  cojiartner- 
ship  effects  ;  although  there  may  not  be 
sufficient  left  to  pay  an  equal  amount  to 
the  other  creditors  of  the  finn.  But  it  is 
no  part  of  the  ordinary  business  of  a  co- 
partnership to  appoint  a  trustee  of  all  the 
partnership  effects,  for  the  pur])Osc  of  sell- 
ing and  distributing  the  proceeds  among 
the  creditors  in  unecjual  proportions.  And 
no  such  authority  as  that  caji  be  implied. 
On  the  contrary,  such  an  exercise  of 
power  by  one  of  the  firm,  without  the 
consent  of  the  other,  is  in. most  ciises  a 
virtual  dissolution  of  the  copartncrsliip ; 
as  it  renders  it  imjKJSsiblc  for  the  firm  to 
continue  its  Iwisiness."  —  In  Hitchcock  v. 
St.  John,  1  Uoff.  Ch.  K.  511,  it  was  held, 
that  one  partner  cannot  on  the  eve  of  in- 
solvency assign  all  tiie  partnership  prop- 
erty to  a  trtistee,  for  the  purpose  of  paying 
tiie  debts  of  the  firm  with  preferences.  In 
Kirby  v.  Ingei-soll,  1  Doug.  (Mich.)  477, 
tiie  reasons  for  and  against  the  validity  of 
such  assignments  to  trustees  were  eUibo- 
rately  considered  by  FcMi,  J.,  delivering 
tlie  opinion  of  the  court,  and  Wliijijile 
dissenting;  audit  was  held  tliat  the  im- 
plied autliority  arising  from  the  ordinary 
contract  of  copartnership  does  not  author- 
ize one  of  the  partners,  without  the  iissent 
of  his  copartners,  and  in  the  absence  of 
special  circumstances,  as  their  absence  in 
a  foreign  country,  to  make  a  general  as- 
signiuent  of  the  )iartnci-ship  effects,  to  a 
trustee,  for  the  benefit  oi  creditors,  giving 
preferences  to  some  over  others.  The 
power  of  one  partner  to  make  such  au 
assignment  to  trustees  as  would  terminate 
the  ijartnersliip  was  left  undecided  in 
Haves  i-.  Hever,  4  Sandf.  Ch.  485,  and 
PieVpoint  r.  (jraham,  4  Wash.  C.  C.  232. 
In  the  latter  cjise.  Judge  Wushington  cvi- 
dentU-  inclined  to  the  ojiinion  that  it  does 
not  exist,  although  be  diil  not  find  it  nec- 
essary to  e.xpnss  himself  decidedly  upon 
the  (juestion.  See  CoUver  on  Part.  §  395  ; 
Story  on  Pi\rt.  ^§  101,  310;  3  Kent, 
Comm.  44,  note,  (7th  ed.).  But  the  as- 
signment of  real  pro|)Crty  to  trustees  will 
not  bind  the  partners  who  do  not  join  in 
it.  Andenson  v.  Tompkins,  1  Brock.  463  ; 
Collyer  ou  Part.  (3d  Am.  ed.),  ^  394. 

[ICI] 


lo6*-157* 


THE   LAW   OF  CONTRACTS. 


[book  I. 


be  held  valid.  He  may  sell  the  whole  stock  in  *trade  by  a  sin- 
gle contract,  (iv)  Nor  is  the  sale  avoided  by  the  fact  that  the 
partner  making  the  sale  applies  the  proceeds  to  the  payment  of 
his  private  debt,  (x) 

It  seems  to  be  settled  that  a  partner  may  dissent  from  a  fu- 
tm-e  or  incomplete  contract,  and  that  a  third  party  having  notice 
of  such  dissent  could  not  hold  the  dissenting  partner,  without 
evidence  of  his  subsequent  assent  or  ratification,  (y)     *And  the 


(ir)  Arnold  v.  Brown,  24  Pick.  89; 
Tapley  v.  Butterfield,  1  Mete.  518;  An- 
derson V.  Tompkins,  1  Brock.  456  ;  Pier- 
son  V.  Hooker,  3  Johns.  70  ;  Livingston 
V.  Koosevclt,  4  Johns.  277 ;  Mills  v. 
Barber,  4  Day,  430  ;  Picrpoint  v.  Graham, 
4  Wash.  C.  C.  234  ;  Kirby  v.  Ingersoll,  1 
Harring.  Ch.  (Mich.)  172;  Halstead  v. 
Shepard,  23  Ala.  558.  In  Whitton  v. 
Smith,  1  Freeman,  Ch.  (Miss.)  238,  Buck- 
ner,  C.  J.,  says  :  "  One  of  the  undisputed 
canons  of  the  law  of  partnership  is,  the 
right  of  each  partner  to  sell  the  whole 
partnership  property,  if  the  sale  be  free 
from  fraud  on  the  jiart  of  the  purchaser, 
and  such  a  sale  term imites  tiie  ])artnership 
relation."  Arnold  v.  Brown,  24  Pick.  92. 
Morton,  J. :  "  The  sale  was  made  by  one 
of  two  partners.  And  the  first  objection 
is,  that  one,  in  the  absence  of  the  other, 
had  no  authority  to  make  this  sale.  It  is 
said,  that  although  he  might  sell  the 
whole  partnership  stock  by  retail,  yet  that 
it  was  not  according  to  the  ordinary  course 
of  business,  and  so  not  witliin  tlie  scope  of 
his  authority,  to  sell  the  wliole  at  once  by 
a  single  contract.  We  have  no  evidence 
of  the  terms  of  association  between  these 
partners  ;  but  there  is  no  reason  to  sup- 
pose that  either  member  of  the  firm  had 
any  different  authority  than  what  was  de- 
rived from  the  relation  sul)sisting  between 
them.  Doubtless  the  ordinary  business  of 
the  company  was  to  purchase  goods  by 
the  large  quantity,  and  to  sell  them  in 
small  quantities.  But  this  cannot  restrain 
the  general  power  to  buy  and  sell.  The 
Yaliiliry  of  a  purchase  or  a  sale  cannot 
be  made  to  depend  upon  tlie  amount 
bought  and  sold.  The  authority  will 
•expand  or  contract,  according  to  the  emer- 
gencies which  may  arise  in  the  course  of 
their  proper  business.  One  of  their  prin- 
cipal objects  was  to  sell,  and  it  would  be 
absurd  to  say  that  cither  partner  might 
sell  all  the  goods  by  retail  as  fast  as  pos- 
sible, but  if  a  favorable  opportunity  oc- 

[162] 


curred,  to  sell  a  great  part  or  the  whole  at 
once,  he  would  have  no  power  to  do  it. 
That  an  exigency  had  arisen  in  the  affairs 
of  the  partnership,  which  rendered  a  sale 
necessary,  and  wliich  made  it  highly  ex- 
pedient and  beneficial  to  sell  in  this  mode, 
is  very  apparent.  And  we  have  no  doubt 
that  the  one  j)artner  was  authorized  to 
make  this  sale  in  the  name  of  the  firm." 

(x)  Arnold  v.  Brown,  24  Pick.  93. 
Morton,  J.  "  It  was  immaterial  to  the 
purchaser  how  or  to  whom  he  paid  the 
price.  If  a  portion  went  to  pay  a  private 
dcl)t  of  one  of  the  firm,  it  would  not  in- 
validate the  sale  and  defeat  the  transfer  of 
the  goods.  Whether  it  would  be  deemed 
a  legal  payment  pro  tanto,  as  against  the 
creditors  of  the  firm,  is  a  question  with 
which  we  have  nothing  to  do.  So  if  the 
partnership  stock  had  been  taken  in  satis- 
ftiction  of  a  private  debt  due  from  one  of 
the  partners  to  the  purchaser,  it  might 
have  been  deemed  fraudulent  as  to  the 
creditors  of  tlie  company.  But  such  was 
not  this  case." 

{ij)  In  Willis  V.  Dyson,  1  Stark.  164, 
the  dissent  was  by  one  partner,  who  sent 
a  circular  containing  these  words  :  "  I  am 
sorry  that  the  conduct  of  my  partner  com- 
pels me  to  send  the  annexed  circular.  I 
recommend  it  to  you  to  be  in  possession 
of  my  individual  signature  before  you  send 
any  more  goods  ;  "  and  it  was  held  to  be 
sufficient.  Lord  EUenhoroiigli  held,  "  That 
although  no  dissolution  had  taken  place 
till  a  late  period,  yet  that  after  notice  by 
one  partner  not  to  supply  any  more  goods 
on  the  partnership  account,  it  would  be 
necessary  for  the  partner  sending  goods 
after  such  notice  to  prove  some  act  of 
adoption  by  the  partner  who  gave  the  no- 
tice, or  that  he  had  derived  some  benefit 
from  the  goods."  Peigley  v.  Sponeberger, 
5  W.  &  S.  564 ;  Vice  v.  Fleming,  1 
Younge  &  Jcrv.  227  ;  3  Kent,  Comm.  45  ; 
Bayfield's  Case,  1  Salk.  292  ;  Minnit  v. 
Whincry,  5  Bro,  P.  C.  489  ;  Booth  v. 


I 


CH.  xn.] 


PARTNERSHIP. 


158 


mere  fact  that  the  goods  purchased  by  the  contract  came  into 
the  possession  of  the  firm  is  not  sufficient  evidence  of  such 
assent  or  ratification,  [z) 

Money  lent  to  one  partner  for  his  own  expenses,  incurred  by 
him  in  prosecuting  the  business  of  the  partnership,  has  been 
held  to  be  a  partnership  debt,  (a)  But  a  person  lending  money 
to  one  partJier,  that  he  may  contribute  it  to  increase  the  capital 
of  the  concern,  cannot  hold  the  other  partners  liable,  without 
some  evidence  of  their  assent  or  authority,  (b)  *And  one  at- 
torney, a  member  of  a  firm,  has  no  general  authority  resulting 
from  the  nature  of  their  business  to  borrow  money  on  the  credit 
of  the  firm,  (c)     Nor  can  he  bind  his  copartner  by  an  indorse- 


Quinn,  7  Price,  193. — The  implied  au- 
thority of  one  partner  to  draw  bills  and 
notes  for  the  partnership  is  revoked  b}' 
notice  to  the  person  wlio  afterwards  re- 
ceives them  that  it  docs  not  exist.  Gahvay 
V.  Mattliew,  1  Camp.  403,  S.  C.  10  East, 
264  ;  liooth  i-.  Quinn,  7  Price,  193.  The 
refusal  of  a  partner  to  give  a  Joint  note 
does  not  of  itself  amount  to  a  revocation 
of  the  implied  authority,  but  the  (piestion 
is  to  be  submitted  as  one  of  ji id  for  the 
jury.  Lcavitt  v.  Peck,  3  Conn.  124  ;  Vice 
V.  Fleming,  1  Younj^e  &  Jcrv.  227. — This 
dissent  may  not  perhaps  relieve  a  ]j;ntner 
from  liability  wliere  the  ](artuership  con- 
sists of  nioi'c  than  two,  unless  the  majority 
dissent.  3  Kent,  Comm.  45  ;  Story  on 
Part.  §  123;  Coll.  on  Part.  <)  389,  note; 
Kouth  r.  Quinn,  7  Price,  193  ;  Kirk  v. 
Hod^'son,  3  Johns.  Ch.  400.  And  it  has 
been  laid  that  each  partner  may  bind  his 
copartners  by  any  contract  within  tlie 
scope  of  the  jiarttiership  business,  notwith- 
standiuf;  they  object  to  the  transaction. 
Wilkins  c.  Pearcc,  5  Denio,  TUl.  "By 
the  act  of  entcriufj  into  a  copartnership, 
each  of  its  members  becomes  clothed  with 
full  power  to  make  any  and  e\er3'  contract 
■within  the  scojye  and  limits  of  the  c()]>art- 
nership  i>u<iness.  All  sucii  contracts  will 
therefore  be  absolutely  i)iiulinp  upon  the 
several  members.  This,  however,  is  inci- 
dent to  the  coj)artncrshii»  relation,  and 
must  exist,  in  deriance  of  ex])ostulations 
and  ol  jections,  while  the  relation  endures." 
S.  C.  2  Comst.  4G9.  A  firm  cannot  be 
charfied  with  a  debt  contracted  i)y  one 
partner,  iiefore  the  partnershiii  was  con- 
stituted, althou<;h  the  sul)ject-niatter  which 
was  the  consideration  of  the  debt  has  been 
carried  into  the  partnership  as  stock.   Kor 


can  the  firm  be  charged  with  rent  which 
accrued  upon  a  lease  to  one  of  the  part- 
ners. Brooke  v.  Evans,  5  Watts,  196  ; 
Ketchum  v.  Durfee,  1  lioft'.  Ch.  K.  528 ; 
LeKoy  r.  Johnson,  2  Pet.  198. 

(c)  Monroe  v.  Conner,  15  Elaine,  178. 
Slicpltij,  J.  :  "  It  is  (piite  obvious  that 
there  may  be  a  difference  between  the 
goods  coming  to  the  use  of  the  hnn,  and 
a  benelit  derived  to  tlie  dissenting  i)artner 
from  their  delivery  to  the  tirni.  The  bar- 
gain may  have  proved  to  be  a  very  losing 
one,  and  this  may  have  been  foreseen  by 
the  dissenting  partner,  and  have  been  the 
very  cause  of  the  notice  ;  and  wliy  should 
he  be  held  to  pay,  ])erlia|)S  from  his  private 
property,  for  goods,  the  j>urcliase  and  sale 
of  which  may  have  absorbe<l  the  whole 
jjartnership  stock,  when  he  had  piovided 
against  such  a  calamity  by  expressing  hig 
dissent  from  the  contract  before  it  was  con- 
sununated  '.  " 

(«)  l-iothwell  V.  Humphreys,  1  Esp. 
406.  Aiul  see  E.r  parte  Bonbonus,  8  Ves. 
540.  —  But  if  one  partner  borrow  money 
and  give  his  own  security  for  it,  it  doesiiot 
bi'come  a  ])artnership  debt  l)y  being  ap- 
])lied  to  i)aitnership  jiurposes.  GraefF  v. 
llitchman,  5  Watts,  434  ;  Bevan  i.  Lewis, 
1  ISiin.  376  ;  Endv  r.  Eve,  15  East,  6. 

(6)  Fisherr.  Tayler,  2  Hare,  218.  And 
see  Crecn,siade  r.  l)ower,  7  B.  &  C.  635  ; 
Stewart  c.  Caldwell,  9  Louis.  Aim.  Keps. 
419  ;  King.  v.  Faber,  22  Peun.  St.  Keps. 
21. 

(c)  Breckenridge  v.  Shrieve,  4  Dana, 
378.  See  also  Sims  v.  Brutton,  1  E.  L.  & 
E.  446;  Wilkinson  v.  Candlish,  19  Law 
J.  Hep.  Exch.  166;  Harmon  v.  Johnson, 
3  Car.  &  Kir.  277. 

[1G3] 


159* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


ment  of  a  writ  in  his  own  name,  (cc)  A  lender  of  money  to  a 
partner  cannot,  in  general,  recover  of  the  firm,  without  showing 
that  the  money  was  applied  to  the  use  of  the  firm.  But  this  is 
not  a  universal  rule.  For  if  this  be  not  shown,  and  even  if  it 
be  proved  that  the  money  was  not  so  applied,  yet  the  firm  will 
be  liable  for  it,  if  it  were  borrowed  in  their  name  by  a  partner 
whom  they  had  apparently  clothed  with  authority  to  borrow  it 
for  them,  (d)  This  question  can  be  decided  in  many  cases  only 
by  the  special  circumstances  attending  the  transaction.  For  if 
money  has  been  actually  borrowed  by  one  partner  on  the  credit 
of  the  firm,  and  in  the  course  of  the  business  of  the  firm,  the  other 
partners  are  liable,  although  the  money  was  misapplied  by  him 
who  borrowed  it.  [e]  And  if  the  money  be  borrowed  by  one 
partner,  not  expressly  on  his  individual  credit,  and  it  was  in 
part  borrowed  for  and  used  by  the  firm,  the  copartners  are 
liable.  (/)      And  where  the  money  of  a  third  *person  is  in  the 

(cc)  Davis  V.  Gowen,  17  Maine,  387.  ship  name  for  money  bond  Jidc  lent,  the 

(d)  In   Etheridge  v.  Binncy,    9  Pick,  lender  supposing  that  one  partner  has  the 

272,  it  was  held,  that  in  case  of  a  limited  authority  of  the  house  to  borrow,  and  that 

and  dormant  partnership  carried  on  hy  one  he  is  borrowing  for  the  purpose  of  the 

of  the  partners  in  his  individual  name,  if  house.     But  ifthere  he  (/ross  tmiligcncc,  and 

he  borrow  money,  representiiif/  it  to  be  for  the   transaction    be  out   of  the   oixlinary 

the  rise  of  the  pai-tnership,  the  dormant  part-  course  of  business,  tlic  lenders  cannot  re- 

ners  will  be  liable,  without  proof  Ity  the  cover  of  the  other  partners,  if  the  money 

creditor  that  the  money  went  to  the  use  of  be  misajiplied." 

the  partnership.     But  it  was  held  otlier-         (/')  Churcli  r.  Sparrow,  5  Wend.  223  ; 

wise,  if  there  were  no  such  i"e]jresentations.  Whitakcr  v.  Brown,  16  id.  505  ;  Miller  v. 

— See  Whitakerr.  Brown,  16  Wend.  505,  Manice,  G  Hill,  114.     Whether  the  money 

where  it  was  held  that  a  note,  given  by  one  was  so   borrowed  and  ajjpropriated  is  a 

partner  in  the  name  of  the  tirm,  is  of  itself  question  for  the  jury.     Church  v.  Sparrow, 

presumi)tive  evidence  of  the  existence  of  a  supra. — In  Miller  v.  Manice,  sxpra,   Wal- 

partnership  debt,  and  if  the  other  partners  ivoi-th,    Ch.,   is  reported    to    have    said  : 

seek  to  avoid  the  payment,  the  burden  of  "  Where  a  third  person  lends  money  to  one 

proof  lies  u]jon  them  to  show  tliat  the  note  of  the  copartners  upon  the  check  or  notes 


was  given  in  a  matter  not  relating  to  the 
partnership  business,  and  that  also  with 
the  knowledge  of  the  payee.  See  Tliick- 
nesse  v.  Bromilow,  2  Cronip.  &  Jerv.  425  ; 
Barrett  v.  Swann,  17  Maine,  180;  Ens- 
minger  v.  Marvin,  5  Blackf  210;  Bank 
of  United  States  v.  Binnc}%  5  Mason,  176. 
(e)  Emerson  v.  Harmon,  1 4  Maine,  27 1  ; 
Church  V.  Sparrow,  5  Wend.  223  ;  Onon- 
daga County  Bank  v.  DePuy,  17  id.  47  ; 
Waldo  Bank  v.  Lumbcrt,  1G"  Maine,  416; 
Winship  i'.  Bank  of  United  States,  5  Pet. 
529  ;  Steel  v.  Jennings,    Cheeves,  183. — 


of  the  tirm,  he  has  a  right  to  presume  it  is 
for  the  use  of  the  lirm,  unless  tliere  is 
something  to  create  a  suspicion  that  the 
money  is  not  borrowed  for  the  firm,  and 
that  the  borrower  is  committing  a  fraud 
upon  his  copartners.  And  where  money 
is  thus  borrowed  upon  the  note  or  check 
of  the  firm,  the  members  of  the  firm,  or 
those  of  thenl  to  whom  the  credit  was 
given  by  the  lender,  are  bound  to  show  not 
only  tliat  the  nionc}-  was  not  ajiplied  to 
tiicir  use,  but  also  tliat  tlie  lender  had 
reason    to    believe   it   was    not   intended 


But  see  Lloyd  v.  Freshfield,  2   Carr.  &  to  be  so  ap])lied  at  the  time  it  was  lent. 

Payne,  325,  wliere  Bai/ley,  J.,  is  reported  Bond  r.  Gil)Son,  1  Camp.  185  ;  Whitakcr 

to  have  Kaid  :  "In  point  of  law,  one  of  v.  Brown,  16  AVcnd.  505."     See  further, 

several  partners  may  pledge  the  partner-  Jaques  v.  Marquand,  6  Cowen,  497. 

[164]  # 


CII.  XII.] 


PARTNERSHIP. 


160 


hands  of  a  copartner  as  trustee,  and  he  applies  it  to  the  use  of 
the  firm,  with  the  knowledge  and  consent  of  the  copartners,  they 
are  certainly  bound,  (g-)  And  it  has  been  decided,  upon  strong 
reasons,  that  they  are  so  held  without  their  knowledge  and  con- 
sent, (k)  Still,  if  a  partner  borrows  money  on  his  individual 
credit,  and  subsequently  applies  it  to  the  benefit  of  the  firm, 
this  does  not  make  the  firm  liable  to  the  original  lender.  (?) 

*It  was  decided  many  years  ago,  in  one  case,  that  a  purchase 
by  one  partner  bound  the  others ;  and  in  another  case,  that  a 
sale  by  one  partner  bound  the  others ;  (j)  and  these  rules  are 


{(j)  Hutchinson  v.  Smith,  7  Paige,  26; 
Jaqties  v.  Maniuand,  6  Cowcn,  497 ; 
Nicholson  v.  Lcavitt,  4  Sandf.  309. 

(h)  lUdiartlson  v.  French,  4  Met.  577. 
In  tills  case  it  was  determined  that  wlicre 
an  administrator,  who  is  a  memlicr  of  a 
partnei-slii|),  applies  to  the  partnership 
concerns  money  belonging  to  his  intestate's 
estate,  and  afterwards  gives  the  note  of 
the  firm  to  a  creditor  of  the  intestate,  to 
whom  such  money  was  due  in  discharge 
of  such  creditor's  claim  on  the  estate,  the 
finn  is  l)()und  to  i>ay  the  note,  although 
the  money  was  not  in  the  hands  of  the 
finn  when  flic  note  was  given.  And  JLih- 
baril, ,].,  in  giving  the  oi)inion  of  the  court, 
said  :  "  The  defence  relied  u])on  in  this 
case  is,  that  the  money  of  tlie  plaintilf 
never  came  to  the  use  of  the  firm  of  1*. 
Ulodgett  &.  Co.,  and  c»nse(iuently  that  the 
note  declarefl  on  was  without  consirlcration; 
that  if  tlie  money  in  the  hands  of  1'.  IJloil- 
pctt,  as  one  of  the  administrators  of  George 
Blodgett,  and  helongiii^'  to  tliat  estate,  was 
used  hy  the  firm  of  i\  lilodgett  &  Co.,  the 
firm  were  nf)t  the  debtors  to  the  several 
CR'<litiirs  of  the  estate,  between  whom  and 
them  there  w;ls  no  privity,  Imt  to  the 
administrators  of  the  estate;  and  that  the 
remedy  of  the  creditors,  of  whom  the 
plaintitl"  was  one,  was  on  the  boml  of  the 
administriUoi-s.  Without  controverting 
this  prop()>iti<>n,  we  think  the  plainliirs 
case  can  be  distinguishcil  from  it.  The 
firm  of  P.  IJlodgftt  &  Co.  have  the  use  of 
the  in(»ney  of  the  estate  which  they  have 
borrowed  from  the  iidministrators.  If, 
then,  the  jilaintiff,  knowiui:  this,  is  willing 
to  (li-iharj;:c  her  claim  a;::iinst  the  estate, 
and  take,  in  lieu  thereof,  the  note  of  th<' 
firm,  it  seems  to  us  that  the  transaction  is 
11  valid  one,  and  that  the  iu)tc  is  ;;iven  on 
a  good  consideration.  Supjiosing  the 
transaction  to  tqiiiear  in  the   books  of  the 


firm,  the  administrators  on  the  estate  of 
George  Blodgett  will  be  charged  with  the 
amount  of  the  note  given  to  the  plaintiff"; 
and  the  note  will  he  entered  in  the  account 
of  notes  payable,  and  the  receipt  of  tlie 
])laintifF,  and  her  onler  for  her  dividend 
upon  the  estate,  will  he  a  good  voucher  for 
the  defendants  to  sustain  tlieir  charge  for 
so  much  money  returned  to  the  ailminis- 
trators.  And  we  are  further  of  opinion 
that  it  was  not  necessary,  as  was  ruled  by 
the  Court  of  Commoii  Pleas,  that  the 
money  should  have  been  substantially  in 
hand,  at  the  time  of  giving  the  note,  to 
enable  the  plaintiff  to  recover  upon  it 
against  tlie  firm.  It  was  suflieient  for  that 
purpose  if  the  money,  to  which  the  plaintiff 
liad  an  equitable  claim,  had  in  fact  been 
used  by  the  firm,  to  authorize  the  giving 
of  the  note  so  as  to  bind  them  ;  it  being 
the  sulistitution  of  one  creditor  of  the  firm 
for  another,  for  a  good  consideration,  by 
consent  of  the  different  parties  concerned. 
For  whether  the  defendant,  French,  was 
ignorant  or  not  of  the  giving  of  the  note, 
at  the  time,  the  act  of  his  cojiartiier  in  this 
respect  is  e(iually  binding  upon  him,  the 
firm  having  had  the  money." 

(/)  Green  v.  Tanner,"  8  Met.  411; 
Bcvan  v.  Lewis,  1  Sim.  376  ;  Gr.aefF  v. 
Ilitchman,  f>  Watts,  4.54  ;  Logan  v.  Bond, 
13  Geo.  192;  Wiggins  v.  Hammond,  1 
Jlissouri,  121.  If  tlie  note  be  signed  A  B, 
for  A  B  &  Co.,  the  firm  will  In'  liable. 
Staats  r.  Howiett,  4  Denio,  559.  If  a 
partner  bon'ow  money  on  his  own  note 
for  the  use  of  the  firm,  he  nn>y  afterwards 
substitute  the  note  of  the  firm  for  his  own, 
and  it  will  be  no  fraud,  and  the  firm  will 
be  bound.  Union  Bank  v.  Katon,  5 
Humph.  499. 

(/■)  Lambert's  ca.sc,  Godbolt,  H.  244; 
Hyat  I'.  Hare,  Comb.  383.  Ami  see 
Winship   v.   Bank   of  United    States,    5 

[1G5]   • 


ler 


THE   LAW   OF   CONTRACTS. 


[book  I. 


the  basis  of  a  partnership  liabiUty  now.  And  the  seller  or  the 
purchaser  will  not  be  affected  by  the  fraudulent  intention  of  the 
partner  in  the  transaction,  unless  there  has  been  collusion,  or 
want  of  good  faith,  or  gross  negligence,  on  his  part,  (k)  But 
the  power  of  one  partner  to  dispose  of  partnership  property  is 
confined  strictly  to  personal  effects,  (/)  A  copartner  rrjay  bind 
the  firm  in  matters  out  of  their  usual  course  of  business,  if  they 
arose  out  of  and  were  connected  with  their  usual  business,  (m) 
Partners  may  be  made  liable  for  the  torts  of  a  copartner  if 
done  apparently  in  due  course  of  the  business  of  the  firm,  and 
the  existence  of  the  copartnership  and  its  business  is  that  which 
gives  the  opportunity  for  the  wrong  and  injury  inflicted  *upon 
the  innocent  party,  (n)     It  has  been  held  that  one  partner  might 


Peters,  561;  Walden  ?'.  Sherburne,  15 
Johns.  422  ;  Mills  v.  Barber,  4  Dfiy,  430  ; 
Douf^al  V.  Cowlcs,  5  Day,  515. 

(k)  Bond  V.  Gibson,'  1  Camp.  185. 
Assumpsit  for  goods  sold  and  delivered. 
It  appeared  that  while  the  defendants  were 
carrying  on  the  trade  of  harness-makers 
together,  Jephson  bought  of  the  plaintiff 
a  great  number  of  bits  to  be  made  up  into 
bridles,  which  he  can-ied  away  himself ; 
but  that  instead  of  bringing  them  to  the 
shop  of  himself  and  his  copartner  he  im- 
mediately pawned  them  to  i-aise  money  for 
his  own  use.  Gazelcc,  for  the  defendant 
Gibson,  contended  that  this  could  not  1)C 
considered  a  partnership  debt,  as  the 
goods  had  not  been  bought  on  the  partner- 
ship account,  and  the  credit  appeared  to 
have  been  given  to  Jephson  only.  He  al- 
lowed the  case  would  have  l)cen  different, 
had  the  goods  once  been  mixed  with  the 
partnership  stock, or  if  proof  had  been  given 
of  former  dealings  upon  credit  between  the 
plaintiff  and  the  defendants.  Lord  Ellcn- 
boroiu/h :  "  Unless  the  seller  is  guilty  of 
collusion,  a  sale  to  one  jiartner  is  a  sale 
to  the  partnership,  with  whatever  view  the 
goods  may  be  bought,  and  to  wliatcvcr 
purposes  they  may  be  applied.  I  will 
take  it  that  Jephson  here  meant  to  cheat 
his  copartner ;  still  the  seller  is  not  on 
that  account  to  suffer.  He  is  innocent ; 
and  he  had  a  right  to  suppose  that  the  in- 
dividnal  acted  for  the  partnership."  Ver- 
dict for  the  plaintiff'.  —  See  McCullough 
r.  Sonimerville,  8  Leigh,  415;  Arnold  v. 
Brown,  24  Pick.  89  ;  Tapley  v.  Butter- 
field,  1  Met.  518;  Anderson  v.  Tompkins, 
1  Brock.  456 ;    Pierpoint  v.   Graham,  4 

[166] 


Wash.  C  C.  2.34 ;  Kirlty  v.  Ingersoll,  1 
Harr.  Ch.  R.  172;  Whitton  v.  Smith, 
Freem.  Cli.  R.  231. 

(/)  Anderson  r.  Tompkins,  1  Brock. 
456.  S/iaw,  C.  J.,  in  Ti^pley  v.  Butter- 
field,  1  Met.  519;  Coles  v.  Coles,  15 
Johns.  159. — Nor  can  one  partner,  with- 
out special  authority,  ])ind  the  firm  by  a 
contract  for  the  sale  of  real  estate  em- 
ploj'ed  in  the  business  of  the  fftm.  Law- 
rence V.  Taylor,  5  Hill,  107. 

(wOSandilands  v.  Marsh,  2  B.  &  Ald.673. 

(h)  Willet  V.  Cliambers,  Cow])er,  814. 
So  where  one  jjartner  purchases  such 
articles  as  might  be  of  use  in  the  partner- 
ship business,  and  instantly  converts  them 
to  liis  own  separate  use,  the  partnership  is 
liable.  Bond  r.  Gibson,  1  Camp.  185. 
A  employed  B  and  C,  who  were  partners 
as  wine  and  spirit  merchants,  to  purchase 
wine  and  sell  the  same  on  commission. 
C,  the  managing  partner,  represented  that 
he  had  made  the  purchases,  and  that 
he  had  sold  a  ])art  of  the  wines  so  pur- 
chased at  a  profit ;  the  proceeds  of  such 
supposed  sales  he  paid  to  A,  and  ren- 
dered accounts,  in  which  he  stated  the 
purchases  to  have  been  made  at  a  certain 
rate  per  pipe.  In  fact,  C  had  neither 
bought  nor  sold  any  wine.  The  transac- 
tions were  wholly  fictitious,  but  B  was 
wholly  ignorant  of  that.  U])on  the  whole 
account  a  larger  sum  had  been  reiiaid  to 
A,  as  the  proceeds  of  tliat  part  of  the  wine 
alleged  to  be  resold,  than  he  had  advanced; 
but  the  other  part  of  the  wine,  which  C 
represented  as  having  been  purchased, 
was  unaccounted  for.  Held,  ttuit  B  was 
liable  for  the  false  representations  of  Ills 


CII.  XII.] 


PARTNERSHIP. 


*162 


bind  the  firm  by  a  guarantee  or  letter  of  credit  given  in  their 
name ;  (o)  but  it  seems  to  be  now  settled  that  there  must  be  a 
special  authority  for  that  purpose ;  but  this  may  be  implied 
from  the  common  course  of  business  or  previous  transactions 
between  the  parties,  or  from  subsequent  *adoption  by  the  fii-m.{p) 
And  if  the  word  "  surety  "  be  added  to  the  signature  of  the  firm, 
this  casts  upon  the  holder  the  burden  of  proving  the  assent  of 
the  firm,  (q)  And  if  the  signature  or  indorsement  be  in  the 
usual  form,  but  the  party  receiving  it  knows  that  it  is  given  by 
way  of  suretyship,  he  must  prove  by  direct  evidence  or  equiva- 
lent circumstances  the  assent  of  the  partners,  (r) 


partner;  and  that  A  was  entitled  to  re- 
tain tlio  money  that  had  Ijecu  paid  to  him 
upon  these  fictitious  tninsaotions,  as  if 
they  were  real.  l{:i\)\)  v.  Latham,  2  15.  & 
Aid.  7'Jj.  See  Stone  v.  JNIarsh,  6  B.  & 
C.  .531,  (Fauntleroy's  case);  Hume  v. 
Bolland,  Kyan  &  Moody,  371  ;  Kilby  v. 
Wilson,  Kyan  &  Moody,  178;  Edmonson 
V.  Davis,  4  Esp.  14  ;  Morcton  c.  Hardern, 
4  IJ.  &  C;.  223  ;  Bal)C0clv  r.  Stone,  3  Mc- 
Lean, 172.  —  The  conversion  hy  one  part- 
ner of  ])roperty  wliich  came  into  the  ])OS- 
scssion  of  the  iirm  on  partnerslu|)  account, 
is  the  conversion  of  all.  Nisbet  v.  Patton, 
4  Bawle,  120.  The  partnersiiip  is  liable 
to  the  innocent  indorsee  of  a  promissory 
note  si;;ned  by  one  of  tlie  members  in  tJie 
name  of  tiie  tirm,  without  tbe  i^nowledj^e 
or  consent  of  his  partner;  ahhouj^h  the 
note  was  ^'ven  for  a  debt  unconaccted 
witli  the  business  of  tiic  i)artners]iip. 
Boardman  r.  Gore,  15  Mass.  331.  So  tlic 
partnersiii|i  is  liable  for  tiie  fraudulent 
re|)rcseiitations  of  a  jiartncr  rclatiTe  to 
matters  in  the  course  of  its  business,  al- 
thoufxh  witiiout  tlie  kno\vled;;e  of  his  co- 
])artners.  Dorenms  v.  I^lcCormick,  7 
Gill,  49  ;  Beach  v.  State  Bank,  2  Cart. 
(Ind.)  489;  Hawkins  r.  A])plebv,  2  Sand. 
S.  C.  K.  421.  Saudfurd,  J.:"  "It  has 
loiifj  been  establisiied  tiiat  a  |)artner  is 
lial)le  in  assumpsit  for  tlie  conse(picnces 
of  frauds  ])ractised  by  iiis  copartner  in  the 
transaction  of  tlio  business,  of  wliicli  lie 
was  entirely  ignorant,  and  altliouf^h  ho 
derived  no  benelit  from  tiie  fraud.  Tiiis 
is  upon  the  "ground  tiiat,  by  forminj,'  tlie 
fonnection,  ]tartuers  jmbhsli  to  the  world 
fiicir  confidence  in  eacli  other's  integrity 
ami  good  faith,  and  impliedly  agree  to  be 
n'sjiunsible  for  what  they  shall  respec- 
tively do  within  the  scope  of  their  partner- 


ship business  ;  and  if,  by  the  wrongful  act 
of  one,  a  loss  must  fall  upon  a  stranger, 
or  upon  the  otiier  partner,  who  is  ecpially 
innocent,  the  latter  having  been  the  cause 
or  occasion  of  the  contidence  reposed  in 
liis  delinquent  associate  must  suffer  the 
loss."  It  is  held  that  the  implied  autlior- 
ity  of  a  partner  does  not  extend  to  illegal 
contracts,  as  the  borrowing  of*  money  at 
usurious  interest,  and  will  not  bind  his  co- 
partners without  their  knowledge  or  con- 
sent. Hutchins  v.  Turner,  8  IIuin])h. 
415.  The  court  in  tliis  case  said  :  "The 
liability  of  a  partner,  arising  out  of  this 
implied  assent,  and  undertaking  to  be  re- 
sponsible for  the  acts  of  his  copartner  on 
behalf  of  the  tirm,  in  the  ordinary  busi- 
ness and  transactions  thereof",  cannot  be 
held  to  extend  to  illegal  contracts.  This 
would  be  absurd.  An  agency  or  author- 
ity to  a  partner  to  violate  the  jirovisions 
of  a  pul)!ic  statute  cannot  be  im))Iied ; 
nor  can  it  be  implied  that  such  illegal  act 
is  within  the  scope  of  the  partnership, 
which  could  only  exist  for  lawful  pur- 
poses." 

(o)  Hope  V.  Cust,  cited  in  1  East,  48 ; 
Ex  part n  Gardoin,  15  Vcsey,  286. 

(l>)  Crawford  v.  Stirling,  4  Esp.  N.  P. 
207;  Sutton  v.  Irwiiie,  12  S.  &  11.  13; 
Ex  piirte  Noltc,  2  G.  &  Jameson,  295 ; 
llarnill  v.  Purvis,  2  I'eun.  Kep.  177; 
(Bremer  v.  Higginson,  1  Mason,  323 ; 
Eooto  v.  Sabin,  19  Johns.  154;  Laverty 
r.  Burr,  1  Wend.  531  ;  N.  Y.  Fire  Insur- 
ance Co.  V.  Bennett,  5  Conn.  574  ;  An- 
drews i>.  Planters  Bank,  7  Sm.  &  Mar.  192; 
Langan  v.  liewett,  13  Sm.  &  Mar.  122. 

(v)  Boyd  r.  PlumI),  7  Wend.  309  ;  Kol- 
lins  r.  Stevens,  31  Maine,  454. 

()•)  Darling  v.  March,  22  Maine,  188. 

[1G7] 


163* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


A  release  by  one  partner  is  a  release  by  all,  both  in  law  and 
in  equily.  (s)  And  a  release  to  one  partner  is  a  release  to  all.  (t) 
But  any  fraud  or  collusion  destroys  the  effect  of  such  release. 
And  the  release  to  discharge  absolutely  all  the  copartners,  must 
be  a  technical  release  under  seal,  (w)  And  *a  discharge  of  one 
of  several  joint  debtors  by  operation  of  law,  without  the  con-- 
sent  or  cooperation  of  the  creditor,  takes  from  him  no  remedy 
against  the  other  debtor,  (v) 

The  signature  or  acknowledgment  of  one  partner,  in  matters 
relating  to  the  partnership,  in  general  binds  the  firm  ;  (iv)  as 
notice  in  legal  proceedings,  or  abandonment  to  insurers  by  one 


(s)  Pierson  v.  Hooker,  3  Jolins.  68 ; 
Bruen  v.  Marquand,  17  Johns.  58;  Salmon 
V.  Davis,  4  Bimiey,  375  ;  Morse  v.  Bel- 
lows, 7  New  Hamp.  567 ;  Halsey  i\ 
Whitney,  4  Mason,  206  ;  Smith  v.  Stone, 
4  Gill  &  Johns.  310;  McBridc  v.  Ilagan, 
1  Wend.  326.  The  rule  of  law  and  equity 
is  the  same,  and  only  collusion  for  fraud- 
ulent purposes  between  the  partners  and  a 
debtor  destroys  the  effect  of  such  release. 
Barker  v.  Richardson,  1  You.  &  Jer.  362  ; 
Cram  v.  Cadwell,  5  Cowen,  489. — And 
the  fraud  must  be  clearly  established. 
Arton  V.  Booth,  4  Moore,  192  ;  Furnival 
V.  Weston,  7  Moore,  356.  And  see  Legh 
V.  Legh,  1  B.  &  P.  447  ;  Jones  v.  Herbert, 
7  Taunt.  421  ;  Mountstephen  v.  Brooke, 
1  Chitty,  391.  —  AVhere  one  partner 
signed  a  general  release  to  a  debtor  of  the 
firm,  and  it  did  not  appear  whether  it  was 
intended  to  apply  to  separate  or  to  part- 
nership denianils,  or  whether  the  subscrib- 
ing partner  had  on  his  separate  account 
any  demand  against  the  debtor,  the  re- 
lease was  held  a  discharge  from  debts  due 
the  partnership.  The  release  was  a  part 
of  an  indenture  of  assignment,  in  trust  for 
creditors.  Emerson  v.  Knowcr,  8  Pick. 
63. — Whej'c  such  release  is  for  all  de- 
mands, parol  proof  is  not  admissible  that  a 
particular  debt  was  not  intended  to  be  re- 
leased.    Pierson  v.  Hooker,  3  Johns.  68. 

[t]  Hammon  v.  Boll,  Marcli,  202 ; 
Bower  v.  Swadlin,  1  Atk.  294;  Collins 
V.  Prosser,  1  B.  &  C.  682 ;  American 
Bank  v.  Doolittle,  14  Pick.  126;  Good- 
now  V.  Smith,  18  Pick.  416;  Claggett  r. 
Salmon,  5  Gill  &  Johns.  314;  Burson  v. 
Kincaid,  3  Penn.  57.  —  So  a  discharge  of 
one  surety  of  his  icliole  UahiUty  is  a  dis- 
charge to  the  others.     Nicholson  v.  Eevill, 

[168] 


4  Ad.  &  El.  675 ;  Mayhew  v.  Crickctt,  2 
Swanst.  192.  —  But  a  release  to  one  part- 
ner may,  by.  means  of  recitals  and  pro- 
visos, be  limited  in  its  operations  to  the 
partner  to  whom  it  is  given.  Solly  v. 
Forbes,  4  Moore,  448,  2  Brod.  &  Bing. 
38.     See  Wiggin  v.  Tudor,  23  Pick.  444. 

(m)  Shaw  V.  Pratt,  22  Pick.  305  ;  Walk- 
er V.  IMcCuUoch,  4  Greenl.  421  ;  Harri- 
son V.  Close,  2  Johns.  449  ;  Catskill  Bank 
V.  Messenger,  9  Cowen,  37  ;  Lnnt  v.  Ste- 
vens, 24  Maine,  534  ;  Shotwell  v.  Miller, 
Coxe,  81.  — It  has  been  held  that  a  com- 
position deed,  given  by  the  joint  creditors 
of  a  partnership  upon  its  dissolution  to 
that  partner  who  winds  up  the  atl'airs  of 
the  firm,  is  in  the  nature  of  a  release,  and 
will  discharge  the  other  partner  from  his 
liability,  isx  pnrte  Slater,  6  Vesey,  146. 
—  But  a  covenant  not  to  sue  one  of  several 
partners  will  not  have  the  same  effect. 
Coll.  on  Part.  §  608,  and  cases  cited. 

(r)  Ward  v.  Johnson,  13  Mass.  152; 
Pobertson?-.  Smith,  18  Johns.  459;  Tooker 
V.  Bennett,  3  Caines,  4 ;  Townsend  v.  Rid- 
dle, 2  N.  H.  449. 

(w)  See  Corps  v.  Robinson,  2  Wash. 
C.  C.  388  ;  Bound  v.  Lathrop,  4  Conn. 
336  ;  Eisk  v.  Copeland,  Overt.  383.  — 
During  the  partneiship  one  may  enter  an 
aj)ptarance  in  an  action  to  b.ind  the  wliole. 
Bennett  v.  Stickncy,  17  Verm.  531.  See 
co«/ra,  Haslet  i'.  Street,  2  McCord,  311; 
Loomis  r.  Pierson,  Harper,  470.  But 
after  dissolution  one  cannot  acknowledge 
service  for  the  firm.     Demott  v.   Swaim, 

5  Stew.  &  Porter,  293.  And  service  of 
process  upon  one  partner,  after  dissolu- 
tion, will  not  authorize  a  judgment  against 
tlie  firm.  Dimcau  v.  Tombeckbec  Bank, 
4  Porter,  181. 


CH.   XII.] 


PARTNERSHIP. 


164-*165 


who  has  effected  insurance  for  himself  and  others,  (x)  And  if 
one  of  several  joint  lessors,  partners  in  trade,  sign  a  notice  to 
quit,  this  will  be  valid  for  all ;  (y)  but  not  if  they  are  not  part- 
ners in  trade,  (z)  And  in  general  a  notice  to  one  partner  is 
binding  upon  all.  (a)  Where  a  bill  accepted  by  a  firm  is  dis- 
honored by  one  partner,  notice  of  the  dishonor  need  not  be  given 
to  the  other  partners  ;  (b)  and  where  a  bill  or  note  is  indorsed  by 
a  firm,  which  is  dissolved  before  the  note  is  due,  notice  to  one 
of  the  partners  by  a  holder  not  having  knowledge  of  the  disso- 
lution, is  sufficient,  (c)  And  where  the  *drawer  of  a  bill  is  a 
partner  of  the  house  on  which  it  is  drawn,  he  is  chargeable 
without  notice  to  him  of  the  dishonor  of  the  bill,  (d) 

In  some  cases  very  slight  circumstances  appear  to  be  suffi- 
cient to  affect  a  party  with  the  liabilities  of  partnership,  (e) 
*But  the  mere  fact  of  persons  giving  a  joint  order  for  goods  will 
not  make  them  liable  as  partners,  if  it  appear  otherwise  that 


(r)  Hunt  I'.  Royal  Ex.  Assurance  Co. 
.5  Manic  &  Sel.  4".  So  if  one  i)urtncr, 
for  himself  and  partner,  si}j:n  a  note  for 
the  weekly  payment  under  the  Lord's  act, 
such  note  would  bind  the  firm.  Meux  r. 
Humphrey,  8  Term,  25  ;  Burton  v.  Issit, 
5  Barn.  &  Aid.  267. 

(y)  Doc  I'.  Hulme,  2  Mann.  &  Ryl. 
48.3. 

(:)  C.oodtitlc  V.  "Woodward,  3  B.  & 
Aid.  089.  But  one  joint-tenant  may  ap- 
point a  bailiff  to  distrain  for  rent  due  all 
tlic  joint-tenants.  Robinson  r.  Ilofman, 
4  Binj;.  562.  And  one  partner  may  au- 
thorize a  clerk  to  draw  or  accept  notes  or 
bills,  in  the  name  of  the  c()m[)anv.  Til- 
lior  v.  Whitehead,  1  Dall.  269. 

((/)  Alderson  r.  P<)])e,  1  Camp.  404  ; 
Ex  piirtr  W.iitnian,  1  Mont.  &  Avr.  .364  ; 
ri«;;,'ins  v.  Ward,  2  C.  &  M.  424  ;  Carter 
V.  Southall,  3  Mccs.  &  Wels.  128.— 
Notice  to  one  of  several  partners  of  a  prior 
unrecorded  deed  is  notice  to  all  the  part- 
ners, and  will  avoid  a  deed  subscrpiently 
made  of  the  same  land  to  all  the  partners. 
Baniey  i'.  Currier,  1  Chipman,  .315  ;  Gil- 
by  r.  Sin;;lcton,  3  Litt.  250.  So,  notice  of 
want  of  consideration  for  a  promissory 
note  to  one  partner  atVects  the  rest.  Quinn 
I'.  Fidler,  7  Cush.  224. —  So,  in  e(piity,  ser- 
vice of  a  subpa'ua  u])on  one  partner  may, 
upon  notice,  be  made  fjood  service  upon 
his    copartner    abroad.      Carrington     v. 

VOL.   I.  15 


Cantillon,  Bunb.  107  ;  Coles  v.  Gumey, 
1  Madd.  187.  And  sec  Lansing  v.  Mc- 
Killup,  7  Cowen,  416. 

(It)  Porthousc  V.  Parker,  1  Camp.  82. 
See  Dabney  v.  Stidger,  4  Smcdes  &  Marsh. 
749.  Bnt  it  is  otherwise  in  case  of  mere 
joint  indorsers,  who  are  not  partners; 
notice  in  such  ca.se  must  be  given  to  both. 
Shcpard  r.  Hawley,  1  Conn.  368.  Even,, 
it  seems,  to  hold  either.  Bank,  &c.,  v. 
Root,  4  Cowen,  126. 

(c)  Coster  !•.  Thom.ison,  19  Ala.  717  ; 
Nott  V.  Douming,  6  Louis.  R.  684.  And 
in  such  case  it  has  been  said,  that  one 
partner  may,  after  dissolution,  waive  de- 
mand and  notice  for  the  other  partners  as 
well  as  for  himself.  Darling  c.  March, 
22  Maine,  184.     But  this  may  be  doubted. 

(<l)  Gowan  v.  Jackson,  20"  Johns.  176. 
Notice  of  the  ilishonor  of  a  note  given  to 
the  surviving;  ])artner  of  a  finn  fixes  the 
liability  of  the  partnership,  and  binds  the 
rciircsentatives  of  the  deceased  partner. 
Dabney  v.  Stidger,  4  Smcdes  &  Marsh. 
749 ;  Cocke  r.  Bank  of  Tennessee,  6 
Humph.  51. 

(' )  Parker  v.  Barker,  1  Brod.  &  Bing.^ 
9,  3  Moore,  226.  —  Persons  arc  \fi  be 
treated  as  partners  if  they  so  conduct  and 
hold  themselves  out  to  others,  whethcc 
their  contract  would  make  them  so  or  not. 
Stearns  r.  Haven,  14  Verm.  540.  Sec 
notes  (/),  ((j),  and  (h),post. 

[169] 


166* 


THE   LAW   OF   CONTRACTS. 


[book 


the  seller  trusted  to  them  severally.  (/)  Nor  is  a  person  made 
a  partner  by  a  stipulation  that  a  firm  will  be  governed  by  his 
advice,  (g-) 

No  particular  mode  of  holding  oneself  out  as  a  partner  is 
necessary  to  make  one  liable  as  such  ;  but  it  must  be  a  volun- 
tary act ;  for  otherwise  a  party  might  be  charged  with  a  ruinous 
responsibility  without  his  knowledge,  intention,  or  assent,  and 
without  fault  on  his  part,  and  through  the  fraud  or  wrongful 
*acts  of  others.  (A)     Where  a  person  is  received  as  a  new  mera- 


(/)  Gibson  v.  Lupton,  9  Bing.  297. 
In  this  case  the  two  defendants,  wlio  were 
not  general  partners,  gave  a  joint  order  to 
the  plaintiff's  agent  for  the  purchase  of 
some  wheat.  The  order  contained  these 
words,  "  Payment  for  the  same  to  be 
drawn  upon  each  of  us  in  the  usual  man- 
ner." In  reply  to  this  order,  the  plaintiffs 
wrote  to  the  defendants  :  "  We  have  made 
a  purchase  for  your  joint  account."  At 
the  same  time  they  drew  a  bill  upon  each 
defendant  for  one  third  of  the  price,  each 
bill  being  for  one  moiety  of  the  third. 
They  afterwards,  on  the  wheat  being 
shipped,  drew  like  bills  for  the  remainder 
of  the  price,  having  previously  written : 
"  We  liold  you  both  harmless  for  the  ad- 
vance up  to  the  period  of  lading  and  in- 
voice." The  bill  of  lading,  on  coming 
into  tlie  possession  of  the  defendants,  was 
indorsed  by  each  of  them.  Under  these 
circumstances,  the  Court  of  Common 
Pleas  held  that  the  defendants  were  only 
severally  liable  on  the  contract,  each  being 
responsible  for  the  j)urchase  of  a  moiety 
only  of  the  cargo.  See  also,  Hopkins  v. 
Smitli,  1]  Johns.  161  ;  Livingston  v. 
Koosevelt,  4  id.  266  ;  Mclver  v.  Humble, 
16  East,  169.  —  So  where  in  an  action  of 
assumpsit,  C  was  cliargcd  as  a  partner 
with  A,  on  the  authority  of  B,  who  in- 
formed the  ])hiintitf  before  he  funiislied 
the  goods,  they  were  in  partnership,  and, 
at  the  trial,  B's  clerk  proved  that  B  liad 
been  in  the  habit  of  discounting  bills  for 
A,  and  that  in  discounting  a  bill  at  one 
time  for  A,  he  had  introduced  C  to  him 
as  his  partner,  but  tliat  the  only  connection 
in  trade  between  B  and  the  defendants 
was  "in  discounting  bills ;  Lord  Kenyon 
said  that  this  evidence  was  not  sufficient 
to  charge  C  as  A's  jjartncr  ;  that  the  in- 
troduction of  C  to  B  should  be  taken 
secniidum  sithjectam  matertam,  that  is,  as 
applying  to  a  transaction  in  which  A  was 

[170] 


concerned  with  B,  the  discounting  of  bills, 
to  which  transaction  only  it  should  be  con- 
fined. De  Berkom  v.  Smith,  1  Esp.  29 ; 
see  also,  Livingston  v.  Roosevelt,  4  Johns. 
266. 

(g)  Barklie  v.  Scott,  1  Huds.  &  Bro. 
83.  Because  it  does  not  hold  him  out  to 
the  world  as  a  partner,  nor  give  him  any 
share  in  the  profits,  nor  empower  him  to 
dissolve,  alter,  or  affect  the  partnership. — 
So  the  facts  that  several  persons  associated 
together  to  run  a  line  of  stage-coaches, 
that  they  had  a  general  meeting,  and  that 
debts  were  contracted  on  account  of  the 
companj',  do  not  prove  a  partnership  as 
between  themselves.  Chandler  v.  Brain- 
ard,  14  Pick.  285;  Clark  v.  Reed,  11  id. 
446. — And  the  fact  that  two  persons  sign 
a  note  jointly  was  hckl  not  evidence  of  a 
partnership  between  them.  Hopkins  v. 
Smith,  11  Johns.  161.  But  see  Carwick 
V.  Vickerv,  Douglas,  653 ;  De  Berkom  v. 
Smith,  1  Esp.  29  ;  3  Kent,  (5th  Ed.)  30, 
and  note.  See  further  what  facts  will 
constitute  a  partnership.  Smith  v.  Ed- 
wards, 2  Harr.  &  Gill,  411.  — Where  the 
terms  of  the  agreement  and  the  facts  are 
admitted,  it  is  always  a  question  of  law 
whether  there  was  a  jiartnership  or  not. 
See  Everitt  v.  Chajnnan,  6  Conn.  347  ; 
Terrill  v.  Richards,  1  N.  &  MeC.  20; 
Drake  c.  Elwyn,  1  Caines,  184;  Beecham 
V.  Dodd,  3  Harr.  485. 

(h)  Such  circumstances  as,  according 
to  the  custom  of  merchants,  usually  indi- 
cate a  partnership,  may  be  given  in  evi- 
dence against  one  whom  it  is  souglit  to 
charge  as  a  partner ;  such  as  the  use  of  his 
name  in  printed  invoices,  bills  of  parcels, 
and  advertisements,  or  on  the  printed 
signs  attached  to  the  place  of  business  ; 
and  these  may  afford  strong  presumptive 
evidence  of  his  acquiescence  in  the  name 
and  cliaracter  of  partner.  In  general,  if 
he  so  acts  as  to  justify  others  in  believing 


CII.  XII.] 


PARTNERSHIP. 


•167 


ber  into  an  old  firm,  and  the  new  firm  recognizes,  by  payment 
of  interest,  a  debt  of  the  old  firm,  this  is  in  general  evidence  of 
an  adoptiop  of  the  debt  by  the  new  firm,  including  the  new 
partner,  which  will  make  him  liable  ;  (i)  but  it  has  *not  always 
nor  necessarily  this  effect.  Some  knowledge  and  assent  of  this 
payment  must  be  brought  home  to  the  new  partner,  and  per- 


him  a  partner,  lie  will  be  liable  as  such. 
SpfiK  (.-r  V.  Billing:,  3  Camp.  .310  ;  Parker 
r.  Barker,  1  Brod.  &  Biii;r.  9,  3  Moore, 
22G.  Nevertheless,  this  evidenec  may  be 
rebutted  by  showing  either  tliat  he  was  en- 
tirely ignorant  of  these  transaetions,  or 
that  he  took  the  proper  means  of  disown- 
ing them  and  denying  his  authority.  One 
is  not  liable  as  a  nominal  i)artner  because 
others  use  his  name  as  that  of  a  member 
of  a  firm,  without  his  consent,  although 
he  previously  belonged  to  the  lirra  ;  pro- 
vided he  has  taken  the  proper  steps  to 
notify  the  public  of  his  retirement.  New- 
some  L\  Coles,  2  Camp.  617.  And  the 
plaiutitt"  should  be  i)repared  to  show  that 
the  acts  of  the  defendant,  which  he  relies 
on  a.s  actsof  ])artnersliip,  were  done  by  the 
defendant,  with  full  knowledge  and  delib- 
eration oTi  his  ]iart.  See  Fox  v.  Clifton, 
6  Bing.  776,  4  M.  &  P.  713. 

(/)  /••>  jxirtr  .Jackson,  1  Ves.  131 .  The 
general  rule,  a.s  well  as  the  exceptions  to 
it  which  may  possibly  occur,  are  well 
illustrated  by  the  case  of  J-Jr  /lartr.  Peele, 
C  Ves.  002.  There  Kirk,  a  warehouseman, 
canying  on  business  under  the  firm  of 
Kirk  and  Conijiany,  being  indebted  to  Sir 
liobcrt  Peele  for  goods  sold,  after  that 
debt  was  contracted  had  entered  into  a 
treaty  with  Ford,  a  breeches-makt'r,  for 
fonning  a  partnership.  About  four  months 
afterwards  a  cftnimissirju  of  bankrujitcy 
issued  against  them.  No  articles  having 
been  executed.  Ford  disputed  the  point  of 
partnership,  which  was  tried  at  law,  and 
the  |iartncrsliip  was  estalilislicd  uiton  the 
evidence  of  acts  done.  A  j)e'itiou  wa« 
presented  l»y  Sir  Kobert  Peele  to  )irovc 
his  debt  as  a  joint  debt.  In  support  of  the 
petition  the  affidavit  of  one  Copeland 
stated,  that  it  was  agreed  that  the  scjiarate 
debts  of  Kirk  should  lie  assumed  liy  the 
nartnci-ship  ;  that  entries  wcri'  made  in  the 
i)ooks  with  the  knowledge  of  Ft)rd  ;  and, 
0  particularly,  that  the  goods  funiishcd  by 
the  jietitioner  were  entered  at  a  reduced 
price.  This  was  opposed  by  the  affidavit 
of  Ford,  denying  the  agR'emcnt,  or  even 
knowledge  of  these  circumstances.     Lord 


Eldon :  "  I  agree  it  is  settled  that  if  a  man 
gives  a  partnership  engagement  in  the 
partnership  name,  with  regard  to  a  trans- 
action not  in  its  nature  a  partnershi])  trans- 
action, he  who  seeks  the  benetlt  of  that 
engagement  must  he  able  to  say  that, 
although  in  its  nature  not  a  partnership 
transaction,  yet  there  was  some  authority 
beyond  the  mere  circumstance  of  partner- 
ship to  enter  into  that  contract,  so  as  to 
bind  the  partnership,  and  then  it  depends 
upon  the  degree  of  evidence.  Slight  cir- 
cumstances might  be  sufficient  where  in 
the  original  transaction  the  party  to  be 
bound  was  not  a  partner  but  at  the  subse- 
quent time  had  acquired  all  the  benefit,  as 
if  he  had  been  a  partner  in  the  original 
transaction  ;  and  it  would  not  be  unwhole- 
some for  a  jury  to  infer  largely  that  that 
obligation,  clearly  according  to  conscience, 
had  been  given  upon  an  implied  authority. 
So  here,  if  this  was  a  case  in  which  it  was 
found  upon  the  trial  that  this  man  was  a 
partner  ujion  a  long-existing  partnership, 
with  a  regular  series  of  transactions,  books, 
&e.,  a  knowledge  of  what  his  partner  had 
been  doing  might  be  infcriTd against  him; 
that  which  in  ciunmon  prudence  he  ought 
to  have  known.  But  that  is  not  the  ease 
of  this  i)artncrship  :  it  was  a  treaty.  It  is 
not  even  yet  agreed  how  the  stock  and 
partnership  were  to  be  formed.  In  the 
course  of  that  treaty.  Ford,  ignorant  of 
law,  i)crmits  acts  to  be  done  which  the  law 
holds  to  be  partnership  acts.  It  is  a  very 
ditt'crent  consideration  whether  this  man, 
so  trepamied  into  a  partni'rshij),  had  got 
regular  books,  &e.  ;  and  it  is  difficidt  to 
say,  not  only  that  knowing  this  he  had 
agree<l  to  it,  but  that  he  knew  it ;  in  which 
case  I  am  afraid  he  must  be  bound.  That 
fact  has  not  been  sufficiently  in<]uircd 
into."  The  order,  therefore,  directed  a 
reference  to  the  commissioiu'rs  to  in(|uire 
whether,  at  the  commencement  of  the  part- 
nership, any  debts  due  from  Kirk,  for  his 
stock  in  trade,  were  as<unied,  and  any 
debts  to  him  carried  into  the  partnership, 
with  the  knowledge  and  assent  of  Ford, 

[171] 


168* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


haps  some  evidence  of  assent  by  the  creditor  to  the  transfer  of 
the  debt  from  the  old  to  the  new  firm,  (j)  The  liability  of  an 
incoming  partner  for  old  debts  is  not  to  be  presumed,  (k) 

The  authority  of  a  partner  to  bind  his  firm  rests  indeed  upon 
a  necessity ;  for  mercantile  business  could  not  be  carried  on  by 
a  partnership  otherwise,  without  great  inconvenience.  And  it 
is  bounded  and  measured  by  this  necessity,  so  that  the  partner- 
ship is  not  bound  by  the  acts  or  contracts  of  any  partner,  not 
within  the  legitimate  scope  of  the  partnership  business,  (kk) 
An  illustration  of  this  may  be  found  in  the  rule  which  is  held 
by  authorities  of  great  weight,  that  one  partner  cannot  bind  his 
firm  by  a  submission  to  arbitration,  without  specific  authority 
from  his  copartners ;  the  reason  given  for  this  rule  being,  that  a 
partner  has  no  implied  authority,  except  so  far  as  is  necessary 
to  carry  on  the  business  of  the  firm.  (/)  Another  reason  is  also 
given,  that  such  *implied  authority  would  deprive  the  other 
partners  of  their  legal  rights  or  remedies. 


(J)  Kirwan  r.  Kinvan,  2  Crompt.  & 
Mees.  617.  la  this  case  it  appeared  that 
A  kept  an  account  in  the  nature  of  a  hank- 
ing account  witli  the  firm  of  B  &  Co.,  and 
annual  accounts  were  rendered  to  him. 
During  the  time  that  A  dealt  with  the 
firm,  all  tlie  partners  retired  except  C,  who 
formed  a  new  partnership  with  K.  On 
the  accession  of  K  a  •  large  capital  was 
brought  into  the  concern.  A's  account 
was  then  transferred  from  the  books  of  the 
■old  to  those  of  the  new  partnershi]),  and 
the  balance  was  struck  annually  as  before ; 
and  A,  until  his  death,  which  happened 
about  three  years  afterwards,  received 
suras  on  account,  and  interest  on  his  bal- 
ance from  the  new  firm,  in  the  same  man- 
ner as  before.  Upon  the  death  of  A,  his 
administrators  brought  an  action  against 
the  (jHondum  partners  and  C  to  recover  the 
balance,  and  in  tliat  action  the  quondam 
partners  contended  tliat  their  responsibility 
had  shifted  to  C  and  K,  and  it  was  argued 
in  their  l)ehalf  that  the  transfer  of  the  ac- 
count into  the  books  of  the  new  firm,  and 
the  payments  of  money  to  A,  amounted  to 
evidence  against  K  that  he  intended  to 
take  the  debt  upon  him.  But  the  Court 
of  Exchequer  were  of  opinion  that  no  in- 
ference of  that  sort  could  be  drawn,  in  the 
absence  of  any  proof  of  A's  assent  to  the 
substitution  of  K  as  bis  debtor,  for  the 
original   partners  ;  and  Bolland,   B.,  ob- 

[1721 


served  further,  that  there  was  notliing  to 
show  that  K  undertook  to  answer  for  the 
debts  of  the  old  firm,  and  the  probabilities 
were  that  he  would  not  incur  further  re- 
sponsibilities. And  although  the  account 
was  transferred  from  the  old  to  the  new 
firm,  the  learned  judge  conceived  that 
tliere  might  be  many  ways  in  which  interest 
might  be  paid  without  K  being  aware  of 
it ;  and  the  manner  of  keeping  the  ac- 
counts led  to  the  snpposition  that  he  was 
not  aware  of  it.  See  also,  Ex  parte  Sand- 
ham,  4  Uea.  &  Chit.  812. 

{k)  See  Catt  v.  Howard,  3  Starkic,  5. 

(kk)  Dickinson  v.  Valpy,  10  B.  &  Cr. 
128;  Sandilands  v.  Marsli,  2  B.  &  Aid. 
673  ;  Sims  v.  Brutton,  1  E.  L.  &  E.  446. 
One  partner  cannot  bind  the  firm  or  trans- 
fer its  property  for  his  private  debt.  Ke- 
meys  v.  Kichards,  11  Barb.  312  ;  Lanier  r. 
McCabe,  2  Elor.  32;  unless  the  other 
])artners  authorize  or  ratify  the  act. 
Wheeler  v.  Rice,  8  Cush.  205. 

(/)  Stead  V.  Salt,  3  Bing.  101 ;  Kart- 
haus  V.  Ferrer,  1  Peters,  228  ;  Buchanan 
V.  Currv,  19  Johns.  137;  Harrinuton  v. 
Higham,  13  Barb.  660,  S.  C.  15  id.  524. 
But  sec  Wilcox  v.  Singletary,  Wright,  R. 
420  ;  Southard  v.  Steele,  3  Monr.  435  ;  ^ 
Armstrong  v.  Robinson,  5  Gill  &  Johns. 
412  ;  Taylor  v.  Coryell,  12  Serg.  &  Rawle, 
243. 


I 


CH.  XII.J  PARTNERSHIP.  *  *169 


SECTION  XIII. 

POWER    OF    A    MAJORITY. 

Whether  the  majority  of  the  partners  of  a  firm  can  bind  the 
minority,  is  not  yet  quite  determined  by  authority.  Some  cases 
show  a  disposition  to  admit  this  power,  but  to  confine  its  exer- 
cise to  the  internal  concerns  of  the  firm,  or  to  those  which  are 
of  little  importance.  The  authorities  on  this  subject  will  be 
found  in  our  notes.  («t)  We  think  a  distinction  might  be  drawn 
on  principle,  between  partnerships  made  by  articles,  and  by  their 
provisions  not  determinable  by  either  party  at  pleasure,  and 
those  which  by  mutual  consent  maybe  dissolved  and  terminated 
at  once  by  either  party,  at  his  own  will  and  pleasure.  In  the 
former  case,  it  might  be  said  that  the  majority  should  not  be 
permitttxi  to  govern,  because  the  minority  have  no  refuge,  no 
escape  by  dissolution  ;  and  if  controlled  absolutely  by  the  ma- 
jority, they  might  be  made  to  incur  unreasonable  danger.  But 
where  any  dissenting  partner  may  dissolve  the  partnership  at 
pleasure,  then  the  majority  should  govern.  Because  that  is  but 
saying  to  the  minority,  choose  either  to  go  on  with  us  in  the 
transaction  we  propose  *and  approve,  or  leave  us  to  go  on  by 
ourselves,  as  you  prefer.  Where  the  copartnership  is  determi- 
nable at  the  will  of  any  partner,  the  rule  that  the  majority  may 

{in)  It  lias  l)cen  hvid  down  by  a  learned  was  in  favor  of  the  power  of  a  majority  to 

writer,  (Chilly's  Laws  of  Ojnuncrcc,  vol.  bind  the  minority,  provided  their  conduct 

3,  p.  23<i,)  tliat  in  the  aiisencc  of  any  ex-  was  Imidjide.     His  loidship  said  ;  "  I  call 

press  stii)ul:ition  a  inaj<jrity  must  decide  that  the  act  of  all  which  is  the  act  of  the 

as  to  tlie  disposition  of  the  ]iartncrship  majority,  provided  all  are  consulted,  and 

pro])erty.     But  this  opinion  is  ;::ivcn  with  the  majority  act  ^)?jay(</c."     The  majority 

^•onsiderable  caution,  and   it  may  perhajts  of  partners    do    not  represent   the  whole 

be  more  safe  to  say,  that  the  jiower  of  the  Iwdy,  except  when  the  voice  of  the  minority 

majority  to  bind  the  miiKirity  is  confined  has   been    called   for.     In   such  case  the 

to  the  ordinary  transactions  of  the  jtart-  court  will  take  the  opinion  of  the  minority 

nership.     See  G  Vesey,  777  ;  5  Bro.  1*.  C.  to  have  been  fairly  overruled.     See  also* 

489.     It   is   true  that   iti  one   ca.se  it  has  Kirk  r.  Hod<j;son,  3  Johns.  Ch.  400  ;  Wil- 

beei)  held  that   in  all  sea   ailvcnturcs  the  kins  v.  Pearcc,  .'>  Dcnio,  541  ;  liobinson 

acts  of  the  majority  shall  bind  the  whole  ;  r.    Thompson,    1    Vern.    4C.'»  ;  Kr  parte 

but  in  that  case  provision  to  that  effect  was  Johnson,  31   E.  L.  &.  E.  4.30  ;  3   Kent's 

jnadc  by  deed.     Falkland   v.  Cheney,  5  Comm.  45,  and  note;  Storj'  on* Part.  4 

Hro.  P.  C.  476.     So  in   Const  r.  Harris,  123,  and  notes.  • 

Turn,  &  liuss.  525,     Lord  Z^Wwi'sopinion 

lo*  [  173  ] 


170* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


govern  only  terminates  a  partnership  between  disagreeing  part- 
ners. Where  the  partnership  is  not  determinable  at  pleasure, 
it  may  be  said  that  the  rule  that  a  minority  may  arrest  or  pro- 
hibit a  transaction  which  they  do  not  approve,  gives  them  in 
fact  a  power  to  terminate  a  copartnership  at  pleasure,  because 
if  they  can  arrest  one  transaction,  they  may  all.  This  is  pos- 
sible ;  but  the  inconveniences  resulting  from  it  seem  to  be  less 
than  those  which  might  come  from  permitting  a  bare  majority 
to  retain  the  capital  of  copartners,  and  employ  it  in  transactions 
which  they  disapprove,  and  expose  it  to  hazards  they  are  un- 
willing to  encounter.  Moreover,  the  opposite  rule  —  that  the 
majority  might  govern  — would  give  to  them  the  power  of  dis- 
solving the  partnership  at  pleasure ;  because,  if  they  wished  for 
a  dissolution,  they  could  always  propose  triansactions  so  adverse 
to  the  views  or  interests  of  the  minority,  as  to  compel  them  to 
assent  to  a  dissolution  as  their  only  escape.  It  must  be  regarded 
as  certain  that  a  majority  cannot  compel  a  minority  to  extend 
the  business  of  the  partnership  to  transactions  beyond  their 
original  intention,  or  otherwise  make  a  material  change  in  the 
business,  not  contemplated  in  the  formation  of  the  partnership, 
nor  sanctioned  by  all  the  partners. 


SECTION    XIV. 

of  dissolution. 

The  dissolution  of  a  partnership  does  not  affect  the  liability 
•of  the  partners  for  former  debts,  but,  in  general,  prevents  the 
incurring  of  a  new  joint  liability.  And  it  is  important  to  know 
what  makes  a  dissolution.  Where  a  partnership  is 'not  to  en- 
dure for  a  time  certain  by  the  articles  of  copartnership,  or  where 
that  time  has  expired,  it  may  be  dissolved  at  the  pleasure  of  any 
'partner,  (n)      Whether,    when    the    *partnership   is   by  articles 


(m)  Griswolil  V.  AVaddington,  15  Johns,  the  articles  are  totally  silent  upon  the  sub- 
82.  —  But  notice  should  be  given  to  the  ject,  and  where,  without  such  notice,  in- 
other  partner.  Nerot  r.  Burnand,  4  Russ.  jury  would  he  inflicted,  or  fraud  indicated. 
260;  Peacock  r.  Poacock,  16  Ves.  50. —  Howell  v.  Harvey,  5  Ark.  280.  —The 
This  should  be  a  reasonable  notice  where  duration  may  be  gathered  from  the  terms 

[174] 


CH.  XII.] 


PARTNERSHIP. 


*171 


which  stipulate  its  continuance  for  a  specified  period,  one  part- 
ner may  dissolve  it  within  that  period,  is  not,  perhaps,  quite 
certain.  By  the  civil  law,  such  dissolution  is  permitted,  on  the 
ground  that  it  would  be  useless  and  mischievous  to  hold  reluc- 
tant partners  together,  (o)  In  England  the  weight  of  authority 
is  decidedly  opposed  to  such  dissolution,  as  a  breach  of  con- 
tract; (p)  still  it  is  difficult  to  deny  that  one  may  assign  his 
interest,  and  this  would  operate  a  dissolution  ;  or  he  might  con- 
tract a  debt,  and  let  his  interest  be  taken  in  execution.  A  court 
of  equity  might  interfere  to  prevent  such  assignment;  but 
would  not,  in  case  of  debt,  unless  there  was  collusion,  or  the 
creditor's  interest  could  be  otherwise  secured,  (q) 

It  has  been  questioned  whether  a  court  would  infer  an  agree- 
ment for  a  continuance  of  the  partnership  for  a  definite  period, 
from  circumstances  ;  as  the  taking  of  a  lease  of  an  *estate  to 
be  used  as  partnership  property,  or  the  like.  But  it  may  well 
be  doubted,  whether  such  an  inference  would  be  drawn  merely 


of  the  articles,  although  not  expressly  pro- 
vided for.  Wheeler  v.  Van  Wart,  2  Ju- 
rist, 252.  See  also,  Crawsliay  v.  Collins, 
15  Ves.  227;  Wilson  v.  Greenwood,  1 
Swunst.  480  ;  WiLshhurn  v.  Goodman,  17 
Piek.  519.  —  In  the  late  ea.sc  of  Sanderson 
V.  The  Milton  Stage  Co.  18  Verm.  107,. it 
was  fic'lcl,  where  one  j)artner  gave  the 
other  notiie  that  the  copartnership  wa.s 
dissolved,  hut  this  was  not  assented  to  Ity 
the  other,  and  the  i)arties  did  not  after- 
wards act  ui)on  it,  that  it  did  not  operate 
as  a  dissolution  of  the  (inn. 

(o)  Vinnius  iu  Ins.  3,  26,  4  ;  Fcrrierc 
in  Id.  tome  V.  15G;  Dig.  17,  2,  14; 
Doniat,  b.  1,  tit.  8,  §  5,  art.  1-8,  by 
Strahaii. 

(/*)  Peacock  v.  Peacock,  16  Ves.  56  ; 
Crawsliay  v.  Maule,  1  Swanst.  495.  See 
Pear|)oin"t  r.  Graham,  4  Wash.  C.  C.  234, 
where  W'ti.fhini/ttm,  J.,  distinctly  aftinns 
the  rule  indicated  b)-  the  English  authori- 
ties. 

(7)  Manjuand  v.  N.  Y.  Man.  Co.,  17 
Johns.  525.  In  this  ca.se,  the  assignment 
by  one  ]>artncr  of  all  his  interest  in  the 
partnersiiip  was  held  to  dissolve  it,  al- 
though liy  the  articles  it  was  to  continue 
till  two  |>artners  should  demand  its  disso- 
lution. In  Skinner  v.  Dayton,  19  Johns. 
538,  it  was  held  that  the  partnership  is 


dissoluble  at  the  pleasure  of  any  ])artner, 
although  he  has  entered  into  a  covenant 
for  its  continuance  for  seven  years  —  tlic 
only  consequence  being  that  lie  thereby 
subjects  himself  to  a  claim  for  damages 
for  a  breach  of  his  covenant.  See  Mason 
r.  Connell,  1  Wharton,  388 ;  Wiiitton  v. 
Smith,  1  Freem.  Ch.  (Miss.)  231.  In 
Bishop  V.  Breckles,  1  Hotlm.  Ch.  5.34, 
the  ipiestion  was  considered  doul)tful,  but 
the  rule  of  tiie  civil  law  deenieil  more 
reasonal)ie  and  tiie  refusal  of  one  partner 
to  proceed  properly  in  the  business  of  the 
partnershiji,  was  held  sulticieut  cause  for  a 
decree  of  dissolution.  Per  Vicc-Chancel- 
lor  :  "  The  law  of  the  court,  then,  rc(|uires 
something  more  than  the  mere  will  of  one 
party  to  justify  a  dissolution.  But  it 
seems  to  me  that  but  little  should  be  de- 
manded. Tiie  principle  of  the  civil  law 
is  the  most  wise.  Why  slunild  this  court 
compel  the  contiuiunue  of  a  uuiun,  when 
dissension  has  marred  all  jirosjicct  of  the 
advantages  contemplated  by  its  formation? 
By  refusing  to  dissolve  it,  tiie  power  of 
binding  each  other,  and  of  dealing  with 
the  partnershi[)  property,  ivmains,  when 
all  contidence  and  all  combination  of 
etTort  is  at  an  end.  The  object  of  the 
contract  is  defeated." 

[170] 


172* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


from  circumstances,  unless  tliey  made  the  agreement  quite  cer- 
tain. (/•) 

Any  assignment  of  a  copartners  interest  in  the  partnership 
funds  operates  ipso  facto  a  dissolution  ;  although  the  assignment 
was  made  only  to  give  a  collateral  security,  [s)  And  an  as- 
signment by  one  partner  of  his  share  of  the  profits  to  *another 


(?•)  Crawshay  v.  Maule,  1  Swanst.  495, 
508,  521 .  Lord  Eldon  :  "  Without  doubt, 
in  the  absence  of  an  express,  there  may  be 
an  implied  contract,  as  to  the  duration  of 
a  partnersliip.  But  I  must  contradict  all 
authority,  if  I  say,  that  wherever  there  is 
a  partnership,  the  purchase  of  a  leasehold 
interest  of  lontyer  or  sliorter  duration  is  a 
circumstance  from  which  it  is  to  be  in- 
ferred that  the  partnership  shall  continue 
as  long  as  the  lease.  On  that  argument, 
the  court  holding  that  a  lease  of  seven 
years  is  proof  of  partnership  for  seven 
years,  and  a  lease  of  fourteen  of  a  partner- 
ship for  fourteen  years,  must  liold  that  if 
the  partners  purchase  a  fee-sim])le,  there 
shall  be  a  partnership  for  ever."  See  Mar- 
shall V.  Marshall,  cited  2  Bell's  Comm. 
641,  n.  3,  and  643,  n.  1. 

(s)  Morton's  Appeal,  13  Penn.  67; 
Parkhurst  v.  Kinsman,  1  Blatch.  488 ; 
Marquand  v.  New  York  Manuf.  Co.  17 
Johns.  525.  —  In  Whitton  v.  Smith,  1 
Freem.  (Miss.)  231,  it  was  held  that  a  sale 
or  assignment  by  one  partner  of  all  his 
interest  in  the  partnership  property,  oper- 
ates as  a  dissolution,  ipso  facto,  although 
the  partnership  articles  provide  for  a  con- 
tinuance of  the  partnership  for  a  definite 
period.  —  See  Conwell  v.  Sandidge,  5 
Dana,  213 ;  Cochran  v.  Peny,  8  Watts  & 
Serg.  262.  — But  the  true  principle  seems 
to  be  stated  in  Taft  v.  Buffum,  14  Pick. 
322.  In  this  case,  one  of  four  members 
of  a  firm  assigned  the  whole  of  his  interest 
in  all  the  personal  and  real  estate  of  the 
firm  to  one  of  his  coi)artners,  but  still  con- 
tinued to  transact  the  business  of  the  firm 
in  the  same  manner  as  before,  until  the 
failure  of  the  company  ;  a  suit  was  com- 
menced against  the  remaining  three  mem- 
bers of  the  firm ;  they  pleaded  in  abate- 
ment the  non-joinder  of  the  j)arty  who  had 
so  assigned  his  share,  and  the  court  held 
that  a  conveyance  by  a  partner  of  all  his 
interest  in  all  the  real  and  personal  estate 
of  the  firm  to  one  of  his  copartners,  docs 
not  ipso  facto  dissolve  the  cojiartnership  ; 

[176] 


it  is  only  evidence  tending  to  show  a  dis- 
solution. In  this  case  the  court  say  that 
a  person  may  still  be  a  partner,  though  he 
ceases  to  have  any  property  in  the  stock 
of  a  partnership,  on  the  principle  that 
two  persons  may  become  partners,  one 
furnishing  money  or  goods,  and  the  other 
skill  or  labor ;  or  after  persons  have  en- 
tered into  a  partnership,  and  each  has  fur- 
nished capital,  one  may,  with  the  consent 
of  his  associates,  and  for  good  considera- 
tion, as  of  great  skill  or  labor,  witiidraw 
his  funds  or  share  in  the  stock,  and  still 
continue  to  be  a  member  of  the  firm.  Put- 
nam, J.,  remarked :  "  We  think  that  such 
an  arrangement  would  necessurilij  operate 
as  a  dissolution  of  the  connection."  He 
adds :  "A  majority  of  the  court  arc  of 
opinion  that  it  [the  fact  of  the  sale  by  one 
partner]  was  evidence  in  the  case,  which 
miglit  or  might  not  prove  a  dissolution, 
as  other  facts  might  be  proved *in  the  case, 
all  of  which  should  have  been  left  to  the 
ji^ry,  to  determine  the  fact  vhethcr  tlic 
partnership  had  been  dissolved  or  not. 
For  example,  if,  after  a  sale,  tiie  ])artner 
assigning  his  interest  had  ceased  to  have 
any  concern  in  tlie  establishment,  had  en- 
tered into  other  business  on  his  own  sep- 
arate account,  or,  as  it  might  be,  had  re- 
moved to  a  foreign  countiy  or  place,  and 
there  carried  on  business  for  himself,  or 
lived  upon  his  own  funds  or  otherwise ; 
upon  such  evidence  we  should  all  think 
that  the  jury  ought  to  find  that  the  cojjart- 
ncrshii)  was  dissolved.  On  the  other  hand, 
if  (as  in  the  present  case  it  is  found)  the 
partner  so  assigning,  after  the  conveyance, 
continued  to  act  as  a  partner,  making  him- 
self liable  as  such  by  drafts  and  otiier 
partnership  business,  just  as  he  had  done 
Ijefore  the  conveyance ;  then  it  would 
seem  to  a  majority  of  the  court  that  the 
jury  ought  to  find  that  the  partnership 
was  not  dissolved."  Coll.  on  Part. 
§  110.  — See  Buford  v.  McNceley,  2 
Dev.  Eq.  481 ;  Dana  v.  Lull,  17  Verm. 
390. 


en.  XII.]  PARTNERSHIP.  -172 

partner  is  a  dissolution  of  the  partnership,  because  the  essence 
of  that  is  a  participation  of  the  profits.  (/) 

As  death  oj)erates  of  itself  a  dissolution,  (u)  so  in  England 
civil  death  has  the  same  etiect;  as  outlawry,  or  attainder  for 
treason  or  felony.  We  have  not  this  civil  death  in  this  country; 
and  imprisonment  for  a  term  of  years,  or  even  for  life,  would 
probably  have  only  the  effect  of  other  incapacity.  That  is,  it 
would  not  be  a  dissolution  of  the  partnership,  nor  cause  a -dis- 
solution at  once,  propria  vig-ore,  but  it  would  be  good  ground 
for  apj)lying  to  any  court,  having  authority,  to  grant  a  dissolu- 
tion. When  either  partner  becomes  disabled  to  act,  or  when 
the  business  becomes  wholly  impracticable,  a  court  of  equity 
would  dissolve  the  partnership,  or  treat  it  as  dissolved,  as  the 
justice  of  the  case  might  require,  (nii)  The  contract  of  partner- 
ship is  mutual ;  and  it  would  be  obviously  unjust  to  hold  one 
party  to  his  contract,  when  it  had  become  impossible  for  the 
other  to  fulfil  his  part.  If  the  party  so  disabled  from  active 
aid,  was,  by  the  terms  of  the  contract,  only  a  silent  or  dormant 
partner,  only  contributing  capital,  and  sharing  with  his  partner 
the  profit  and  loss  arising  from  the  use  made  of  the  cajiital  by 
the  active  partner,  the  above  reason  would  seem  not  applicable, 
because  his  capital  might  remain  as  before.  But  in  this  case, 
if  an  application  comes  from  the  active  partner,  he  certainly 
should  be  permitted  to  renounce  the  benefit  of  the  capital  under 
such  circumstances,  if  he  wished  to  do  so.  And  if  the  applica- 
tion comes  from  the  party  owning  the  capital,  or  his  represent- 
atives, they  as  certainly  ought  to  be  permitted  to  withdraw  the 
capital  from  hazards  which  the  owner  could  no  longer  estimate 
nor  provide  for,  nor  advise  in  relation  to.  And  we  think 
with  Mr.  Justice  Story  and  Mr.  Chief  Justice  Parker,  that  it 
may  well  be  doubted  whether   the  rule  of  law  should  not  be 


(0  Ilciilli  r.  Sansoni,  4  R.  &  Ad.  175.  tion,  and  tliis  not  only  as  to  tlic  deceased 

(")  N'ullianiv  v.  XoMo,  .'{  Meriv.  59.3;  ])artner,  litit  also  as  to  all  of  the  survivors. 

Murray     r.     Muniford,    G    Cowen,    441  ;  Dyer  r.  Clark,  5  Met.  575  ;   SelioKlield  v. 

Cantield  r.  Hard,  G  Conn.  184  ;  Rurwell  Kieliellier^'er,  7  I'et.  58C.     And  llie  saino 

?•.   Mandeville,   2    Jlow.    5G() ;    Kna])])   ?».  rule  ai)])lies  to    a  silent  jiartner.     Wash- 

MeJJride,   7   Ala.  19.  —  In  such  ease  the  burn  v.  Goodman,  17  I'iek.  520. 
dissolution  takes  etfect  from  the  time  of        (uti)  Leaf  i;.  Coles,  12  E.  L.  &  E.  117. 
the  death,  however  numerous  the  assoeia- 

[177] 


173* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


that  *absoliite  insanity,  or  any   equivalent  disability,  operates 
at  once,  and  ipso  facto,  a  dissolution,  {v) 

Bankruptcy  of  the  firm,  or  of  one  partner,  operates  an  imme- 
diate dissolution,  {iv)  Insolvency  under  the  statutes  would 
have  the  same  effect;  {x)  but  not  the  mere  insolvency  which  is 
only  an  inability  to  pay  debts,  until  a  refusal  to  pay ;  and  prob- 
ably not  until  interference  by  attachment  or  other  legal  process 
with  the  firm,  by  a  creditor  of  the  firm,  or  of  an  indebted  part- 
ner. In  the  last  case,  it  would  seem  to  operate  as  a  transfer  of 
the  partner's  interest,  (y) 


();)  Story  on  Partn.  §  295 ;  Jones  v. 
Noy,  2  Myl.  &  K.  125.  In  Isler  v.  Ba- 
ker, 6  Humph.  85,  it  was  held,  that  an 
inquisition  of  huiacy,  found  against  a 
momhcr  of  a  partnership,  ipso  facto,  dis- 
solves tlie  i)artncrship.  See  also,  Gris- 
wold  V.  Waddinfi'ton,  15  Johns.  57  ;  Davis 
V.  Lane,  10  N.  H.  161,  where  Parker,  C. 
J.,  is  reported  to  have  said  :  "  It  has  hecn 
held,  in  England,  that  the  insanity  of  one 
partner  docs. not  operate  as  a  dissolution 
of  the  partncrsliip,  but  that  olyect  must 
be  attained  through  a  court  of  equity. 
Sayer  v.  Bennet,  cited  2  Ves.  &  Bea.  303  ; 
Gow  on  Part.  [272].  But  the  soundness 
of  the  principle  may  perhaps  be  doubted. 
Waters  v.  Taylor,  2  Ves.  &  Bea.  303  ; 
Griswold  v.  Waddington,  15  Johns.  57, 
82.  It  certainly  could  not  have  been  ap- 
plied here  prior  to  1832,  as  we  had  before 
that  time  no  court  through  whose  decree 
in  equity  a  dissolution  could  have  been 
effected.  Admitting  it  to  be  correct  in  its 
fullest  extent,  however,  it  would  not  affect 
this  case,  for  each  partner  has  an  interest 
by  the  partnershii)  contract,  and  the  inter- 
est of  one  partner  would  not  be  terminated 
by  the  insanity  of  another.  In  making  a 
sale,  or  contract,  he  does  not  act  as  agent, 
but  in  his  own  right ;  and  the  partnership 
name  may  be  used  by  one,  without  any 
supposition  that  another  acts,  individually, 
or  has  any  knowledge  or  volition  in  rela- 
tion to  the  matter.  But  so  long  as  the 
partnership  continues,  the  act  of  one  binds 
the  others ;  and  as  it  is,  in  its  effect,  the 
act  of  all  the  partners,  it  may  deserve 
great  consideration  whether  tlie  insanity 
of  one,  in  the  absence  of  any  stipulation 
to  the  contrary,  does  not  operate  ipso 
facto,  as  a  dissolution  of  the  partnership 
"itself." 

(w)  Fox  V.  Hanbury,  Co^\']")er,  448. 
Lord  Mansfield :   "  An  act  of  bankruptcy 

[178] 


by  one  pai'tner  is  to  many  purposes  a  dis- 
solution of  the  partnership,  by  virtue  of 
the  relation  in  the  statutes,  which  avoid 
all  the  acts  of  a  bankrupt  from  tlie  day  of 
his  bankruptcy ;  and  from  the  necessity  of 
the  thing,  all  his  property  being  vested  in  the 
assignees,  who  cannot  carry  on  a  trade." 
See  Wilson  v.  Greenwood,  1  Swanst.  482  ; 
Ex  parte  Smith,  5  Ves.  295  ;  Ex  parte 
Williams,  1 1  Ves.  5 ;  Crawshay  v.  Col- 
lins, 15  Ves.  218;  Button  i-.  Morrison, 
17  Ves.  193;  Griswold  v.  Waddington, 
15  Johns.  82,  S.  C.  16  Johns.  491  ;  Mar- 
quand  f.  N.  Y.  Manuf.  Co.  17  id.  535; 
Arnold  v.  Brown,  24  Pick.  89  ;  Atwood  v. 
Gillett,  2  Doug.  (Mich.)  206  ;  Collyer  on 
Part.  B.  1,  ch.  2,  §  2;  Story  on  Part.  § 
313.  But  "an  act  of  bankruptcy,  how- 
ever, does  not  dissolve  the  partnci'sliip  in- 
staiiter.  It  must  be  followed  by  a  fiat  and 
adjudication.  '  The  adjudication  that  he 
is  a  l)ankru])t,'  said  Lord  Loughborough, 
'  is  what  severs  the  partnership.'  "  Coll- 
yer on  Part.  ^  111  ;  Ex  parte  Smith,  5 
Ves.  295;  Story  on  Part.  §  314.  The 
English  law  gives  eflect  to  the  dissolution 
from  the  declaration  of  bankruptcy  under 
a  commission  ;  but  this  relates  back  to 
the  act  of  bankruptcy,  and  vests  the  prop- 
erty in  the  assignees  from  that  i)eriod 
by  operation  of  law.  Fox  v.  Hanbury, 
supra ;  Ex  parte  Smitli,  5  Ves.  296 ; 
Barker  v.  Goodair,  11  Ves.  83  ;  Thomason 
V.  Frere,  10  East,  418;  3  Kent,  Comm. 
59. 

(x)  Williamson  v.  Wilson,  1  Bland. 
418;  Govvan  v.  Jeffries,  2  Ash.  305,  and 
cases  cited  supra. 

(y)  The  insolvency  of  a  partnership 
does  not  per  se  dissolve  it.  Arnold  v. 
Brown,  24  Pick.  93.  Morton,  J.  :  "  It  is 
further  contended  for  the  plaintiffs  that 
the  partnership  was  dissolved.  There  is 
no  pretence  that  the  partners  intended  to 


en.  xir.] 


PARTNERSHIP. 


-173 


Whether  a  partnership  is  absolutely  dissolved  or  only  sus- 
pended where  the  partners  are  domiciled  in  ditferent  countries, 
by  the  breaking  out  of  a  war  between  the  countries,  may 
not  be  positively  settled,  but  the  weight  of  authority  is  in  favor 
of  the  dissolution,  (z) 

Although  the  death  of  a  partner  operates  a  dissolution  of 
the  partnership,  the  articles  of  copartnership  may  provide  for  its 
continuance,  by  an  agreement  that  the  executors,  administrators, 
heirs,  or  other  designated  person,  shall  take  the  place  of  a  de- 
ceased partner.  («) 


dissolve  the  partnership.  If  it  was  done 
at  all  hy  tlicni  it  was  the  effect  of  their  acts 
apainst  tiieir  intentions.  The  insolvency 
of  one  or  both  the  partners,  we  tiiink, 
would  not  produce  this  effect.  The  in- 
solvency of  one  iniirht  furnish  to  the  other 
sufficient  trround  for  declaring;  a  dissolu- 
tion. IJut,  in  tliis  State,  the  inal)ility  to 
pay  the  comjiany  or  the  private  debts  of 
the  partners  would  not  }i<r  sc  ojierate  as  a 
dissolution.  In  Enj^land,  bankru])tey, 
and  in  some  of  our  States  where  insolvent 
laws  exist,  le<j;al  insolvency  may  ])roducc 
a  dissolution.  Wherever  the  one  or  the 
other  operates  to  vest  the  bajikru))t's  or 
insolvent's  ]iroperty  in  assifrnees,  or  other 
ministers  of  the  law,  it  would  jjroduce  that 
effect." 

{z)  fJriswold  ?•.  Waddinfrton,  15  Johns. 
.57,  IC  id.  4.'58.  In  this  case,  the  authorities 
and  princi])lcs,  <:overninir  contracts  with 
persons  domiciled  in  an  enemy's  country, 
were  fidly  iwicwed  by  Chancellor  Kent, 
'i}\  the  Court  of  Errors.  McConnell  v. 
H'ctor,  3  B.  &  P.  113;  Sdioletield  v. 
Kichcllier<rer,  7  Peters,  .586.  Tlie  partner- 
ship in  such  cases  will  be  ille;ral,  notwith- 
standing (jiie  or  more  partnei's  arc  i-esidcnt 
in  a  neutral  country.  The  San  .Jose  In- 
dinno.  2  (Jallis.  268;  The  Franklin,  6 
Kobiiu-ion  (Adm.),  127.  And  the  prop- 
erty of  a  house  of  trade  established  in  an 
enemy's  coinilry  is  condcmnable  as  prize, 
whatever  may  lie  the  domicil  of  the  i)art- 
ners.  The  Kreundschaft,  4  Wheat.  105; 
Story  on  Part.  §  316. 

((()  Wrc.xham  r.  lluddlcston,  1  Swanst. 
51-1,  note;  Crawshay  r.  Maule,  I  Swanst. 
520  ;  Pearce  r.  Chamberlain,  2  \'es.  Sen. 
33  ;  Malmain  v.  Shore,  9  Ves.  .500  ;  War- 
ner r.  Cuniun;,diam,  3  Dow,  I'arl.  Cits. 
76;  (yatz  v.  liayanl,  11  S.  &  U.  41; 
Kna])|*  r.  MclJride,  7  Ala.  28.  And  such 
express  aj;reement  for  the  continuance  of 


the  partnersliip  after  the  death  of  one 
partner  is  necessary,  although  the  part- 
nership is  for  a  term  of  years.  Gillespie 
r.  Hamilton,  3  ]\Iadd.  25^1  ;  Scholetield  v. 
Eichclbcrfrer,  7  Peters,  586 ;  I'iirott  v. 
Baj,dey,  McCleland&  Youn<,^e,  575.  It  is 
not  a  settled  (picstion  whetlier  stijjulations 
in  the  articles  of  partnership,  providing 
for  its  continuance  after  the  death  of  a  part- 
ner for  the  benefit  of  the  heirs,  is  binding 
on  them.  Louisiana  Bank  v.  Kenner's 
Succession,  I  Louis.  (Miller,)  384.  But 
according  to  Chancellor  Kent,  "  the  bet- 
ter opinion  is,  that  they  are  not  anywhere 
absolutely  binding.  It  is  at  the  o]ition  of 
the  representatives,  and  if  they  <lo  not  eon- 
sent,  the  death  of  the  party  puts  an  end  to 
the  partnership."  3  Kent,  Comm.  57, 
note ;  Pigott^  v.  Bagley,  MeCleland  & 
Younge,  569  ;  Kershaw  v.  ^latthews,  2 
Kuss.  62. —  A  j>artner,  too,  may  l>y  his  iri/l 
provide  that  the  jvirtnershi])  shall  continue 
notwithstanding  his  death  ;  and  if  it  is 
consented  to  by  the  surviving  partner  it 
becomes  obligatory  ;  but,  in  that  ease,  that 
part  of  his  jiropeity  only  will  be  liable, 
in  case  of  bankruptcy,  which  he  has 
diix'cted  to  be  endmrked  in  the  trade. 
A'j: /wrte  Garland,  10  W's.  110;  Thomp- 
son r.  Andrews,  1  Mylne  &  Keen,  116; 
Pitkin  r.  Pitkin,  7  Conn.  307  ;  Burwell 
)'.  Mandeville's  Ex'r,  2  Howard,  5G0,  576. 
The  court  in  this  case  said  :  "  By  the  gen- 
eral rule  of  law  everv  partnership  is  dis- 
solve<l  by  the  death  of  one  of  the  partners. 
It  is  true  that  it  is  eomjietent  for  the  part- 
ners to  provide  by  agreement  for  the  con- 
tinuance of  the  partnership  after  such 
death  ;  but  then  it  takes  place  in  virtue  of 
such  agreement  only,  as  the  act  of  the 
jiarties,  and  not  by  mere  operation  of  law. 
A  jiartiyr,  too,  mav  by  bis  will  ]irovide 
that  the  partnership  sliall  continue  not- 
withstanding his  death  ;  and  if  it   is   eon- 

[179] 


173- 


THE   LAW    OF   CONTRACTS. 


[book  I. 


When  a  partner  dies,  the  partnership  property  goes  to  the 
survivors  for  the  purpose  of  settlement,  and  they  have  all  the 
power  necessary  for  this  purpose,  and  no  more,  {b)  They  are 
tenants  in  common  with  the  representatives  of  the  deceased,  as 
to  the  choses  in  possession.  And  they  have  a  lien  on  them  to 
settle  the  affairs  of  the  concern,  and  pay  its  debts,  (c) 

If  the  survivors  carry  on  the  concern,  and  enter  into  new 
transactions  with  the  partnership  funds,  they  do  so  at  their 
peril ;  and  the  representatives  of  the  deceased  may  elect  to  call 
on  them  for  the  capital  with  a  share  of  the  profits,  or  with 
interest,  (d) 

A  court  of  equity  will  interfere  and  decree  a  dissolution,  upon 
a  case,  distinctly  made  out,  of  positive  and  injurious  wrong, 
done  by  one  or  more  of  the  partners,  against  the  interest  of  the 
firm,  (e)  and  when  called  upon  to  settle  the  affairs  of  a  partner- 


sentcd  to  by  tlie  surviving  partner,  it  be- 
comes obligatory,  just  as  it  would  if  the 
testator,  being  a  sole  trader,  had  provided 
for  the  continuance  of  his  trade  by  his  ex- 
ecutor, after  his  death.  But  then  in  each 
case  the  agreement  or  authority  must  be 
clearly  made  out ;  and  third  persons,  hav- 
ing notice  of  the  death,  are  bound  to  in- 
quke  how  far  the  agreement  or  authority 
to  continue  it  extends,  and  what  funds  it 
binds,  and  if  they  trust  the  surviving  party 
beyond  the  reach  of  sucli  agreement,  or 
authority,  or  fund,  it  is  their  own  fault, 
and  they  have  no  right  to  complain  that 
the  law  does  not  afford  them  any  satisfac- 
tory redress.  A  testator,  too,  directing 
the  continuance  of  a  partnersliip,  may,  if 
he  so  clioose,  bind  his  general  assets  for 
all  the  debts  of  the  partnership  contracted 
after  his  death.  But  he  may  also  limit 
his  responsibility,  cither  to  the  funds  al- 
ready embarked  in  the  trade,  or  to  any 
specific  amount  to  be  invested  therein  for 
that  ]na-i)ose  ;  and  then  the  creditors  can 
resort  to  that  fund  or  amount  only,  and 
not  to  the  general  assets  of  the  testator's 
estate,  although  the  partner  or  executor, 
or  other  person  carrying  on  the  trade,  may 
be  ])crsonally  re^onsil)lc  for  all  the  debts 
contracted." 

(l>)  J'J.r  parte  Euffin,  6  Vcs.  119,  126; 
Ex  /larte  Williams,  11  Ves.  5;  Crawsliay 
V.  Collins,  15  Ves.  218  ;  Peacock  v.  Pea- 
cock, IG  Ves.  49,  .'57  ;  Harvey  r.  trickett, 
5  M.  &  S.  336  ;  Butcliart  v.   Dresser,  31 

[180] 


E.  L.  &  E.  121  ;  Barney  v.  Smith,  4  H. 
&  J.  495  ;  Murray  v.  Mumford,  6  Cowen, 
441 ;  AVashburn  v.  Goodman,  17  Pick. 
519;  Story  on  Part.  §§  325-329,344,  346; 
CoUyer  on  Part.  §  118.  But  in  Buckley 
V.  Barber,  1  E.  L.  &  E.  506,  Baron  Parke 
doubts  whether  surviving  partners  have  a 
power  to  sell  and  give  a  good  legal  title 
to  the  sliare  of  the  partnership  property 
belonging  to  the  executors  of  the  deceased, 
even  when  they  sell  in  order  to  pay  the 
debts  of  the  deceased  and  of  themselves, 
and  decides  that  at  all  events  the  survi- 
vors have  no  power  to  dispose  of  it  other- 
wise than  to  pay  such  debt,  certainly  not 
to  mortgage  it  together  with  their  own  as 
a  security  for  a  debt  principally  due  from 
them,  and  in  part  only  from  the  deceased. 

(c)  Ex  parte  Ruffin,  6  Ves.  119  ;  Ex 
parte  Williams,  1 1  Ves.  5  ;  Story  on  Part. 
§  32G. 

{(l)  Brown  v.  Litton,  1  P.  Wms.  140; 
Hammond  v.  Douglas,  5  Ves.  539  ;  Fea- 
therstoiiaugh  v.  Eenwick,  17  Vcs.  298; 
Heathcote  v.  Hulmc,  1  Jac.  &  Walk. 
122  ;  Sigourney  v.  Munn,  7  Conn.  11  ; 
Crawshay  v.  Collins,  2  Kuss.  345,  S.  C. 
15  Ves.  218;  3  Kent,  Comm.  64; 
Stoiy  on  Part.  §§  233,  329,  343;  Coll- 
yer  on  Part.  §§  130,  324,  325,  and  notes. 
But  a  partner  a])pointed  receiver  is  not 
held  as  partner  to  account  for  profits  for 
partnership  money  invested  in  trade. 
Whitesides  v.  Lalferty,  3  Humi)h.  150. 

(e)  Tattersall  v.  Grootc,  2  Bos.  &  Pul. 


I 


CH.  XII.] 


PARTNERSHIP. 


*174 


ship,  it  will  respect  any  stipulations  between  the  partners  as  to 
the  mode  of  settlement.  In  the  absence  of  such  stipulations  it 
will  be  governed  by  the  last  settled  account,  both  as  to  its  result 
and  its  method,  unless  the  account  be  set  aside  for  fraud,  act- 
ual or  constructive,  or  be  open  to  objection  as  oppressive  and 
unreasonable.  (/) 


SECTION    XV. 

OF  TUE  RIGHTS  OF  CREDITORS  IN  RESPECT  TO  PARTNERSHIP 

FUNDS. 

The  property  of  a  partnership  is  bound  to  the  payment  of 
the  partnership  debts,  and  the  right  of  a  private  creditor  of  one 
copartner  to  that  partner's  interest  in  the  property  of  the  firm, 
is  postponed  to  the  right  of  the  partnership  creditor,  (g)  *But 
difficult  questions  sometimes  arise  where  the  private  creditor 
seeks  to  attach,  or  levy  upon,  the  partnership  property,  or  the 


131  ;  Er  parte  Broome,  1  Hose,  69  ; 
Hamil  V.  Stokes,  4  Price,  161,  S.  C. 
Daniel,  20  ;  Okliiker  r.  Lavender,  6  Sim. 
239  ;  Green  i-.  Barrett,  1  Sim.  45 ;  Jones 
V.  Yates,  9  B.  &  Cr.  532.         ^ 

(/)  Jackson  v.  Sedgwick,  1  Swanst. 
4Gf),  469;  Pcttyt  v.  Janeson,  6  Madd.  146 ; 
Oldakcr  •,•.  Lavender,  6  Simons,  239  ; 
Desha  v.  Sheppard,  20  Ala.  747  ;  Story 
on  Part.  ^  .349,  206. 

(;/)  Miirrill  v.  Neill,  8  How.  414  ;  Pierce 
V.  Jackson,  6  Miu>s.  243 ;  Tappan  r. 
Blaisdell,  5  N.  11.  190;  Brewster  r.  Ham- 
mett,  4  Conn.  540  ;  Commercial  Bank  v. 
Wilkins,  9  Grecnl.  28  ;  Doii};liis  i-.  Wins- 
low,  20  Maine,  89;  Donelson  r.  Posey, 
13  Ala.  (N.  S.)  752;  Fillcy  i'.  Phelps,  18 
Conn.  294;  Pearson  r.  '  Kecdy,  6  B. 
Monr.  128;  Black  r.  Bush,  7  id.  210; 
Glenn  v.  (Jill,  2  Maryl.  1.  And  if  the 
partners  sell  the  )(ai-tiicrship  property  for 
the  |)urposc  of  })ayin;;  the  ])rivate  dcht  of 
one  ])artner,  sucii  sale  is  null  and  void  as 
to  the  cre<litors  of  the  firm.  Person  i\ 
Monroe,  I  Foster,  462.  —  If  the  indi- 
vidual partners  have  no  lien  on  the  part- 
nership funds  for  the  payment  of  jiartner- 
ship  liahilities,  the  creditors  of  the  partner- 
ship arc  entitled  to  no  preference  over  the 
creditors  of  the  individual  partners  in  at- 
VOL.  I.  16 


taching  its  property.  Rice  v.  Barnard,. 
20  Verm.  479  ;  Person  v.  Monroe,  1  Post. 
462.  And  this  preference  is  denied  to  the 
creditors  of  the  partnership,  where  there 
has  been  a  bond  Jide  sale  of  the  partner- 
ship effects  without  the  reservation  of  a 
lien.  Ketchum  v.  Durkee,  1  Barb.  Ch. 
480;  Reese  v.  Bradford,  13  Ala.  837. 
See  Smith  v.  Edwards,  7  Humph.  106. 
An  a.ssignment  by  partners  of  their  joint 
and  separate  property  for  the  payment  of 
their  debts,  with  preference  to  certain 
partnership  creditors  and  certain  individ- 
ual creditors,  has  been  held  valid.  Kirby 
r.  Schoonmaker,  3  Barb.  Ch.  46,  50. — 
In  Vermont,  the  creditors  of  the  jiaitner- 
ship,  in  attaching  partnership  ])roperty, 
arc  at  luio  entitled  to  no  preference  to 
creditors  of  an  individual  partner.  Reed 
r.  Shepardson,  2  Verm.  120;  Clark  v. 
Lyman,  8  Verm.  290.  But  in  n/tiili/  the 
])artnership  effects  arc  pledged  to  each 
])artner  until  he  is  released  from  all  his 
]>artncrship  obligations,  and  are  first 
chargeable  with  the  claims  of  the  partner- 
shi|)  creditors,  notwithstanding  ])rior  at- 
tachments of  the  separate  creditors. 
Wiudiburn  i-.  Bank  of  Bellows  Palls,  19 
Verra.  278;  Bardwell  v.  Perry,  19  id. 
292. 

[181] 


175* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


interest  of  the  indebted  partner  therein.  Where  attachment 
by  mesne  process  exists,  such  attachment  is  allowed  ;  but  it  is 
generally  made  subject  to  the  paramount  rights  of  the  partner- 
ship creditors,  (h)  And  such  attachment  is  defeated  by  the  mere 
insolvency  of  the  firm,  although  the  partnership  creditors  *have 
commenced  no  action  for  the  recovery  of  their  debts,  (i)  But 
where  one  partner  is  dormant,  the  creditor  of  the  other  is  not 
then  postponed  in  his  attachment  of  the  stock  in  trade,  to  a 
creditor   of   the  same  firm  who  has  discovered    the  dormant 


(h)  Pierce  v.  Jackson,  6  Mass.  242.  In 
this  case  an  attachment  of  partnership 
property  for  a  partnership  debt  was  held 
to  prevail  over  a  prior  attachment  of  the 
same  property  for  the  separate  debt  of  one 
of  the  partners.  Parsons,  C.  J. :  "  At 
common  law  a  paitncrsliip  stock  belongs 
to  the  partnership,  and  one  partner  has  no 
interest  in  it  but  his  share  of  what  is  re- 
maining after  all  the  partnership  debts  are 
paid,  he  also  accounting  for  what  he  may 
owe  to  the  firm.  Consequently,  all  the 
debts  due  from  the  joint  fund  must  first 
be  discharged,  before  any  partner  can 
appropriate  any  part  of  it  to  his  own  use, 
or  jjay  any  of  his  private  debts ;  and  a 
creditor  to  one  of  the  partners  cannot 
claim  any  interest  bnt  what  belongs  to  his 
debtor,  whether  liis  claim  be  founded  on 
any  contract  made  with  liis  debtor,  or  on 
a  seizing  of  the  goo<ls  on  execution.  Phil- 
lips V.  Bridge,  1 1  id.  249 ;  Newman  ??. 
Bagley,  16  Pick.  572  ;  Allen  v.  Wells,  22 
id.  450  ;  Trowbridge  v.  Cushman,  24  id. 
310 ;  Commercial  Bank  i\  Wilkins,  9 
Greenl.  28 ;  Smith  v.  Barker,  1  Fairf. 
458 ;  Douglas  v.  Winslow,  20  Maine,  89. 
Weston,  C.  J.  :  "  The  interest  of  each 
partner  is  in  his  portion  of  the  residuum, 
after  all  the  debts  and  liabilities  of  the 
firm  are  liquidated  and  discharged.  Equity 
will  not  aid  the  separate  creditor,  until 
the  partnership  claims  are  first  adjusted. 
And  they  will  interpose  to  aid  the  credi- 
tors of  the  firm,  when  a  separate  creditor 
attem]Hs  to  withdraw  fnnds,  in  regard  to 
which  they  have  ajiriurity.  In  this  State, 
and  in  Massachusetts,  a  separate  creditor 
may  attach  the  goods  of  a  firm,  so  far  as 
his  debtor  has  an  interest  in  them,  suliject 
to  the  paramount  claims  of  tlie  creditors 
of  the  tirm."  —  Tappan  v.  Blaisdell,  5  N. 
H.  190.  Richardsm,  C.  J.:  "According 
to  the  old  cases  in  the  courts  of  law,  the 
separate   creditor  took  the  goods  of  the 

[182] 


partners,  and  sold  the  share  of  his  debtor, 
without  inquiring  what  were  the  rights  of 
the  other  partners,  or  what  was  the  real 
share  of  each.  Blackhurst  v.  Clinkard,  1 
Show.  169,  1  Salk.  392,  Comyns's  K. 
277.  But  tlie  true  nature  of  a  partnersliip 
seems  to  have  been  better  understood  in 
more  modern  times,  and  it  is  now  settled 
that  each  partner  has  a  lien  on  the  part- 
nership property,  in  respect  to  the  balance 
due  to  him,  and  the  liabilities  he  may  have 
incurred  on  account  of  the  partnership." 
Mon-ison  v.  Blodgett,  8  N.  H.  238;  Page 
V.  Carpenter,  10  id.  77  ;  Dow  v.  Say  ward, 
12  id.  276;  Brewster  v.  Hammett,  4 
Conn.  540;  Washburn  v.  The  Bank  of 
Bellows  Falls,  19  Verm.  278;  In  the 
Matter  of  Smith,  16  Johns.  102;  Bobbins 
V.  Coopc-r,  6  Johns.  Ch.  186.  But  wlierc 
a  partnership  was  dissolved,  and  a  credL- 
tor  of  the  ]>«rtnership  afterwards  took  the 
joint  and  several  note  of  the  individual 
j)artners,  held,  that  he  could  not  be  re- 
garded as  a  creditor  of  the  partnership, 
and  entitled  to  preference  as  such.  Page 
V.  Caqwnter,  10  N.  H.  77. 

(/)  Pierce  v.  Jackson,  6  Mass.  242; 
Fisk  V.  Hcrrick,  6  id.  271.  In  the  latter 
case  the  court  said  :  "  Before  either  part- 
ner can  rightfully  claim  to  his  owi  use,  or 
for  tlie  payment  of  his  own  debts,  any  of 
the  partnershij)  effects,  the  partnership 
mvist  be  solvent,  and  he  must  not  be  a 
debtor  to  it." —  Rice  v.  Austin,  17  id.  206; 
Commercial  Bank  v.  Wilkins,  9  (jreenl. 
28;  Lyndon  i\  Gorham,  1  Gall.  308. 
"  The  general  rule  undoubtedly  is,  that 
the  interest  of  each  ])artncr  in  the  ])avtner- 
ship  funds  is  only  what  remains  aficr  the 
partnership  accounts  are  taken ;  and  unr 
less,  upon  such  an  account,  the  jiartner  be 
a  creditor  of  the  fund,  he  is  entitled  to 
nothing.  And  if  the  partnership  be  insol- 
vent, the  same  effect  follows." 


CH.  XII.] 


PARTNERSHIP. 


*176 


partner,  and  makes  him  defendant,  (j)  But  this  would  seem 
not  to  be  the  case  where  the  first  attaching  creditor's  debt  had 
no  reference  to  the  partnership  business,  and  the  debt  of  the 
second  creditor  had  such  reference,  (k)  The  same  *rule  is  ap- 
plied to  attachments  by  trustee  process,  and  to  direct  attach- 
ments. (I) 

Formerly  both  in  England  and  in  this  country,  the  principle 
of  moieties  prevailed.  That  is,  the  private  creditor  took  the  pro- 
portion of  the  partnership  stock  which  belonged  by  numerical 
division  to  his  debtor,  (m)     But  now,  both  there  and  here,  the 


(  /)  The  reason  of  this  exception  to  the 
general  doctrine  is,  that  the  public  rely  on 
the  personal  credit  of  the  ostensible  owner, 
and  not  on  that  of  the  dormant  partners. 
Lord  V.  Baldwin,  6  Pick.  348,  351.  "  The 
c:isc  before  us  is  that  of  a  dormant  part- 
nersliip,  wiiich  is  necessarily,  from  its  very 
character,  unknown  at  the  "time  tiie  liabil- 
ity is  incurred.  All  the  creditors  sold 
their  ^oods  or  made  their  contract  with 
the  ostensible,  visible  partner;  they  trusted 
to  him  personally,  and  to  the  goods  upon 
which  he  was  trading,  as  his.  The  dor- 
mant j)artner  is  brought  to  light  by  er  post 
J'orto  investigation  ;  and  he  is  made  re- 
sponsible, not  becixuse  he  was  trusted,  but 
because  he  secretly  enjoyed  the  j)ro(its  of 
tije  business.  Now  in  such  case,  the  rea- 
son for  giving  preference  to  such  creditors 
a»may  first  discover  his  liability,  so  that 
stock  ostcnsii)ly  belonging  to  the  visible 
partner  shall  tirst  Ir-  applied  to  the  satis- 
faction of  their  debts,  does  not  exist."  .  . 
"  The  (piestion  now  is,  whether,  when  all 
the  CR'ditors  have  trusted  the  man  of 
business  and  ajiparent  owner  of  the  goods, 
any  one  of  them,  who  is  behind  the  rest 
in  his  attachment,  shall  supjilant  them 
anil  gain  priority  because  he  has  discover- 
ed this  concealed  liability.  At  the  time 
the  debt  wsvs  created,  he  stood  upon  the 
same  footing  witli  the  rest ;  he  trusted 
John  Hrown  and  the  goods  in  his  posses- 
sion ;  so  did  they.  They  have  taken  pos- 
session first  of  the  fund  which  was  held 
out  to  the  public  as  the  means  of  credit  ; 
anil  it  might  be,  and  jirobably  was  in  this 
very  case,  that  the  goods  attached  are  the 
ideiitical  goods  which  tliey  sold  to  the 
party  sued.  There  woubl  lie  thiii  no  pre- 
tence of  eipiity,  and  we  think  not  of  law, 
in  allowing  a  |irefcren(e  founded  upon  no 
meritorious  di.>tinction  of  circumstances." 
French  v.  Chase,  6  Greenl.  IGG.     The  au- 


thority of  the  two  preceding  cases  is  fully 
atlirmed  in  Cammack  v.  Johnson,  1  Green, 
Ch.  1G3.  See  also.  Van  Valeu  v.  Bussell, 
13  Barb.  590. 

(k)  Witter  v.  Richards,  10  Conn.  37. 
This  case  determines  that  a  first  attaching 
creditor,  who  has  dealt  vi-ith  a  partner  in 
(he  anirse  of  the  business  of  tJie  pai-tittjshi/i, 
but  at  the  same  time  in  ignorance  of  its 
existence,  shall  not  be  postponed  to  sub- 
seiiuent  attaching  creditors,  to  whom  the 
dormant  partners  were  known  when  the 
business  transactions  took  j)lace,  or  sub- 
sequently disclosed  before  their  attach- 
ments, but  that  he  shall  be  post])oned  if 
his  claims  did  not  arise  from  a  partnership 
transaction,  while  that  of  the  sui)seijuent 
attaching  creditor  did.  The  court  dis- 
tinguish Lord  V.  Baldwin  from  the 
case  before  them,  and  remark :  "  The 
result  in  that  case  is  j)eifeitly  compatible 
with  the  decision  in  tliis  ;  and  it  is  ap- 
parent that  the  court  meant  only  to  de- 
cide the  case  before  them  ;  for  tliev  say, 
'  Whether  a  private  creditor  of  his  could 
.seize  ])roperty  so  situated,  and  hold  it 
against  the  ostensible  owner,  is  a  question 
of  a  very  ditl'erent  nature.'  "  See  Alien 
r.  Dunn,  15  Maine,  292. 

(/)  Fisk  V.  Herrick,  6  Mass.  271  ; 
Church  V.  Knox,  2  Conn.  514  ;  Barber  v. 
Hartford  Bank,  9  id.  407  ;  Lyndon  v. 
Gorliam,  1  Gall.  307  ;  Mobley  i-.Lombat, 
7  IIuw.  (Miss.)  318. 

(in)  licydon  r.  Ileydon,  1  Salk.  392. 
"  Culenum  and  Ileydon  were  copartners, 
and  a  judgment  was  against  Coleman,  and 
all  the  goods  both  of  Coleman  and  Iley- 
don were  taken  in  execution,  and  it  was 
held  by  l/oli,  C.  J.,  and  the  court,  that 
the  sherirt'  nmst  seize  all,  because  the 
moieties  are  uniiivided  ;  for  if  be  si  ize  but 
a  moiety,  and  sell  that,  the  other  will  have 
a  right  to  a  moiety  of  that  moiety.     But 

[183] 


177* 


THE  LAW   OF  CONTKACTS. 


[book  I. 


rule  is  well  settled  that  if  partnership  effects  can  be  taken  either 
by  attachment  or  on  execution  to  secure  or  satisfy  the  debts  of 
one  of  the  partners,  this  can  be  done  only  to  the  extent  of  that 
partner's  interest,  and  subject  to  the  settlement  of  all  partnership 
accounts,  (n)  The  levy  of  execution  does  not  give  the  creditor 
a  separate  possession  of  the  goods.  The  *indebted  partner  had 
no  such  possession  himself;  and  the  levy  gives  to  his  creditor 
only  that  which  the  debtor  had  ;  and  that  is  a  right  to  call  for 
an  account,  and  then  a  right  to  the  balance  which  may  be  found 
to  belong  to  him  upon  a  settlement.  And  it  must  still  be  re- 
garded as  unsettled,  whether  a  sheriff  levying  an  execution  of  a 
separate  creditor  on  a  partner's  interest,  can  take  any,  and  if 
any  what,  actual  possession  of  the  partnership  property,  (o) 


he  must  seize  the  whole,  and  sell  a  moiety 
thereof  undivided,  and  tiie  vendee  will  be 
tenant  in  common  with  the  other  partner." 
Jacky  17.  Butler,  2  Ld.  Raym.  871.  "  Two 
joint  partners  ai-e  in  trade.  Judgment 
was  entered  against  one  of  them ;  and, 
upon  a  Jieri  facias,  all  the  goods,  being 
undivided,  were  seized  in  execution  ;  and 
upon  application  to  the  King's  Bench  by 
him  against  whom  the  judgment  was  not, 
the  court  held  that  the  sheriff  could  not 
sell  more  than  a  moiety,  for  the  property 
of  the  other  moiety  was  not  affected  by  the 
judgment,  nor  by  the  execution."  Bach- 
urst  V.  Clinkard,  1  Show.  17-3;  Marriott 
V.  Shaw,  1  Comyns,  277  ;  The  King  v. 
Manning,  2  id.  616.  "If  A,  B,  and  C 
are  partners,  and  judgment  and  execution 
is  sued  against  A,  only  his  share  of  the 
goods  can  be  sold.  It  is  true,  the  sheriff 
may  seize  the  whole,  because  the  share  of 
each  being  undivided,  cannot  be  known ; 
and  if  he  seize  more  than  a  tiiird  part,  he 
can  only  sell  a  third  of  what  is  seized,  for 
B  and  C  have  an  equal  interest  with  A  in 
the  goods  seized  ;  but  the  sheriff  can  only 
sell  the  part  of  him  against  whom  the 
judgment  and  execution  was  sued."  See 
Eddie  v.  Davidson,  Douff.  650  ;  Parker  v. 
Pistor,  3  B.  &  P.  288  ;  Wallace  v.  Patter- 
son, 2  Har.  &  McHen.  463 ;  Lyndon  v. 
Gorham,l  Gall.  367  ;  McCarty  r.  Emlen, 
2  Dall.  278 ;  Church  v.  Knox,  2  Conn. 
S14.  The  same  rule  is  recognized  at  law 
in  Vermont,  but  not  in  equity.  Reed  v. 
Shepardson,  2  Verm.  120;  Clark  v.  Ly- 
man, 8  id.  290  ;  Washburn  v.  Bank  of 
Bellows  Falls,  19  id.  278. 

(>j)  Fox  V.  Hanbury,  Cowp.  445;  Ed- 

[184] 


die  V.  Davidson,  Doug.  650 ;  West  v. 
Skip,  1  Ves.  Sen.  239 ;  Hankev  v.  Gar- 
ratt,  I  Ves.  Jr.  236;  Taylor  ('.Fields,  4 
id.  396  ;  Young  ?'.  Kcighley,  15  Ves.  557  ; 
In  re  Wait,  1  Jac.  &  Walk.  608,  Lord 
Eldon;  Dutton  v.  Morrison,  17  Ves.  193; 
Commercial  Bank  v.  Wilkins,  9  Greenl. 
33;  Doner  v.  Stauffer,  1  Penn.  198; 
Winston  v.  Ewing,  1  Ala.  (N.  S.)  129; 
Story  on  Part.  §  261  ;  Collyer,  §  822,  note  ; 
Ante,  note  (/()  ;  Crane  ?;.  French,  1  Wend. 
311  ;  Tappan  v.  Blaisdell,  5  N.  H.  190  ; 
Burgess  v.  Atkins,  5  Blackf.  337,  338. 
Dewey,  J.  :  "  The  general  rule  of  law  is, 
that  in  levying  an  execution  against  one 
partner  for  his  separate  debt,  the  officer 
may  take  possession  of  all  tlic  joint  prop- 
erty of  the  lirm,  in  order  to  inventory  and 
appraise  it.  He  has  no  authority  to  divide 
it ;  he  can  only  sell  the  joint  interest  of  the 
debtor,  whatever  it  may  be,  and  the  pur- 
chaser will  stand  in  the  place  of  the  debtor, 
and  hold  the  same  interest  in  the  joint  con- 
cern which  he  held." 

(o)  In  Scrugham  v.  Carter,  12  Wend. 
131,  it  was  held  that  replevin  does  not  lie 
against  a  sheriff  in  such  a  case  for  taking 
the  property  and  removing  it  to  a  place  of 
safe  custody,  and  the  remedy  of  the  other 
partners  is  to  obtain  an  oi'der  staying  pro- 
ceedings until  an  account  be  taken  in 
equity.  In  Burrell  r.  Acker,  23  id.  606, 
he  was  held  authorized  to  take  joint  jjos- 
session,  with  the  other  partners,  of  the 
partnership  ])roperty,  after  the  levy  and 
before  the  sale,  but  whether  he  was  entitled 
to  exclusive  possession,  was  not  decided. 
The  subject  was  fully  discussed  by  Mr. 
Justice    Cowen,  in   Phillips   v.   Cook,  24 


I 


en.  XII.] 


PARTNERSHIP. 


*178 


Considering  the  great  diversity  of  autliority,  and  Consequent 
uncertainty,  as  to  this  power  of  ihe  sheriff,  the  question  seems 


WcikI.  .389,  and  it  was  decided  that,  on  an 
execution  at  law  ajjaiiist  one  of  two  part- 
ners, the  sheriff  mi>:ht  lawfully  seize,  not 
merely  the  moiety,  but  the  corpus  of  the 
joint  estate,  or  the  whole,  or  so  much  of 
the  entire  partnership  effects  as  mi*rht  be 
necessary  to  satisfy  the  execution,  and  de- 
liver the  property  sold  to  the  purchaser  ; 
and  if  he  purchases  with  notice  of  the  part- 
nership, he  takes  suly'ect  to  an  account 
between  the  i)artncrs,  and  to  the  equitable 
claims  of  the  partnership  creditors.  It  has 
since  been  held  that  he  is  ecjually  subject 
to  an  account  whether  he  had  such  notice 
or  not.  Wal.«h  r.  Adams,  .3  Dcnio,  12.5. 
The  same  cases  affirm  his  power  to  deliver 
all  the  i;oods  of  the  ])artnersliip  to  thepur- 
chiiscr.  Birdscye  v.  Ray,  4  Hill,  158,  af- 
firms Phillips  V.  Cook,  so  far  as  it  relates 
to  the  seizure  of  the  whole  of  .the  joint 
estate  by  the  sheriff  on  an  execution 
iii^aiust  one  partner  for  his  .separate  debt. 
But  the  sheriff  sul)jects  himself  to  an  action 
if  he  sells  the  entire  property  in  the  goods 
of  the  copartnership  or  any  thing  more 
than  the  debtor  j)artncr*s  interest  in  them. 
Wad(K,-ll  V.  Cook,  2  Hill,  47,  and  note  ; 
Walsh  r.  Adams,  .3  Deiiio,  125.  In  New 
York,  it  is  held  that  neither  a  court  of  law 
nor  of  ecpiity  will  stay  execution  at  law 
atruinst  the  joint  estate  for  a  separate  debt 
until  an  account  be  taken.  Moody  v. 
I'aviie,  2  Johns.  Ch.  548  ;  lit  rr  Smith, 
IG.Iolius.  l(»f>,  note;  Philiijis  r.  Cook,  24 
Wend.  .389;  Herf;man  v.  Dettleba.h,  II 
How.  Pr.  Hejis.  40.  See  liced  r.  Howard, 
2  Met.  30.  But  this  rule  has  been  disap- 
j)roved.  Cammack  t'.  ,Johii<on,  1  Green, 
Ch.  108.  In  Alabama,  the  sheriff  is  held 
jii>tilicd  in  taking  exclusive  ])ossession  of 
the  goods  of  the  (inn  until  the  aid  of  a 
court  of  equity  is  successfully  invoked. 
Moore  c.  Sample,  .3  Ala.  (N.  S.)  .319.  In 
New  IIani])shire,  the  right  of  the  sheriff  to 
t4ike  possession  of  partnership  jiroperty, 
levied  on  for  the  jtrivate  debt  of  a  jiartner, 
has  ln'cn  denied  after  an  elalxjrate  exami- 
nation of  the  question,  (iibson  r.  StevcTis, 
7  N.  H.  352,  .357.  Parbr,  .7.  :  "The 
specific  property  of  a  partnei-ship  cannot 
he  lawfully  taken  and  sold  to  satisfy  the 
])rivate  debt  of  one  of  the  jiartuers.  His 
creditor  can  have  no  greater  right  than  the 
debtor  himself  has  individually,  which  is 
a  right  to  a  share  of  the  surplus.  This  is 
the  necessary  result  of  the  doctrine,  that 
the  partnership  property  is  a  fund  in  the 

16* 


first  place  for  the  payment  of  the  partner- 
ship debts,  and  that  the  interest  of  an  in- 
dividual partner  is  onlv  his  share  of  the 
surplus.  5  N.  H.  192,  193,  250 ;  9  Conn. 
410.  There  are  difliculties  in  selling  the 
interest  of  one  jjartner  u])on  an  execution. 
Courts  of  cipiity  first  direct  an  account, 
which  courts  of  law  caiuiot  do  ;  and  if  the 
interest  of  one  partner  may  be  sold  upon 
an  execution  at  law,  it  must  be  left  to  an 
account  afterwards.  Gow  on  Part.  246 
et  set].,  254.  And  a  question  may  arise  in 
such  case,  whether  the  sale  operates  as  a 
dissolution  of  the  partnershi])  before  the 
time  limited  by  the  articles  of  coparlncr- 
sliij),  or  whether  the  other  jiartners  are 
authorized  to  cany  on  the  trade,  and  ac- 
count at  the  expiration  of  the  term.  If 
the  sheriff  can  sell  only  the  interest  of  the 
partner,  and  not  the  goods,  he  must  be 
liable  if  he  make  actual  seizure  of  the  spe- 
cific property,  cither  to  the  partnershi])  or 
the  other  ]iartners.  Wilson  r.  Conine,  2 
Johns.  280.  Especially  if  he  sell  the  whole, 
as  in  this  case.  1  Gall.  370;  15  Mass. 
82."  Morrison  v.  Blodgett,  8  X.  II.  238. 
Parker,  J. :  "  If  the  sheriff  cannot  sell  an 
interest  in  specified  portions  of  the  goods 
of  the  partnershi}),  theix'  seems  to  be  no 
reason  why  he  should  levy  upon  those 
goods,  and  deliver  them  to  the  vendee,  or 
why  he  should  in  fact  reduce  them  into 
possession.  If  '  in  truth  the  sale  does  not 
transfer  any  ]iart  of  the  joint  ])roperty  so 
as  to  entitle  him  '  (the  ven<lee)  '  to  take  it 
from  the  other  partner,'  (I  Story's  Eq. 
020,)  on  what  ])rinciple  is  the  sheriff  au- 
thorized to  seize  and  hold  to  the  exclusion 
of  the  other  ])aitners,  what  his  vendee, 
after  a  sale  of  the  intei-cst  of  the  debtor  is 
perfected,  cannot  take  from  them  ?  If  the 
sheriff  sells  '  only  the  interest  of  such 
])artner,  and  not  the  effects  themselves,' 
(1  Wightwick's  Ex.  R.  50,  cited  2  Johns. 
Ch.  549,)  upon  what  grounds  shall  he 
.seize  the  etVects  which  he  is  not  to  sell  ? 
If  '  the  creditors  of  the  partnership  have  a 
preference  to  be  paid  their  debts  out  of  the 
l)artnership  funds  before  the  private  credi- 
tors of  either  of  the  jiartners,'  and  this  'is 
worked  out  through  the  e(|uity  of  the  part- 
ners over  the  whole  funds,'  (i  Story's  Eq. 
025,)  that  ecpiity  should  prevent  them  from 
being  deprived  of  the  means  of  payment 
by  reason  of  such  seizuiv  by  the  sheriff, 
who  can  neither  sell  the  goods,  nor  pay 
the  creditors,  and  against  whom  they  can- 

[185] 


179* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


to  call  for  statutory  provisions  ;  but  in  the  absence  of  such  pro- 
visions, and  on  general  principles,  it  would  seem  that  the  sheriff 
cannot  take  or  give,  by  sale,  specific  possession  of  the  partner- 
ship property.  He  takes  and  can  sell  only  the  right  and  interest 
of  the  indebted  partner  to  and  in  the  whole  fund. 

Different  rules  and  modes  of  practice  prevail  in  different  parts 
of  this  country.  But  wherever  it  can  be  done,  the  better  and 
safer  way  would  probably  be  for  the  writ  to  be  a  trustee  process, 
or  in  the  nature  of  a  foreign  attachment,  and  this  should  be 
served  on  the  other  partners  as  alleged  trustees,  and  a  return 
made  by  the  sheriff  that  he  had  attached  all  the  *right  and  in- 
terest of  the  partner  defendant  in  the  stock  and  property  of  the 
partnership.  So,  after  sale  on  execution,  the  sheriff  should  con- 
vey to  the  purchaser  all  the  right  and  interest  of  the  indebted 
partner  in  the  stock  and  property  of  the  partnership.  And  the 
purchaser  would  then  have  the  right  to  demand  an  account,  and 
a  transfer  to  him  of  whatever  balance  or  property  would,  upon 
such  account,  have  belonged  to  his  debtor,  and  perhaps,  have 
the  same  right  of  possession,  (p) 


not  proceed,  so  long  as  he  may  lawfully 
hold  the  goods."  .  .  .  "In  Smith's  case,  16 
Johns.  106,  the  court,  after  saying  that  the 
separate  creditor  takes  the  share  of  his 
debtor  in  the  same  manner  as  the  debtor 
himself  had  it,  and  subject  to  the  rights  of 
the  other  partner,  add  :  '  The  sheriff  there- 
fore does  not  seize  the  partnersliip  effects 
themselves,  for  the  other  partner  lias  a 
right  to  retain  them  for  tlie  payment  of  the 
partnership  debts.'  And  in  Crane  v. 
Frcncli,  1  Wend.  313,  Chief  Justice  Sav- 
age, after  considering  tiie  subject,  says  : 
•  The  sheriff  therefore  sells  the  mere  right 
and  title  to  tlie  partnership  property,  but 
does  not  deliver  possession.'  Vale  also, 
5  N.  H.  193;  2  Conn.  516,  517.  The 
conclusion  that  the  sheriff,  upon  an  exe- 
cution against  one  partner,  is  not  to  deliver 
to  his  vendee,  and  is  not  to  seize  the  part- 
nerslii|)  effects,  is  sustained,  therefore,  not 
only  by  the  reason  of  the  thing,  after  the 
adoption  of  the  general  principle  before 
stated,  l)ut  by  express  authority."  The 
■doctrine  of  these  cases  is  affirmed  in  Page 
V.  Carpenter,  10  N.  II.  77;  Uow  v.  Say- 
ward,  12  id.  271,  14  id.  9.  See  Taylor  v. 
Field,  4  Vcs.  396  ;  Johnson  v.  Evans,  7 
M.   &  G.   240,   249,  250,    Tindal,  C.  J. ; 

[186] 


Collyer  on  Part.  B.  iii.  ch.  vi.  sect.  10.  — 
In  Newman  v.  Bean,  1  Foster,  93,  it  was 
held,  tliat  an  action  might  be  maintained 
against  a  third  person  who  seizes  goods  on 
execution  belonging  to  a  partnershij),  for 
the  debt  of  an  individual  partner,  and  ex- 
cludes the  other  partners  from  the  posses- 
sion of  them.  See  on  this  subject,  26 
Amei-.  Jurist,  Art.  3. 

{p)  Morrison  v.  Blodgett,  8  N.  H.  254. 
Parker,  J.  :  "  Whetlier,  under  our  present 
laws,  tlie  creditor  can  do  more  than  return 
a  general  attachment  of  the  interest  of  his 
debtor  in  tiie  partnership,  and  summon  the 
other  partners  as  Iiis  trustees ;  and  what 
arc  tlic  effects  of  such  a  service  upon  the 
riglits  and  duties  of  the  other  partners, 
and,  of  course,  upon  the  action  of  the 
debtor  himself?  Whether  it  can  suspend 
his  right  to  interfere  with  the  ]jartnershii) 
property,  so  long  as  the  attachment  exists, 
or  whether  he  may  proceed  to  act  as  part- 
ner until  judgment  and  sale  upon  execu- 
tion ?  And  whether,  after  an  attachment, 
tlic  creditor  of  any  of  the  partners  may 
maintain  a  bill  in  equity  for  an  account 
before  a  seizure  and  sale  of  the  interest  of 
the  debtor  on  the  execution  ?  are  questions 
which  may  arise,  but  upon  which  this  case 


CH. 


XII.] 


PARTNERSHIP. 


180 


That  the  private  creditors  of  one  of  the  partners  cannot  reach 
the  partnership  funds  until  the  claims  of  the  partnership  *credi- 
tors  are  satisfied,  is  now  the  almost  universal  rule  both  in  courts 
of  law  and  of  equity.  But  whether  the  private  property  of  a 
partner  is  equally  preserved  for  his  private  creditors,  is  not  per- 
haps certain.  At  law,  no  such  rule  seems  to  be  well  estab- 
lished. But  where  the  partnership  has  failed,  and  the  partner- 
ship property  is  held  as  a  fund  for  the  partnership  creditors,  the 
justice  of  holding  the  private  property  of  individual  partners  for 
the  exclusive  benefit  of  their  private  creditors,  is  obvious.  Then 
each  fund  would  be  held  separate  ;  the  partnership  assets  for 
the  partnership  creditors,  and  the  assets  of  each  partner  for  his 
own  creditors,  and  only  the  balance  of  each  fund,  after  the 
special  claims  upon  it  were  discharged,  would  be  applicable  to 
the  claims  of  the  other  class,  (q) 


does  not  rail  for  an  ojiinion." — Dow  v. 
Say  ward,  1:2  N.  II.  27G.  l)>liam,  J.  :  "  In 
the  case  of  Morrison  v.  Blod^^ett,  is  a  very 
elaborate  examination  of  tliis  (jnestion  hy 
Mr.  Chief  Justice  Parker,  and  the  0])iiiion 
of  the  court  is  stronfrly  intimated  that  a 
general  attachment  of  the  interest  of  a 
partner  in  a  firm  may  he  made,  thouj^h  it 
is  su;:;;ested  that,  in  order  to  make  the  at- 
tachment availaiile,  hy  ohtainin;;  a  true 
km)wled<:e  of  the  extent  of  the  ])artnership 
interest,  it  might  he  ex|)edient  or  necessary 
to  summon  the  other  parties  as  trustees. 
Wc  are  unahle  now  to  sec  any  better  course 
than  was  there  sufr};estc<l.  There  seems 
to  he  no  good  reason  for  giving  np  the 
process  of  attachment  at  law  in  such  cases, 
as  it  would  proltahly  in  this  mode  l>e  ren- 
dered equally  as  etfectual  and  j)rompt  as 
any  other  means  of  securing  the  interest  of 
the  debtor  that  might  be  devised.  If  a 
process  in  chancery  should  be  deemed  more 
effectual,  still  it  might  be  ilesiralile  also  to 
retiiin  a  right  of  attaciiment  at  law.  See 
also.  Page  v.  Carpenter,  10  N.  II.  77." 
S.  C.  U  N.  II.  9,  12.  Parker,  C.  J.  : 
"  Neither  will  the  fact  that  the  interest  of 
a  partner  is  of  a  nature  that  is  incapai)le 
of  actual  seizure,  and  i>f  a  redin'tiim  into 
possession,  exempt  it  from  a  seizure  and 
sale  uptin  execution.  E(iuities  of  ifdemp- 
tion  and  other  interests  arc  of  that  char- 
acter, but  are  nevertheless  sidiject  to  an 
execution  at  law.  It  follows,  then,  that 
the  interest  of  the  defendant  in  the  j)rop- 
erty  of  the  stage  company  was  liable  to 


attachment.  "Whatever  may  be  the  snb- 
ject  of  levy  and  sale,  may  be  the  subject 
of  attachment.  It  is  true  that  there  is 
difficulty  in  securing  the  interest  of  one 
partner  by  attachment,  so  ihat  he  or  hi.s 
partners,  through  their  right  to  hold  the 
property,  may  not  imjiair  the  security. 
This  snbject  was  adverted  to  in  Morrison 
1-.  Blodgett,  before  cited.  IVrliajis  it  can- 
not be  done  without  some  fiu'ther  legisla- 
tion, unless  it  be  through  the  aid  of 
chancery  by  means  of  an  injunction. 
Kut  the  dirticulty  of  effectually  securing 
the  interest  of  one  partner  by  an  attach- 
ment, so  that  the  other  partners,  or  the 
debtor  himself,  cannot,  through  the  right 
of  the  other  i)artncrs  to  retain  ])Osscssion 
of  the  property,  im])air  the  security,  by  no 
means  jirovcs  that  such  interest  is  not  at- 
tachable. It  may,  notwithstanding,  he 
attached,  and  the  creditor  will  thereiiy  gain 
a  ]irior  right  to  have  it  applied  in  satisfac- 
tion of  his  judgment.  And  should  the 
debtor  or  his  ])artncrs  attemjjt  to  avoid  the 
effect  of  the  attachment,  the  creditor  may, 
perhajis,  on  application  to  this  court,  ob- 
tain an  injunction  to  restrain  them  from 
any  acts  inconsistent  with  his  right  to  have 
tiie  interest  of  his  debtor  sold  upon  the 
executifui."     i)p.  12,  13. 

{</)  In  the  time  of  Lord  Ilarilwickc 
joint  creditors  were  allowed  in  bankruptcy 
to  prove  their  debts  under  a  separate  cout- 
mission  against  one  partner,  or  under  .sep- 
arate commissions  against  all  the  part- 
ners, l)ut  onlv  for  the  jiuri>ose  of  assenting 

[187] 


180- 


THE   LAW    OF   CONTRACTS. 


[book  I. 


The  rights  of  partnership  creditors  to  a  preference  in  the  dis- 
tribution of  the  partnership    property  must  not  be  taken  to  ex- 


to  01'  dissenting  from  the  certificate,  antl 
were  considered  to  liavc  an  equitable  right 
to  the  surphis  of  the  separate  estate,  after 
payment  of  the  separate  creditors.  Ex 
p(trte  Baudier,  I  Ativ.  98 ;  Er  parte  Vo- 
gue!, id.  132  ;  Ex  parte  Oldlvnow,  Co.  B. 
L.  ch.  6,  sect.  15  ;  Ex  parte  Cobliam,  id. 
See  Dutton  v.  Morrison,  17  Ves.  207  ; 
Ex  parfp  Farlow,  1  Rose,  422.  Lord 
Tluirlow  broke  in  upon  this  rule,  allowing 
joint  creditors  to  prove  and  take  dividends 
under  a  separate  commission,  and  holding 
that  a  commission  of  bankruptcy  was  an 
execution  for  all  the  creditors,  and  that  no 
distinction  ough't  to  be  made  between 
joint  and  separate  debts,  but  that  they 
ought  to  be  paid  ratably  out  of  the  bank- 
rupt's property.  Ex  parte  Havdon,  Co. 
B.  L.  ch.  6,  sect.  15,  S.  C.  1  Bro.  C.  C. 
453  ;  Ex  parte  Copland,  Co.  B.  L.  ch.  6, 
§  15,  S.  C.  1  Cox,  429  ;  Ex  parte  Hodg- 
son, 2  Bro.  C.  C.  5  ;  Ex  parte  Page,  id., 
l-VJ  ;  Ex  parte  ITmtnm,  id.  120.  Lord 
Eosslyn  restored  the  principle  of  Lord 
Hardvvickc's  rule,  (Ex  parte  Elton,  3  Ves. 
238;  Ex  parte  Abell,  4  id.  837,)  which 
was  adopted  by  Lord  Eldon  less  out  of 
regard  to  the  reason  of  the  rule  itself  than 
for  the  sake  of  establishing  a  uniform 
practice.  Ex  parte  Clay,  6  Ves.  813; 
Ex  parte  Kensington,  14  id.  447  ;  Ex  parte 
Taitt,  16  id.  193.  See  his  remarks  in 
Chiswell  V.  Gray,  9  Ves.  126;  Barker  v. 
Goodair,  11  id.  86,  and  such  is  the  English 
law.  Gow  on  Part.  312.  There  are, 
however,  three  exceptions  to  this  rule  : 
"  1st,  where  a  joint  creditor  is  the  petition- 
ing creditor  under  a  separate  tiat ;  2d, 
where  there  is  no  joint  estate,  and  no  sol- 
vent partner  ;  3d,  where  there  ai-e  no  sep- 
arate debts.  In  the  first  case  the  petition- 
ing creditor,  and  in  the  second  all  the 
joint  creditors,  may  prove  against  the  sej)- 
arate  estate  jmri  passu  with  the  separate 
creditors.  In  the  last  case,  as  there  are 
no  separate  creditors,  the  joint  creditors 
will  be  admitted  pari  passu  with  each 
other,  upon  the  separate  estate."  Collyer 
on  Part.  §  923  ;  Story  on  Part.  §§  378-382. 
But  see  Emanuel  v.  Bird,  19  Ala.  596, 
and  Cleghorn  ii.  Ins.  Bank  of  Columbus, 
9  Geo.  319.  The  history  of  the  English 
rule  was  reviewed  in  Murray  v.  Murray, 
5  Johns.  Ch.  60.  It  has  been  ado]ited  by 
some  American  courts.  Woddrop  v. 
Ward,  3  Desaus.  203  ;  Tunno  v.  Tre- 
zevant,  2  id.  270  ;  Hall  v.  Hall,  2  MeCord, 

[188] 


Ch.  302  ;  McCulloch  v.  Dashiell,  1  Harr. 

6  Gill,  96  ;  MurriU  v.  Neill,  8  Howard, 
414.  See  In  re  Marwick,  Daveis,  229  ; 
In  re  Warren,  id.  320  ;  Morris  r.  Morris, 
4  Grattan,  293.  In  Jackson  v.  Cornell,  1 
Sandf.  Ch.  348,  the  Assistant  Vice-Chan- 
cellor  said  :  "  It  is  not  denied  that  the  nile 
of  equity  is  uniform  and  stringent,  that  the 
partnership  ])roperty  of  a  firm  shall  all  be 
applied  to  the  partnership  debts,  to  the 
exclusion  of  the  creditors  of  the  individual 
members  of  the  firm  ;  and  that  the  cred- 
itors of  the  latter  are  to  be  first  paid  out  of 
the  separate  eft'ects  of  their  debtor,  before 
the  partnership  creditors  can  claim  any 
thing.  See  Wilder  v.  Keelcr,  3  Paige, 
167  V  Egberts  v.  Wood,  id.  517  ;  Payne  v. 
Matthews,  6  id.  19  ;  Hutchinson  v.  Smith, 

7  id.  26  ;  1  Story's  Eq.  Jar.  §§  625,  675." 
And  it  was  held  in  Jackson  f.  Cornell 
that  a  general  assignment  of  his  separate 
property  made  by  an  insolvent  copartner, 
which  prefers  the  creditors  of  the  firm  to 
the  exclusion  of  his  own,  is  fraudulent  and 
void  as  to  the  latter.  The  English  rule 
has  been  discarded  in  Pennsylvania.  Bell 
V.  Newman,  5  S.  &  R.  78 ;  fn  re  Spcny, 
1  Ash.  347.  And  Lord  Tharlow's  rule 
prevails  in  Connecticut,  although  the  sur- 
viving partner  be  solvent  and  within  the 
jurisdiction  of  the  court.  Camp  v.  Grant, 
21  Conn.  41.  It  has  been  held  in  Massa- 
chusetts that  whatever  may  be  the  rule  in 
a  court  of  equity,  an  attachment  of  the 
separate  property  of  a  partner  for  a  jiart- 
nership  debt  is  not  defeated  at  law  by  a 
subsequent  attachment  of  the  same  ]irop- 
ertv  for  his  separate  debt. —  Allen  r. Wells, 
22 'Pick.  450.  Detcei/,  J.  :  "  It  is  urged, 
however,  on  the  part  of  the  defendants, 
that  as  this  couit,  as  a  court  of  law,  have 
long  since  recognized  the  ])rinciple  that  an 
attachment  of  tlie  goods  of  a  partnership, 
by  a  creditor  of  one  of  the  partners,  is  not 
valid,  as  against  an  after  attachment  by  a 
partnership  creditoi",  it  should  also  adopt 
the  converse  of  the  proposition,  giving  a 
like  preference  to  separate  creditors  in 
respect  to  the  separate  property.  But  we 
think  that  there  is  a  manifest  distinction 
in  the  two  cases.  The  restriction  upon 
separate  creditors,  as  to  partnership  ]jrop- 
erty,  arisen  not  merely  from  the  nature  of 
the  debt  attempted  to  be  secured,  but  also 
from  the  situation  of  the  jjroj^erty  pro- 
posed to  be  attached.  In  such  a  case,  a 
distinct  moiety   or   other  proportion,  in 


en.  XII.] 


PARTNERSHIP. 


-180 


tend  so  as  to  affect  a  bond  fide  transmutation  of  partnership 
into  private  property  made  prior  to  or  upon  a  dissolution. 
While  the  partnership  remains  and  its  business  is  going  on, 
whether  it  be  in  fact  solvent  or  not,  any  fair  distribution  of  the 
partnership  effects  among  the  members  of  the  firm  cannot  be 
disturbed  by  any  equities  of  creditors  of  the  partnership,  {qq) 


i 


\ 


certain  specific  articles  of  the  partnersliip 
property,  cannot  l>e  taken  and  sold,  as  one 
partner  has  no  distinct  se[)arate  jn-operty 
in  the  partnershij)  effects.  His  interest 
embraces  only  what  remains  upon  the 
final  adjustment  of  the  partnership  con- 
cerns. But,  on  the  other  hand,  a  debt 
due  from  the  coiiartnership  is  the  debt  of 
each  member  of  tiie  firm,  and  every  indi- 
vidual meml)er  is  liable  to  pay  the  whole 
amount  of  the  same  to  the  creditor  of  the 
firm.  In  the  case  of  tlie  copartnership,  the 
interest  of  the  delitor  is  not  the  ri<rht  to 
any  specific  property,  but  to  a  residuum 
which  is  uncertain  and  contingent,  while 
the  interest  of  one  i«irtner  in  his  individual 
pro])crty  is  that  of  a  present  absolute  in- 
terest in  the  specific  property.  Each  sep- 
arate member  of  the  copartnership  i)eini^ 
thus  liable  for  all  debts  due  from  the  co- 
partnership, and  no  objection  arising;  from 
any  interference  with  the  rij;hts  of  oliiers 
as  joint  owners,  it  .seems  necessarily  to  fol- 
low tliat  his  separate  jiroperty  may  be 
well  adiud};ed  to  be  liable  to  be  attached 
and  held  to  secure  a  debt  due  from  the 
copartnership."  And  in  the  dist!il)ution 
of  the  estates  of  deceased  insolvent  delit- 
ors,  jiartnership  debts  are  |)ai(l  ratably  with 
the  j)rivate  claims.  8|>arhawk  v.  Kusscll, 
U)  Mete.  30.5.  But  in  New  Hampshire 
the  Eni^lish  rule  has  been  adopted  in  the 
law,  to  its  fullest  extent,  and  where  real 
estate  of  one  ))artnerwas  set  off  on  execu- 
tion for  a  dclit  due  from  the  partnership, 
and  afterwards  the  same  land  was  set  oft" 
for  a  separate  debt  of  the  siinie  partner, 
the  last  levy  was  held  to  prevail  over  the 
first  and  to  ^\\v.  the  Icf^ul  title.  Jarvis  v. 
Brooks,  3  Foster,  130.  —  Tiie  conclusion 
of  the  Supreme  Court  of  Vermont  on  tiiis 
question  is  as  follows  :  "  That  a  partner- 


ship contract  imposes  precisely  the  same 
oblii^ation  upon  each  separate  })artner 
that  a  sole  and  sei)arate  contract  does, 
and  that  it  is  not  true  that,  in  joint  con- 
tracts, the  creditor  looks  to  the  credit  of 
the  joint  estate,  and  the  separate  credi- 
tor to  that  of  the  separate  estate ;  and 
that  there  is  no  express  or  im|)lied  con- 
tract'resulting  from  the  law  of  partner- 
ship, that  the  separate  estate  shall  go  to 
pay  separate  debts  exclusively ;  but  that, 
as  the  partnership  creditors  in  equity 
have  a  prior  lien  on  the  partnership 
funds,  chancery  will  comjiel  them  to  ex- 
haust that  remedy  before  resorting  to 
the  separate  estate ;  but  that,  beyond 
this,  both  sets  of  creditors  stand  precise- 
ly equal,  both  at  law  and  in  eciuity." 
Per  lledjield,  J.  Bard  well  v.  Perry,  19 
Verm.  292,  303.  Mr.  Justice  Story  says 
of  the  English  rule :  "  It  now  stands  as 
much,  if  not  more,  u])on  the  general 
ground  of  authority,  and  the  maxim 
sUire  ({('cisig,  than  uj)on  the  ground  of 
any  equitalile  reasoning."  Story  on 
Part.  §  377.  And  he  says  further:  "  It 
is  not,  perhaps,  too  much  to  say,  that  it 
rests  on  a  foimdation  as  (picstionablc 
and  as  unsatisfactory  as  any  rule  in  the 
whole  system  of  our  jurisprudence,"  but 
"should  lie  left  undisturbed,  as  it  may 
not  be  easy  to  substitute  any  other  rule 
which  would  uniformly  work  with  per- 
fect equality  and  e(|uiiy."  ^  382.  Ctian- 
ccllor  Kent,  on  the  other  hand,  remarks  : 
"  For  my  ])art,  I  am  free  to  confess  that 
I  feel  no  hostility  to  the  rule,  and  think 
that  it  is,  upon  the  whole,  reasonable  and 
just."     3  Kent,  65,  note. 

{<!'/)  Kx  parte  Hutfin,  G  Ves.  119; 
Allen  V.  Center  Valley  Co.,  21  Conn. 
130. 

[  1-^0  ] 


185*  THE   LAW   OF    CONTRACTS.  [bOOK  I. 


SECTION    XVI. 

LIMITED    PARTNERSHIP. 

This  species  of  partnership  has  been  but  recently  introduced 
into  this  country,  but  has  already  been  adopted  in  very  many 
of  our  States,  and  promises  to  be  of  great  utility,  (r)  We 
have  borrowed  it  from  the  continent  of  Europe,  as  it  is  wholly 
unknown  in  English  practice,  and  is  not  recognized  by  the  com- 
mon law  of  England.  The  limited  partnerships  sometimes 
spoken  of  in  English  cases  and  text-books,  mean  *only  what 
may  be  called  joint  adventure,  or  a  partnership  limited  to 
a  particular  business. 

With  us,  a  limited  partnership,  or,  as  it  is  sometimes  called, 
a  special  partnership,  is  a  very  different  thing.  The  purpose  of 
it  is  to  enable  a  party  to  put  into  the  stock  of  a  firm  a  definite 
sum  of  money,  and  abide  a  responsibility  and  share  a  profit 
which  shall  be  in  proportion  to  the  money  thus  contributed, 
and  no  more.  By  the  common  law  of  partnership,  he  who  had 
any  interest  in  the  stock,  and  received  any  proportion  of  the 
profits,  was  a  partner,  and  as  such  liable  in  solido  for  the  whole 
debts  of  the  firm.  Capitalists  were  therefore  unwilling  to  place 
their  capital  in  the  stock  of  a  trading  company,  unless  advan- 
tages were  offered  them  equivalent  to  this  great  risk.  Men  of 
business  capacity,  who  had  only  their  skill,  industry,  and  integ- 
rity, could  not  always  borrow  adequate  capital,  because  they 
could  not  give  absolute  security ;  and  they  could  not  pay  as  a 
premium  for  the  risk  more  than  legal  interest,  because  the  usury 
laws  prohibited  this.  But  they  may  now  enter  into  an  arrange- 
ment with  a  capitalist,  by  which  they  receive  from  him  ade- 
quate means  for  carrying  on  their  business  profitably,  paying 
him  a  fair  share  of  the  profits  earned  by  the  combination  of  his 
capital  and  their  labor,  while  he  runs  the  risk  of  losing  the 

(r)  New  York,  Massachusetts,  Rhode  Una,  Georgia,  Alabama,  Florida,  Missis- 
Island,  Connecticut,  Vermont,  New  Jer-  sijipi,  Indiana,  Michigan,  Illinois,  Keii- 
scy,  Pennsylvania,  Maryland,  South  Caro-     tucky,  Virginia. 

'[190] 


CH.  XII.]  PARTNERSHIP.  *186 

capital  which  is  thus  earning  him  a  profit,   but  knows  that  he 
can  lose  no  more. 

Partnerships  of  this  kind  being,  as  has  been  stated,  wholly 
unknown  to  the  common  law,  are  authorized  and  regulated 
only  by  statute.  And  these  statutes  differ  considerably  in  the 
several  States.  But  the  provisions  are  generally  to  the  follow- 
ing effect.  First,  there  must  be  one  or  more  who  are  general 
partners,  and  one  or  more  who  are  special  partners ;  secondly, 
the  names  of  the  special  partners  do  not  appear  in  the  firm, 
nor  have  they  all  the  powers  and  duties  of  active  members ; 
thirdly,  the  sum  proposed  to  be  contributed  by  the  special 
partners  must  be  actually  paid  in  ;  fourthly,  the  arrangement 
must  be  in  writing,  specifying  the  names  of  the  partners, 
amount  paid  in,  &c.,  which  is  to  be  acknowledged  before  a 
magistrate,  and  then  recorded  and  advertised,  in  such  way  as 
shall  give  the  public  distinct  knowledge  of  what  it  is,  *and  who 
they  are,  that  persons  dealing  with  the  firm  give  credit  to. 
Besides  these  general  provisions,  others  of  a  more  particular 
nature  are  sometimes  introduced.  Thus,  in  some  States,  no 
special  partnership  may  carry  on  the  business  of  insurance  or 
banking.  And  there  are  often  special  provisions  to  give  greater 
security  to  the  public  and  persons  dealing  with  such  firms. 
But  for  these  we  must  refer  the  reader  to  the  statutes  of  the 
several  States. 

A  special  partner,  complying  with  the  requirements  of  the 
law,  cannot  be  held  as  personally  liable  for  the  debts  of  the 
firm  ;  although,  of  course,  the  whole  amount  which  he  contrib- 
utes goes  into  the  fund  to  which  the  creditors  of  the  firm  may 
look. 

There  has  been  as  yet  very  little  adjudication  of  questions 
which  have  arisen  under  these  statutes,  —  none  of  importance, 
that  we  are  aware  of,  but  those  which  determine  that  the 
special  partner  must,  at  his  own  peril,  comply  precisely  with 
the  requirements  of  the  statutes.  Any  disregard  of  them,  or 
want  of  conformity,  although  it  be  accidental  and  entirely 
innocent  on  his  jjart,  or  any  material  mistake  by  another,  as 
by  the  printer  who  prints  the  advertisement,  deprives  him  of  the 

[191] 


186- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


benefit  of  the  statute.      He  is  then  a  partner  at  common  law, 
and,  as  such,  liable  in  solido  for  the  whole  debts  of  the  firm.  (5) 


(s)  Hubbard  v.  Morgan,  U.  S.  D.  C. 
for  N.  Y.  May,  1839,  cited  in  3  Kent,  36 ; 
Ai'gall  V.  Smith,  3  Denio,  435.  In  this 
case,  whicli  was  decided  by  the  Court  of 
Errors  of  New  York,  unanimously,  it  was 
held,  that  the  publication  of  the  amount 
contributed  by  the  special  partner  as 
$5,000,  whereas  it  was  $2,000,  left  upon 
him  all  the  liabilities  of  a  general  part- 
ner. The  argument  oi  Spencer,  Senator, 
who  alone  gives  the  reasons  of  the  decis- 
ion, turns  upon  the  necessity  of  a  true 
advertisement ;  he  regards  an  erroneous 
advertisement  as  no  advertisement  at  all. 
But  suppose  the  error  had  been  the  reverse 

[192] 


of  what  it  was.  Instead  of  calling  the 
contribution  $5,000,  when  it  was  but 
$2,000,  if  it  had  called  it  $2,000,  when  it 
was  in  fact  $5,000,  it  might  have  been 
well  urged,  in  the  absence  of  all  ill-design 
or  personal  fault  on  the  part  of  the  special 
partner,  that  this  error  could  not  mislead 
the  public,  or  any  dealer  with  the  firm  to 
his  injury,  as  it  made  the  grounds  of  credit 
less  than  their  actual  value,  instead  of,  as 
in  the  case  at  bar,  making  them  more. 
But  even  then  the  necessity  of  a  strict 
compliance  with  the  provisions  of  the 
statute  might  be  sufficient  to  hold  the 
special  partner  as  a  general  one. 


I 


CH.  xiir.]  xovATiox.  1S7-*188 


CHAPTER     XIII. 


NEW   PARTIES   BY   NOVATION. 


The  term  novation  has  not  been  much  used  in  English  or 
American  law,  but  may  be  found  in  some  late  English  cases ; 
and  the  thing  itself,  or  this  form  of  contract,  may  be  found  in 
many  cases,  both  in  England  and  in  this  country.  The  word 
is  borrowed  from  the  civil  law,  where  it  forms  an  important 
topic  ;  and  we  may  find  a  clear  statement  of  its  principles  in 
Pothier's  work  on  Contracts.  (.v.s)  It  is  defined  thus :  a  trans- 
action whereby  a  debtor  is  discharged  from  his  liability  to  his 
original  creditor,  by  contracting  a  new  obligation  in  favor  of  a 
new  creditor,  by  the  order  of  his  original  creditor.  Thus,  A  owes 
B  one  thousand  dollars  ;  B  owes  C  the  same  sum,  and  at  the 
requd^tof  C  orders  A  to  pay  that  sum,  when  it  shall  fall  due,  to 
C.  To  this  A  consents,  and  B  discharges  A  from  all  obligation 
to  hini,,  A  thus  contracts  a  new  obligation  to  C,  and  his  orig- 
inal obligation  to  B  is  at  an  end.  By  the  civil  law,  any  new 
contract  entered  into  for  the  purpose  and  with  the  effect  of  dis- 
solving an  existing  contract  was  regarded  as  a  novation,  and  in 
the  above  case  the  civil  law  would  recognize  two  sorts  of  con- 
tracts of  novation  ;  the  contract  by  which  A  is  discharged  from 
his  liability  to  B  by  contracting  a  new  obligation  to  C,  and  the 
novation  by  which  B  would  be  discharged  from  his  obligation 
to  C  by  procuring  A  as  a  new  debtor,  Tliis  distinction  has  not 
been  preserved  in  the  common  law,  and  the  rights  and  obliga- 
tions of  the  parties  in  both  cases  are  governed  by  the  same  rule. 

A  leading  English  case  on  this  subject  is  Tatlock  v.  Har- 
ris. (/)     It  will  be  seen,  from  the  statement  of  the  cases  in  'the 

(ss)  Part.  3,  eh.  2,  art.  1.  the  defendant  alone,  in  lavorof  a  fictitious 

(t)  3  T.  U.  174.     In  this  case  it  was  dc-  person,  (which  was  known  to  all  parties 

fennined   that  where  a   hill  of  exchange  concerned   in  drawin;,'  the   hill,)  and   the 

was  drawn  hv  the  defendant  and  others  on  defendant   received  the  value  of  it  from 


VOL.  I. 


17  [l'«>3] 


188- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


note,  that  the  principle  deducible  from  them  is,  that  if  A  owes 

B,  and  B  owes  C,  and  it  is  agreed  by  these  three  parties  that  A 
shall  pay  this  debt  to  C,  and  A  is  by  this  agreement  discharged 
from  his  debt  to  B,  and  B  is  also  discharged  from  his  debt  to 

C,  then  there  is  an  obligation  created  from  A  to  C,  and  C  may 
bring  an  action  against  A  in  his  own  name.  (U) 

This  would  certainly  seem  to  be  in  contradiction  or  exception 


the  second  indorser,  a  bond  fide  holder  for 
vaUxable  consideration  might  I'ecover  the 
amount  of  it  in  an  action  against  tlie  ac- 
ceptor for  money  paid,  or  money  had  and 
received ;  and  Bull'-r,  J.,  puts  this  case  : 
"  Suppose  A  owes  B  £100,  and  B  owes  C 
£100,  and  the  three  meet,  and  it  is  agreed 
between  them  that  A  shall  ])ay  C  the 
.£100,  B's  debt  is  extinguished,  and  C. 
may  recover  that  sum  against  A."  — So  in 
Wilson  V.  Coupland,  5  Barn.  &  Aid.  228, 
where  the  plaintiffs  were  creditors  and  the 
defendants  were  debtors  to  the  tirm  of 
"  T.  &  Co.,"  and  by  consent  of  all  parties, 
an  arrangement  was  made  that  the  de- 
fendants should  pay  to  the  plaintitFs  the 
debt  due  from  them  to  "  T.  &  Co.,"  it 
was  held,  that  as  the  demand  of  "  T.  & 
Co.,"  on  the  defendants  was  for  money 
had  and  received,  the  plaintifl's  might  re- 
cover against  the  defendants  on  a  count 
for  money  had  and  received.  Best,  J., 
saying,  "  A  chose  in  action  is  not  assigna- 
ble without  the  consent  of  all  parties. 
But  here  all  parties  have  assented,  and 
from  the  moment  of  the  assent  of  the  de- 
fendants it  seems  to  me  that  the  sum  due 
from  the  defendants  to  '  T.  &  Co.'  be- 
came money  had  and  received  to  the  use 
of  the  plaintiffs."  The  case  of  Heaton  v. 
Angler,  7  New  Hamp.  397,  furnishes  an 
excellent  illustration  of  this  principle. 
That  was  an  action  of  assumpsit  for  a 
wagon  sold  and  delivered.  The  defend- 
ant, having  bought  the  wagon  of  the 
plaintiff  at  auction,  sold  it  immediately 
afterwards  on  the  same  day  to  one  John 
Chase.  Chase  and  the  defendant  then 
went  to  the  plaintiff,  and  Chase  agreed  to 
pay  the  price  of  the  wagon  to  the  plaintiff 
for  the  defendant,  and  the  plaintiti'  agreed 
to  take  Chase  as  paymaster.  Held,  that 
the  debt  due  from  the  defendant  to  the 
plaintiff  was  extinguished.  Green,  J.,  hav- 
ing cited  the  case  put  by  BuUer  in  Tat- 
lock  r.  Harris,  said  :  "  The  case  put  by 
BuUer  is  the  very  case  now  before  us.  Hea- 
ton, Angler,  and  Chase  being  together,  it 
was  agreed  between  them  that  the  plaintiff 

[194] 


should  take  Chase  as  his  debtor  for  the 
sum  due  from  the  defendant.  The  debt 
due  to  the  plaintiff  from  the  defendant 
was  thus  extinguished.  It  was  an  accord 
executed.  And  Chase,  b}'  assuming  the 
debt  due  to  the  plaintiff,  must  be  consid- 
ered as  having  paid  tliat  amount  to  the 
defendant,  as  part  of  the  price  he  was  to 
pay  the  defendant  for  the  wagon."  See 
also  Thompson  v.  Percival,  5  Barn.  &  Ad. 
925,  3  N.  &  M.  171.  —  And  in  such  case 
the  defendant's  iradertaking  is  not  to  pay 
the  debt  of  a  third  person  within  the 
meaning  of  the  statute  of  frauds.  Bird  v. 
Gammon,  3  Bing.  N.  C.  883 ;  Mcert  v. 
Moessard,  1  Moore  &  Payne,  8  ;  Arnold 
V.  Lvman,  17  Mass.  400;  French  r. 
French,  2  M.  &  Or.  644,  3  Scott,  N.  R. 
125  ;  Blunt  v.  Boyd,  3  Barb.  209. 

(it)  So  if  in  such  case  the  promise  of 
A  to  pa)'  C  is  conditional,  as  to  pay  what- 
ever may  hei-eafter  be  found  due  from  A 
to  B,  and  after  such  amount  is  ascertained, 
but  before  it  is  paid,B  becomes  bankrupt, 
still  C  may  sue  A  for  the  amount  of  A's 
de1>t  to  B.  Crowfoot  v.  Gurncy,  9  Bing. 
372.  See  also  Hodgson  r.  Anderson,  3  B. 
&  C.  842.  —  It  is  to  be  borne  in  mind  that 
in  order  to  constitute  an  assignment  of  a 
debt  or  a  novation,  so  as  to  enable  the 
transferree'  to  bring  an  action  in  his  own 
name  in  a  court  of  laiv,  the  assent  of  the 
debtor  to  the  agreed  transfer  is  absolutely 
essential,  and  there  must  be  a  promise 
founded  on  sufficient  consideration  to 
pay  it  to  the  transferree.  In  equity, 
however,  it  is  otherwise,  and  there  need 
be  no  promise  by  the  debtor  to  the  as- 
signee in  order  to  entitle  liiin  to  sue  in  his 
own  name.  Lord  Eldon  in  Ex  parte 
South,  3  Swanst.  392 ;  Tibbits  v.  George, 
5  Ad.  &E11.  115,  116;  Robbins  t-.  Bacon, 
3  Greenl.  R.  (2d  ed.)  346,  and  note; 
Blin  V.  Pierce,  20  Verm.  25  ;  L'Estrange 
V.  L'Estrange,  1  E.  L.  &  E.  153,  and 
note  ;  Van  Buskirk  v.  Hartford  Fire  Ins. 
Co.  14  Conn.  141  ;  Mandeville  v.  Welch, 
5  Wheaton,  277;  Gibson  v.  Cooke,  20 
Pick.  15. 


CH.  XIII.] 


NOVATION. 


»189 


to  the  ancient  rule,  that  a  personal  contract  cannot  be  assigned 
so  as  to  give  the  assignee  a  right  of  action  in  his  own  name. 
But  it  is  not  so  much  an  exception  as  a  different  thing.  It  is 
the  case  of  a  new  contract  formed  and  a  former  contract  dis- 
solvpd.  And  the  general  principles  in  relation  io  consideration 
attach  to  the  whole  transaction,  (w)  Thus,  to  *give  to  the  trans- 
action its  full  legal  efficacy,  the  original  liabilities  must  be  ex- 
tinguished. For  if  the  debt  from  A  to  B  be  not  discharged  by 
A's  promise  to  pay  it  to  C,  then  there  is  no  consideration  for 
this  promise,  and  no  action  can  be  maintained  upon  it;  [v)  but 


(»)  Thus  in  order  that  an  assignment 
of  a  chose  in  action  sh(juld  he  valid 
a<j^ainst  the  creditors  of  tlie  assi^^nor,  it 
must  lie  lioiia  Jide  and  upon  adequate  con- 
sideration. Langley  v.  Berry,  14  New 
Hani|).  82;  Giddinps  v.  Coleman,  12 
New  IIani|i.  153.  The  assignment,  how- 
ever, need  not,  althtuigh  in  writing,  ex- 
press to  l)C  for  value  received.  Johnson 
V.  Thayer,  17  Maine,  401  ;  Legro  v.  Sta- 
ples, 16  Maine,  252;  Adams  v.  Kohin- 
son,  1  rick.  461.  It  is  sufficient  if  it  be 
BO  in  jioint  of  fact ;  and  tiiis  must  he  proved 
aliuiiih  than  from  the  face  of  the  paper. 
Langjiv  r.  IJerrv,  sujini. 

(r)  Cuxon  r.  'Cha.Uey,  3  B.  &  C.  591  ; 
Buttcrlield  r.  Hartshorn,  7  New  Ham]). 
.'J45.  This  was  an  action  of  assumpsit 
for  money  luid  and  n'ceived.  The  plain- 
tiff held  a  claim  against  the  estate  of  a 
j)erson  deceased.  The  executor  of  the 
estate  .sold  a  farm  belonging  thereto  to  the 
defendant,  and  left  in  the  defendant's 
hands  a  portion  of  the  purchase-money  to 
pay  the  plaintiff  and  oilier  creditors  their 
demands  against  the  estate,  wliich  the 
defendant  promised  the  executor  to  pay. 
Tiii.i  action  was  lirought  to  recover  the 
amount  of  the  plaintitfs  deman<l.  J/flil, 
that  he  could  not  recover.  Iji/iiiiii,  J., 
"The  ])rincipal  question  in  this  case  is, 
whether  the  plaintitf  can  avail  himself  of 
the  jiromise  made  by  the  defendant  to  the 
executor  —  he  ni'ver  having  a;;reed  to  ac- 
cept the  defendant  as  liis  debtor,  nor 
having  made  any  demand  of  him  for  the 
money  prior  to  the  commencement  of  this 
suit In  cases  of  this  kiml,  a  eon- 
tract,  in  order  to  be  bindin;r,  must  be 
mutual  to  all  coneenied  ;  and  until  it  is 
(•onqileted  by  the  assent  of  ail  intciT'sted 
it  is  liable  to  be  defeated,  and  the  money 
dejiosited  countermanded.  It  seems,  also, 
to  be  dear,  that   no  contract  of  the   kind 


licre  attempted  to  be  entered  into  can  be 
made,  without  an  entire  change  of  the 
original  rights  and  liabilities  of  the  parties 
to  it.  There  is  to  be  a  deposit  of  money 
for  the  payment  of  a  prior  debt,  an  agree- 
ment to  hold  the  money  for  this  jiurpose, 
and  an  agreement  on  the  jiart  of  a  third 
person  to  accejit  it  in  compliance  with  this 
arrangement.  It  is  made  through  the 
agency  of  three  individuals,  for  the  pur- 
])ose  of  ))ayment ;  and  it  can  have  no  other 
elfect  than  to  extinguish  the  original  debt, 
and  create  a  new  liability  of  debtor  and 
creditor  betwixt  the  person  holding  the 
money  and  the  individual  who  is  to  receive 
it.  On  any  other  su[>position  there  would 
be  a  duplicate  liability  for  the  same  debt ; 
and  the  deposit,  instead  of  being  a  pay- 
ment, would  be  a  mere  collateral  security, 
which  is  totally  ditierent  from  the  avowed 
object  of  the  parties.  To  entitle  the  plain- 
tiff' to  recover,  there  must  be  an  extin- 
guishment of  the  original  debt  ;  and  it  is 
(liiestionable  whether,  in  cases  of  this  kind, 
any  thing  can  operate  as  an  extinguish- 
ment of  the  orifiinal  debt,  but  jiayment, 
or  an  express  agreement  of  tht^  creditor 
to  take  another  person  as  his  debtor  in 
discharge  of  the  original  claim."  See 
also  Warren  r.  Batt  helder,  15  N.  H.  129. 
—  Wharton  *.  Walker,  4  B.  &  C.  163. 
In  this  case  A  being  indebted  to  B,  gave 
him  an  order  upon  C,  who  was  A's  ten- 
ant, to  pay  B  the  amount  that  should  be 
due  from  C  to  A,  from  the  next  rent.  B 
sent  the  order  to  the  tenant  C,  but  had 
not  any  direct  communication  with  him 
upon  the  subject.  At  the  next  rent-day 
C  piodiu-ed  the  order  to  A,  and  promised 
him  to  pay  the  amount  to  B,  and  upon  re- 
ceiving the  dirterence  between  the  amount 
of  the  order  and  the  whole  rent  then  due,  A 
gave  C  a  recei])t  for  the  whole.  B.  after- 
wards sued  C  to  recover  the  amount  of  the 

[lUo] 


190* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


if  this  liability  be  discharged,  *then  it  is  a  sufficient  considera- 
tion ;  and  if  at  the  same  time  C  gives  up  his  claim  on  B  as  the 
ground  on  which  B  orders  A  to  pay  C,  then  the  consideration 
for  which  A  promises  to  pay  C  may  be  considered  as  moving 
from  C.  An  order  addressed  by  a  creditor  to  his  debtor,  direct- 
ing him  to  pay  the  debt  to  some  one  to  whom  the  creditor  is 
indebted,  operates  as  a  substitution  of  the  new  debt  for  the  old 
one,  when  it  is  presented  to  the  debtor,  and  assented  to  by  him, 
and  not  before ;  and  also  provided  this  third  party  gives  up  his 
original  claim  against  the  first  creditor,  and  not  otherwise,  (w) 
The  mutual  assent  of  all  the  three  parties  is  necessary  to  make 
it  an  effectual  novation,  or  substitution ;  for  so  long  as  the 
debtor  has  made  no  promise,  or  come  under  no  obligation  to  the 
party  in  whose  favor  the  order  is  given,  it  is  a  mere  mandate, 
which  the  creditor  may  revoke  at  his  pleasure,  (x)  And  if  the 
the  person  in  whose  favor  the  order  is  drawn  has  in  considera- 
tion thereof  discharged  the  debt  due  to  him,  and  so  may  hold 
this  order  as  against  the  creditor  giving  it,  still  it  is  not  a 
novation.  He  must  sue  in  the  name  of  the  party  drawing  the 
order,  unless  the  person  on  whom  it  is  made  has  agreed  with 


■  order,  in  an  action  for  money  had  and 
received,  and  upon  an  account  stated.  It 
was  held  by  tlie  whole  Court  of  King's 
Bench,  that  he  could  not  recover  on 
either  count,  because  the  debt  from  A  to 
B  was  not  extinguished,  Ba(/lei/,  J.,  say- 
ing :  "  If,  by  an  agreement  between  the 
three  parties,  the  plaintiff  had  undertaken 
to  look  to  the  defendant,  and  not  to  his 
original  debtor,  that  would  have  been 
binding,  and  the  plaintilfmight  have  main- 
tained an  action  on  such  agreement ;  but 
in  order  to  give  him  that  right  of  action 
there  must  be  an  extinguishment  of  the 
intermediate  debt.  No  such  bargain  was 
made  between  the  parties  in  this  case. 
Upon  the  defendant's  refusing  to  pay  the 
plaintiff,  the  latter  might  still  sue  A,  and 
this  brings  the  case  within  Cuxon  v. 
■Chadley,  3  B.  &  C.  591."  See  also, 
Prench  v.  French,  2  M.  &,  Gr.  644,  3 
•  Scott,  N.  R.  125  ;  Thomas  v.  Schillibeer, 
1  Mees.  &  Welsb.  124  ;  Moore  v.  Hill,  2 
Peake,  10;  Maxwell  r.  Jameson,  2  B.  & 
Aid.  55  ;  Short  v.  City  of  New  Orleans, 
4  Louis.  xVnn.  281 ;  McKinney  v.  Alvis, 
14  111.  34. 

[196] 


(to)  Ford  V.  Adams,  2  Barbour,  Sup. 
Ct.  349.  Where  a  declaration  alleged 
that  one  J.  S.,  being  indebted  to  the  plain- 
tiff', made  and  delivered  to  him  his  order 
in  writing,  directed  to  the  defendant,  to 
deliver  to  the  plaintiff"  or  bearer  a  certain 
quantity  of  wood  ;  and  that  the  defendant, 
being  indebted  to  J.  S.,  in  consideration 
thereof  accepted  the  said  order,  and  jjrom- 
ised  to  deliver  the  wood,  according  to  the 
tenor  and  effect  of  such  order  and  the  ac- 
ceptance thei-eof ;  Held,  on  demurrer,  that 
the  defendant's  acceptance  of  the  order, 
and  his  promise  to  deliver  the  wood,  were 
without  any  consideration,  and  therefore 
void  ;  and  that  the  plaintiff"  could  not 
maintain  an  action  against  him  thereon. 

(.r)  Owen  v.  Bowen,  4  Carr.  &  I'ayne, 
93.  In  this  case  A  gave  a  sum  of  money 
into  the  hands  of  B,  to  pay  to  C,  but  B 
had  not  paid  it  over.  It  was  held,  that  if 
C  had  not  consented  to  receive  this  sum 
of  B,  A  might  countermand  the  authority 
and  recover  it  back  from  B.  See  also, 
Gibson  v.  Miuet,  1  Carr.  &  Payne, 
247. 


CII.   XIII.] 


NOVATION. 


191 


him  in  whose  favor  it  is  made  to  comply  with  the  order,  (y/) 
*And  if  the  action  is  brought  in  the  name  of  the  original  credi- 
tor, it  is  subject  to  the  equitable  defences  which  may  exist  be- 
tween him  and  the  debtor.  But  after  such  assent  or  agreement 
is  given,  then  the  order  is  irrevocable,  and  neither  party  can 
recede  from  the  agreement,  (z)  The  old  debt  is  entirely  dis- 
charged. 

It  will  be  seen,  therefore,  that  in  such  case  the  debtor  does 
not  undertake  to  pay  the  debt  of  another,  but  contracts  an  en- 
tirely new  debt  of  his  own,  the  consideration  of  which  is  the 
absolute  discharge  of  the  old  debt.  Consequently  this  new 
promise  is  not  within  the  provisions  of  the  Statute  of  Frauds, 
relating  to  a  promise  to  pay  the  debt  of  another,  {a) 

There  is  one  point  upon  which  some  uncertainty  exists  as  to 
the  principles  of  the  civil  law  concerning  novation,  but  upon 
which  the  rule  of  the  common  law  is  clear.  If  the  order  be  for' 
less  than  the  whole  debt  due  from  him  on  whom  it  is  made  to 
the  maker,  it  seems  not  to  be  entirely  agreed  upon  by  civilians 
whether  such  an  order,  assented  to  and  complied  with,  would 
or  would  not  discharge  the  whole  of  the  original  debt.  But 
there  can  be  no  doubt  that  by  the  common  law  it  would  be  a 
discharge  only  pro  lanlo,  unless  there  were  a  distinct  agreement 
and  a  valid  promise  that  it  should  be  taken  for  the  whole,  {b) 


{>/)  Tliea;;recment  t)f  rt//|):irtics  is  al).so- 
luti-ly  cssfiitiul  to  compk'te  this  contract, 
Jiiul  unless  tliere  is  a  promise  by  tlie 
(ic'l)tur  to  pay  the  new  stihstitiited  creditor 
the  amount  tor  wiiich  lie  was  orii^inally 
lialili'  to  his  own  creditor,  tlicre  is  no  priv- 
ity of  contract,  and  an  action  at  hiw  will 
not  lie  liy  the  translerree  in  his  own  name. 
Williams  r.  Kvcrett,  14  East,  582;  Man- 
deville  r.  Welch,  5  Wheaton,  277  ;  Trus- 
tees of"  ili>^-ard  Colle;x<'  ''•  I'ace,  15  Geo. 
486;  Ciihson  r.  Cooke,  20  Pick.  18.  Sec 
Wliarton  v.  Walker,  4  15.  &  ('.  lO.'J  ;  Scott 
V.  I'unhcr,  3  Mcr.  G52  ;  Wcdiakc  r.  Hur- 
ley, 1  Cro.  &.Jer.  83;  Haron  r.  linshand, 
4 'iJarn.  &,  Ad.  614.  J3ut  nee  Hall  r. 
Miirston,  17  Mass.  575.  —  And  the  credi- 
tor nuist  also  consent  to  take  the  new 
debtor  as  liis  sole  security,  ami  to  extin- 
frnish  his  claim  a;:ainst  his  Curnier  debtor. 
Bnttertifld  v.  Hartshorn. 7  New  ll.iinp.  345. 

{.)  Sec   Aiuslic  v.  Boynton,   2    Barb. 

17* 


Sup.  Ct.  258;  Ilodgcs  v.  Ea.stman,  12 
Verm.  358;  Surtees  c.  Huhl)ard,  4  Ksp. 
203.  In  this  case  Lord  JilhnlHiroii^ih  ob- 
served :  "  Choses  in  action  generally  are 
not  assignable.  Where  a  party  entitled 
to  money  assigns  over  his  inienst  to  an- 
oilier,  the  mere  act  of  assigiinu'iit  does  not 
entitle  the  assignee  to  maintain  an  action 
for  it.  The  debtor  may  refuse  his  assent ; 
he  may  have  an  account  against  the  assign- 
or, and  wish  to  have  his  set-off ;  but  if  there 
is  any  tiling  like  an  assent  on  the  part 
of  the  holiler  of  the  money,  in  that  case 
1  think  that  this,  [assuin])sit  for  money 
had  and  received,]  which  is  an  eijuita- 
blc  action,  is  maintainable."  Beecker  v. 
B-ecker,  ^  Johns.  103;  Hollv  )•.  Uatli- 
bone,  8  id.  149  ;  Norris  i:  Half,  IS  Maine, 
332  ;  Clement  v.  Clement,  8  N.  H.  4  72. 

(r/)  Bird  r.  Gammon,  3  Miuir.  N.  C. 
883  ;   Blunt  r.  Bovd,  3  Barb.  2(t9. 

(/()   Heathcote    i\    Croukshanks,    2    T. 

[l'J7J 


191- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


R.  27  ;  Fitch  v.  Sutton,  5  East,  230 ; 
Pinnel's  case,  5  Co.  II.  117;  Cumber  v. 
Wane,  1  Strange,  426.  See  also  Sibree 
V.  Tripp,  15  M.  &  W.  23,  where  the 
case  of  Cumber  v.  Wane  was  much  dis- 
cussed, and  somewhat  qualified.  —  Neitlier 
will  an  order  or  draft  for  part  only  of  a 
debt  due  from  the  drawee  to  the  drawer, 
without  the  consent  of  the  drawee,  amount 

[198] 


to  an  assignment  of  any  portion  of  the 
debt  or  liability,  and  does  not  authorize 
the  institution  of  a  suit  in  the  name  of  the 
assignee  for  the  whole  or  any  part  of  the 
sum  due  from  the  debtor.  Gibson  v. 
Cooke,  20. Pick.  15  ;  Mandevillew.  Welch, 
5  Wheaton,  277  ;  Robbins  v.  Bacon,  3 
Greenl.  346,  (2d  ed.)  and  note. 


CH.  XIV.] 


ASSIGNMENT. 


192 


CHAPTER     XIV. 

NEW   PARTIES    BY   ASSIGNMENT. 

Sect.  I.  —  Of  Assignments  of  Glioses  in  Action. 

Any  right  under  a  contract,  either  express  or  implied,  which 
has  not  been  reduced  to  possession,  is  a  chose  in  action ;  (c)  and 
is  so  called  because  it  can  be  enforced  against  an  adverse  party 
only  by  an  action  at  law.  At  common  law,  the  transfer  of  this 
chose  in  action  was  entirely  forbidden.  The  reason  was  this. 
A  chose  in  action,  by  its  very  nature  and  definition,  is  a  right 
which  cannot  be  enforced  against  a  reluctant  party,  excepting 
by  an  action,  or  suit  at  law.  And  if  this  be  transferred,  the 
only  thing  which  passes  is  a  right  to  go  to  law ;  and  so  much 
did  the  ancient  law  abhor  litigation,  that  such  transfers  were 
wholly  prohibited,  {d) 


(r)  2  Bl.  Com.  396,  397;  1  Dane's 
Abr.  92.  Chosfis  in  iirtioti  arc  not  limited, 
however,  to  rights  arisinj;  luuk-r  contracts. 
"  lihickstonc  .seems  to  liavc  entertained  the 
opinion,  that  the  term  chose,  or  tiling  in 
action,  only  included  delits  due,  or  dam- 
ages recovcralilc  for  the  hreacli  of  a  con- 
tract, express  or  iinjilicd.  I5ut  this  delini- 
tion  is  too  limited.  The  term  chose  in 
arlioit  is  used  in  contradistinction  to  chose 
in  possession.  It  includes  all  rights  to  per- 
sonal jiroperty  not  in  possession  which  may 
be  enforced  l)y  action  ;  and  it  makes  no 
dirt'erence  whether  the  owner  has  lieeii  de- 
prived of  his  j>ro|icrty  by  the  tortious  act 
of  another,  or  by  his  breach  of  a  contract, 
cxj)re.ss  or  implied.  In  both  cases,  the 
debt  or  tlamages  of  the  owner  is  a  '  thing 
in  action.'  "  I'er  Branson,  C  J.,  Gillet  r. 
Fairchild,  4  Dcnio,  80.  It  was  accord- 
ingly held  in  that  case  that  a  receiver  of 
an  insolvent  corjioration,  who  was  em- 
powered by  law  to  sue  for  and  recover 
"  all  the  estate,  debts,  and  t/iinf/s  in  artion," 
belonging  to  the  corporation,  might  main- 


tain trorer  for  the  conversion  of  the  per- 
sonal ])roperty  of  the  corporation  before 
the  ])laintift"  was  appointed  receiver.  See 
aI.>o,  Hall  r.  Robinson,  2  Conist.  293. 

(</)  "  It  is  to  be  observed,  that  by  the 
ancient  maxim  of  the  common  law,  a  right 
of  entry  or  a  chose  in  action  cannot  be 
granted  or  transferred  to  a  stranger,  and 
thereby  is  avoided  great  oppression,  in- 
jury, and  injustice."  Co.  Litt.  266,  a. 
So  again  in  Lamjiet's  case,  10  Co.  R.  48, 
Lord  Colce  says  :  "  The  great  wisdom  and 
])olicv  of  the  sages  and  founders  of  our 
law  have  provided,  that  no  ))0ssibility, 
right,  title,  nor  (him/  in  action,  .>;hall  l>e 
granted  or  assigned  to  strangers,  for  that 
would  be  the  occasion  of  midtiplying  of 
contentions  and  suits,  of  great  op])ressioii 
of  the  people,  and  chiefly  of  terre-tenants, 
and  the  subversion  of  the  due  and  e(]ual 
execution  of  justice."  At  what  time  this 
doctrine,  which,  it  is  said,  liad  relation 
originally  only  to  landed  estates,  was  (irst 
adjudged  to  be  equally  ap|)licablc  to  the 
assignment  of  a  mere  personal  chattel  not 

[199] 


193-*194 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Courts  of  equity  have,  for  a  long  tiine*,  disregarded  this 
rule;  (e)  and  they  permit  the  assignee  of  a  chose  in  action  to 
sustain  an  action  in  his  own  name.  (/)      Such  an  *assignment 


in  possessio)},  it  is  not  easy  to  decide ;  it 
seems,  Tiowever,  to  have  l)een  so  settled  at 
a  very  early  period  of  onr  history,  as  the 
works  of  our  oldest  text-writers,  and  the 
reports  contain  numberless  observations 
and  cases  on  the  subject.  Chitty  &  Hulme 
on  Bills,  p.  6.  —  But  it  is  to  be  observed 
that  the  king  was  always  an  exception  to 
this  rule,  for  he  mif;ht  always  either  onmt 
or  receive  a  possibility  or  cliose  in  action 
by  assignment.  Breverton's  case,  Dyer, 
30,  b  ;  Co.  Litt.  2.32,  b,  note  1.  And  it 
seems  that  in  this  country  the  same  excep- 
tion exists  in  respect  to  the  government  of 
■the  United  States.  United  States  v.  Bu- 
ford,  3  Pet.  30. 

(e)  Anon.  Freem.  Ch.  Rep.  145  ;  Wright 
V.  Wriglit,  I  Ves.  Sen.  409  ;  Warmstrey 
V.  Tanficld,  1  Ch:  Rep.  29  ;  Row  v.  Daw- 
son, 1  Ves.  Sen.  331  ;  Frosserr.  Edmonds, 
1  Y.  &  Coll.  481  ;  Hinkle  v.  Wander,  17 
How.  S.  C.  3:>3  ;  Bigelow  v.  Willson,  1 
Pick.  485,  493  ;  Dix  v'.  Cobb,  4  Mass.  508, 
511  ;  Haskell  r.  Hilton,  30  Maine,  419; 
Miller  v.  Whittier,  32  id.  203  ;  Moor  v. 
Veazie,  id.  342  ;  Ex  parte  Foster,  2  Story, 

(_/")  This,  however,  is  to  be  taken  with 
some  qualification.  It  is  not  to  be  under- 
stood tliat  the  assignee  of  a  chose  in  action 
may  always  enforce  his  claim  in  a  court  of 
equity  ;  but  simply  that  he  may  proceed 
lia  e(iuity  in  his  own  name,  whenever  he  is 
entitl  ■(!  to  go  into  a  court  of  equity  at  all. 
It  seems  to  be  well  settled,  however,  that 
the  mere  fact  of  one's  being  the  assignee  of 
a  chose  in  action  will  not  entitle  him  to  go 
into  a  court  of  equity  at  all.  His  remedy 
is  generally  complete  at  law  by  a  suit  in 
the  name  of  the  assignor,  and  to  that  he 
will  be  left.  It  is  only  when  the  legal 
iremedy  is  in  some  manner  obstructed  or 
rendered  insuflicient  that  a  court  of  ecjuity 
will  interpose.  The  law  was  thus  laid 
down  by  Lord  Uarda-icke,  in  Motteux  v. 
The  London  Assurance  Co.  1  Atk.  545, 
547  ;  by  Lord  King,  in  Dhegetoft  v.  The 
London  Assurance  Co.,  Mosely,  83  ;  and 
by  Sir  Lancelot  Shadwell,  in  Hammond  v. 
Messenger,  9  Sim.  327,  332.  In  this  last 
case  the  learned  V  ice-ChancL-llor  said : 
"  If  this  case  were  stripped  of  all  special 
circumstances,  it  would  be,  simply,  a  bill 
filed  by  a  plaiutitf  who  had  obtained  from 
cenain  persons  to  whom  a  debt  was  due  a 

[200] 


right  to  sue  in  their  names  for  tlie  debt. 
It  is  quite  new  to  me,  that,  in  such  a  sim- 
ple case  as  that,  this  court  allows,  in  the 
first  instance,  a  liill  to  be  filed  against  the 
debtor,  by  the  person  who  hiR  become  the 
assignee  of  the  debt.  I  admit  that,  if 
special  circumstances  are  stated,  and  it  is 
represented  that,  notwithstanding  the  right 
which  the  party  has  obtained  to  sue  in  the 
name  of  the  creditor,  the  creditor  will  in- 
terfere and  prevent  the  exercise  of  that 
I'ight,  this  court  will  interpose  for  the  pur- 
pose of  preventing  that  species  of  wrong 
being  done  ;  and,  if  the  creditor  will  not 
allow  the  matter  to  be  tried  at  law  in  his 
name,  this  court  has  a  jurisdiction,  in  the 
lirst  instance,  to  compel  the  debtor  to  pay 
the  debt  to  tlie  jtlaintiff;  especially  in  a 
case  where  tiie  act  done  by  the  creditor  is 
done  in  collusion  with  the  debtor.  If  bills 
of  this  kind  were  allowable,  it  is  obvions 
that  they  would  be  pretty  frequent ;  but  I 
never  remember  any  instance  of  sucM  a 
bill  as  this  being  filed,  unaccompanied  by 
special  circumstances."  See  also,  Keys 
V.  Williams,  3  Y.  &  Coll.  462,  466 ;  and 
Rose  V.  Clarke,  1  Y.  &  Col.  Ch.  Cas.  534, 
548.  The  same  doctrine  has  been  dis- 
tinctly held  also  in  New  York  ;  Carter  v. 
United  Ins.  Co.  1  Johns.  Ch.  463  ;  Ontario 
Bank  v.  Mumford,  2  Barb.  Ch.  596.  And 
in  Maryland  ;  Cover  v.  Christie,  2  Harris 
&  Johns.  67  ;  Adair  v.  Winchester,  7  Gill 
&  Johns.  1 14.  And  in  Tennessee ;  Smiley 
V.  Bell,  Martin  &  Yerger,  378.  And  in 
Virginia  ;  Moseley  v.  Boush,  4  Ran.  392. 
Thwe  is  no  conflict  between  the  case  of 
Moseley  v.  Boush,  and  the  case  of  Winn 
V.  Bowles,  6  Munf.  23,  an  earlier  Virginia 
case.  The  latter  case  simply  decided  that 
the  statute  of  Virginia,  authorizing  the 
assignee  of  a  chose  in  action  to  sue  in  his 
own  name,  did  not  take  from  the  Court  of 
Chancery  the  jurisdiction  which  it  formerly 
had.  There  seems  to  have  been  sufficient 
in  this  case  to  give  a  court  of  equity  juris- 
diction consistently  with  the  rule  that  we 
have  laid  down.  Mr.  Justice  Story,  in- 
deed, in  his  Commentaries  on  Equity 
Jurisprudence,  expresses  a  somewhat  dif- 
ferent view  ujjon  this  subject.  After  stat- 
ing the  law  as  laid  down  in  Hammond  v. 
Messenger,  cited  above,  he  says,  §  1057  a  : 
"  This  doctrine  is  a])parently  new,  at  least 
in   the   broad  extent  in  which  it  is  laid 


CH.  XIV.] 


ASSIGNMENT. 


-194 


is  regarded  in  equity  as  a  declaration  of  trust,  and  an  authori- 
zation to  the  assignee  to  reduce  the  interest  to  possession,  (g-) 
But  if  the  assignee  be  a  mere  nominal  holder,  without  interest 
in  the  thing  assigned,  then  the  suit  should  be  brought  in  the 
name  of  the  party  in  interest.  (//)  And  there  are  assignments 
of  choses  in  action  which  will  not  be  sustained  either  in  equity 
or  at  law,  as  being  against  |)ublic  policy.  As  by  an  odicer  in 
the  army  or  navy,  of  his  pay,  (i)  or  his  commission,  (j)  or  the 
salaries  of  judges,  {k)  or  of  a  mere  right  to  file  a  bill  in  ecjuity 
for  a  fraud,  (/)  or  a  right  of  action  for  a  tort,  (m)     But  after  the 


down ;  and  does  not  socrn  to  have  been 
generally  adopted  in  Anieriea.  On  the 
contrary,  the  more  <reiieral  prineiple  cs- 
tahlisluil  in  this  country  .seeni.s  to  he,  that, 
wherever  an  assignee  has  an  ciiiiitahle 
right  or  interest  in  a  deht,  or  other  prop- 
erty, (ns  tiie  assignee  of  a  debt  eertainly 
lias,)  there  a  court  of  ecjuity  is  the  proper 
forum  to  enforce  it ;  and  he  is  not  tu  be 
driven  to  any  circuity  by  instituting  a  suit 
at  law  in  the  name  of  the  person  who  is 
possesseil  of  the  legal  title."  He  cites  no 
case,  however,  which  appears  to  conflict 
with  llannnond  and  Alessenger,  except 
the  ciL<e  of  Townsend  v.  Carpenter,  1 1 
Ohio,  21.  That  ea.se  <loes  indeed  decide 
that  t!if  iittrr  fact  of  one's  being  an  assi<:nee 
of  a  r/iose  in  uclion  will  entitle  him  to  en- 
force his  claim  in  C(|uity.  The  learned 
judge,  however,  does  not  cite  any  ca.se  in 
support  of  his  position,  and  he  appears 
not  to  have  been  aware  of  the  weight  of 
authority  against  him  ;  fcjr  he  says  he 
knows  of  no  case  except  Moseley  v.  IJoush, 
cited  ab(iv>',  "where  it  has  been  hehl  that 
a  com't  of  law,  ^ving  once  declined  juris- 
diction of  a  particular  subjcct-nuitter,  and 
afterwards  in  an  indirect  manner  enter- 
tained it,  that  a  Court  of  Chancery,  to 
which  it  appropriately  and  originidly  be- 
longed, is  therefore  deprived  of  it."  Tl>e 
ca.se  of  the  Ontario  Hank  v.  Muinford, 
cited  above,  which  wa.s  dcciilcd  since 
Story's  K(|uity  was  ])u!ilis!ied,  contains  a 
thorough  diM'ussion  of  this  sul)ject.  The 
counsel  for  the  ])laintill' relied  upon  Story's 
K(piity,  but  Chancellor  Wahroiih,  having 
cited  with  approbation  the  case  of  Ham- 
mond f.  Mes.senger  and  several  of  the 
other  cases  rcfenvd  to  in  this  note,  n-af- 
firmed  to  its  full  extent  the  doctrine  which 
they  contain.  "  As  a  general  rule,"  says 
he,  "  this  court  will  not  entertain  a  suit 
brought  by  the  assignee  of  a  debt,  or  of  a 


chose  in  action,  wliich  is  a  mere  legal  de- 
mand ;  but  will  leave  him  to  his  remedy 
at  law  by  a  suit  in  the  name  of  the  as- 
signor. Where,  however,  special  circuia- 
stanccs  render  it  necessary  for  the  assignee 
to  come  into  a  court  of  equity  for  relief,  to 
prevent  a  failure  of  justice,  he  will  be  al- 
lowed to  bring  a  suit  here  upon  a  mere 
legal  demand."  Such  must  undoubtedly 
be  considered  the  true  rule  upon  the  sub- 
ject. 

(7)  Co.  Litt.  232,  b,  note  1 ;  Morrison 
V.  Deaderick,  10  Humph.  342. 

(/<)  Field  V.  Maghee,  5  Paige,  539  ; 
Rogers  v.  Traders  Insurance  Co.,  6  Paige, 
583. 

(/)  Stone  V.  Lidderdale,  2  Anst.  533; 
McCarthy  v.  Goold,  1  Ball  &  B.  387  ; 
Davis  V.  Duke  of  Marlborouiih,  1  Swanst. 
74;  Flarty  v.  Odium,  3  T.  ]{.  681; 
GrenfcU  c.  Dean  and  Canons  of  Windsor, 
2  Beav.  544  ;  Jenkins  v.  Hooker,  19  Barb. 
435. 

(j)  CoUver  i'.  Fallon,  Turn.  &  Rus. 
459. 

(/.)  Lord  Kfuynn,  Flarty  )•.  Odium,  3 
T.  K.  681.  But  it  secnis  a  city  ollicer 
nniy  lawfidly  make  an  assignment  of  his 
salary  yet  to  glow  due,  so  as  to  preveut 
its  attachment  upon  the  trustee  process. 
Brackett  i-.  Blake  &  Tr.,  7  Mete.  335. 

(/)  Prosser  v.  Edmonds,  1  Y.  &  Col. 
481  ;  Morrison  v.  Deaderick,  10  Humph. 
342. 

(m)  Gardner  v.  Adams,  12  W^end.  297  ; 
Thurnnm  v.  Wells,  18  Barb.  500;  Cook 
r.  Newman,  8  How.  Pr.  l{e]is.  523.  "  In 
general,  it  nuiy  be  atlirmeii  tinu  mere  per- 
sonal torts,  which  die  with  the  party,  and 
do  not  survive  to  his  persomil  rejjresent- 
ative,  are  not  capable  of  i>assing  by  assign- 
ment ;  and  that  vested  rights  <hI  nut  ami 
in  re,  possibilities  cou|)led  with  an  interest, 
and  claims  growing  out  of  and  adhering 

[201] 


195* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


conversion  of  a  chattel,  the  *owner  may  sell  it  so  as  to  give  the 
purchaser  a  right  to  claim  it  of  the  wrongdoer,  (n) 

Courts  of  law  also  permit  and  protect  assignments  of  choses 
in  action,  to  a  certain  extent,  (o)  If  the  debtor  assent  to  the 
assignment,  and  promise  to  pay  the  assignee,  an  action  may  be 
brought  by  the  assignee  in  his  own  name,  [p)  but  otherwise  he 
must  bring  it  in  the  name  of  the  assignor  ;  {q)  and  this  rule  ap- 
plies to  an  assignment  of  a  negotiable  bill  or  note,  unless  it  be 
indorsed  by  the  assignor,  [qq)      And  the  action  brought  in  the 


to  property,  may  pass  by  assignment." 
iStorij,  J.,  Comegys  v.  Vasse,  I  Pet.  193, 
213. 

(«)  Hall  V.  Robinson,  2  Comst.  293, 
overruling  Gardner  ?'.  Adams,  so  far  as 
the  latter  conflicts  witii  what  is  stated  in 
the  text.  It  will  be  perceived  that  this 
case  furnishes  no  exception  to  the  rule 
that  a  right  of  action  for  a  tort  cannot  be 
assigned.  It  merely  decides  that  the 
owner  of  a  chattel  may  sell  it  and  convey 
a  good  title  to  it,  notwithstanding  it  has 
been  wrongfully  converted,  and  then  the 
vendee  may  demand  it  in  his  own  right ; 
and,  upon  a  refusal  to  deliver  it,  bring  his 
action,  not  for  the  conversion  <lone  to  the 
vendor,  but  for  the  conversion  done  to 
himself  by  such  refusal.  And  see  Andrews 
V.  Bond,  16  Barb.  633  ;  Franklin  v.  Neate, 
13  M.  &  W.  481. 

(o)  BuUer,  J.,  Master  v.  Miller,  4  T.  R. 
320,  340  :  "It  is  true  that  formerly  the 
courts  of  law  did  not  take  notice  of  an 
equity  or  trust ;  for  trusts  are  within  the 
original  jurisdiction  of  a  court  of  equity; 
but  of  late  years  it  has  been  found  produc- 
tive of  great  expense  to  send  the  parties 
to  the  other  side  of  the  Hall ;  wherever 
this  court  have  seen  tliat  the  justice  of  the 
case  has  been  clearly  with  the  plaintiff, 
they  have  not  turned  him  round  upon  this 
objection.  Then  if  this  court  will  take 
notice  of  a  trust,  why  should  they  not  of 
an  equity  1  It  is  certainly  true  that  a  chose 
in  action  cannot  strictly  be  assigned  ;  but 
this  couit  will  take  notice  of  a  trust,  and 
consider  who  is  beneflcially  interested." 
Ashurst,  J.,  Winch  v.  Keelty,  1  T.  R.  619 ; 
Dix  V.  Cobb,  4  Mass.  508;  Welch  v. 
Mandeville,  1  Wheat.  233  ;  Legh  v.  Legh, 
1  B.  &  P.  447  ;  Eastman  v.  Wright,  6 
Pick.  316,  322  ;  Owhigs  v.  Low,  5  Gill  & 
Johns.  134, 145  ;  llickey  v.  Burt,  7  Taunt. 
48  ;  Graham  v.  Grade,  13  Q.  B.  548. 

(y?)  Crocker  v.  Whitney,  10  Mass.  316  ; 

[202] 


Mowry  tJ.  Todd,  12  id.  281;  Barrett  v. 
Union  M.  F.  Ins.  Co.,  7  Cush.  175  ;  Cur- 
rier V.  Hodgdon,  3  N.  H.  82 ;  Morse  v. 
Bellows,  7  id.  549,  565  ;  Moar  v.  Wright, 
1  Verm.  57  ;  Bucklin  v.  Ward,  7  id.  195 ; 
Hodges  V.  Eastman,  12  id.  358  ;  Stiles  v. 
Farrar,  18  id.  444;  Smith  v.  Berry,  18 
Maine,  122  ;  Warren  v.  Wheeler,  21  id. 
484  ;  Barger  v.  Collins,  7  Harr.  &  Johns. 
213,  219;  Clarke  v.  Thompson,  2  R.  I. 
146.  Such  seems  to  be  the  general  ruling 
on  this  subject.  But  such  a  transaction 
would  seem  to  fall  within  the  law  of  no- 
vation ;  and  the  question  would  be  as  to 
the  consideration  on  which  the  promise  of 
the  original  dcl)tor  to  the  assignee  is 
founded.  Probably  it  would  be  held  that 
if  A  holds  the  note  of  B,  payable  to  A, 
and  assigns  this  for  value  to  C,  and  B 
assents  and  promises  to  pay  C,  B  is  by 
such  transfer  released  from  his  promise  to 
A,  and  this  is  a  sufficient  consideration  to 
sustain  his  promise  to  C.  See  Ford  v. 
Adams,  2  Barb.  Sup.  Ct.  349.  In  Tib- 
bits  V.  George,  5  Ad.  &  El.  115,  Lord 
Denman  said ;  "  None  of  the  authorities 
which  have  been  cited  sh(jyv  that  it  is  neces- 
sary that  the  assignment  should  be  in 
writing  in  order  to  pass  an  equitable  in- 
terest, although  in  very  many  of  the  cases 
there  was  a  wiiting;  and  as  to  express 
assent,  it  is  undoubtedly  held  that,  in  order 
to  give  an  action  at  law,  the  debtor  must 
consent  to  the  agreed  transfer  of  the  debt, 
and  that  there  must  be  some  consideration 
for  his  promise  to  pay  it  to  the  ti-ans- 
ferree." 

(q)  Jessel  V.  Williamsburgh  Ins.  Co. 
3  Hill,  88;  Usher  v.  De Wolfe,  13  Mass. 
290;  Coolidge  v.  Ruggle.s,  15  id.  387; 
Skinner  r.  Somes,  14  id.  107;  Palmer  v. 
Merrill,  6  Cush.  282.  See  also,  supra,  n. 
(o). 

{ij(])  Freeman  v.  Peny,  22  Conn.  617. 
Sec  also,  Hedges  u.  Scaly,  9  Barb.  214. 


CH.  XIV.]  ASSIGNMENT.  *196 

name  of  the  assignor  for  the  benefit  of  the  assignee  is  open  to 
all  equitable  defences ;  bat  only  to  those  which  are  equitable. 
That  is,  the  debtor  may  make  all  *defences  which  he  might 
have  made  if  the  suit  were  for  the  benefit  of  the  assignor  as  wpU 
as  in  his  name,  provided  these  defences  rest  upon  honest  trans- 
actions which  took  place  between  the  debtor  and  the  assignor 
before  the  assignment,  or  after  the  assignment  and  before  the 
debtor  had  notice  or  knowledge  of  it.  (r)  And  the  death  of  the 
assignor  will  not  defeat  the  assignment,  but  the  assignee  may 
bring  the  action  in  the  name  of  the  executor  or  administrator  of 
the  deceased,  (s)  But  if  the  assignment  be  in  good  faith  and 
for  valuable  consideration,  although  tife  action  be  brought  in 
the  name  of  the  assignor,  neither  his  release  nor  his  bankruptcy 
will  defeat  it.  (t)  A  debt  due  for  goods  sold  and  delivered,  and 
resting  for  evidence  on  a  book  account,  may  be  so  assigned,  (u) 
or  an  unliquidated  balance  of  accounts,  {/;)  or  a  contingent 
debt,  (iv)  or  a  judgment,  (x)  or  a  bond  ;  but  an  action  on  a  bond 
must.be  in  the  name  of  the  obligee,  although  it  be  made  jiay- 
able  expressly  to  "  assigns."  (y)  And  it  has  been  held  that  a 
grant  of  a  franchise  to  a  town,  as  the  right  of  fishery,  may  be 
the  subject  of  a  legal  assignment  or  release,  and  the  assignee  or 
releasee  may  maintain  an  action  resj:)ecting  it  in  his  own 
name,  (z)  But  a  servant  bound  by  indenture  cannot  be  trans- 
ferred or  assigned  by  the  master  to  another,  because  the  master 
has  only  a  personal  trust,  (a)     The  right  of  a  mortgagor  to  re- 

(r)  Mangles  r.  Dixon,  18  E.  L.  &  E.  Brown  r.  Maine  Bank,  11  id.  153  ;  "Webb 

82;  Bartlott  r.  Pearson,  29  Maine,  9,  15  ;  v.    Steele,    13   N.  II.  230,  230  ;  Diineklec 

Guerry  r.  I'eiVyinan,  6   Oeo.  119;  Wood  r.  Greenfield   Steam   Mill  Co.,  3   Foster, 

r.  I'env,  1   Barb.   114,  131  ;  Coniinereial  245  ;  Anderson  v.  Miller,  7  S.  &  M.  586  ; 

Bank  r.   Colt,   15  id.   50t> ;    Sanborn   v.  Barker  v.   Kellr,  10  id.  184;    Wineh  i'. 

Little,  3  N.  H.   539;  Norton   v.   Kosc,  2  Kcely,  1    T.   R*  619;  Blin  v.  Pieree,  20 

Wash.  233  ;  Munay  r.  I.ylburn,  2  Johns.  Veriii.  25  ;  Blake  ;-.  Buehanan,  22  Verm. 

Ch.  441  ;  IIa(k<-t  v.  Mailin,  8  (Jreenl.  77  ;  548  ;  Parsons  ?•.  Woodward,  2  New  Jcr. 

Greene  r.  Darliufi:,  5   Mason,   201,  214;  196;  Jewett  u.  Doekrav,  34  Me.  45. 

Comstoek  r.  Farniiin,  2  Mass.  96  ;  Wood  (k)   ])ix  !•.  Cobb,  4  >lass.  .508. 

r.  Partridfre,  1 1  id.  488  ;  MeJilton  r.  Love,  (c)   Croeker  v.  Whitney,  10  Alass.  316. 

13  III.  486  ;  Thompson  v.  Emery,  7  Eost.  («•)   Cutts  v.  Perkins,  12  Mass.  206. 

269.     Sec  Patterson  v.  Atherton,  3  Mc-  (r)  Brown  ?-.  Maine  Bank,   11    Mass. 

Lean,  147,  in  wliieh  a  difl'erent   doetrine  153  ;  Dunn  v.  Snell,  15  id.  481. 

seems  to  bo  held,  but  on  very  insuflieient  (*/)  Skinner  r.  Somes,  14  Mass.  107. 

grounds.                                     "  (c)   Wateitown  c  White,  13  >iass.  477. 

(s)   Dawes   v.  Bovlston,  9   Mass.  337,  (n)  Hall    r.    Gardner,    1     Ma.<s.     172; 

346;  (^itts  r.  Perkins,  12  id.  206.  210.  Davis  v.  Cobum,  8  id.  299  ;  Clement  v. 

(t)  Dix  V.  Cobb,  4  Mass.   .508,  511;  Clcmcut,  8  N.  H.  472  ;  Graham  i-.  Kinder, 

[203] 


197*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

deem  his  equity  of  redemption  after  the  same  has  been  taken 
and  sold  on  execution,  is  assignable  *both  at  law  and  in 
equity,  [b)  The  respective  interests  of  a  crew  of  a  privateer  in 
a  prize  cannot  be  assigned,  because,  by  the  statute  of  the  United 
States,  they  have  no  right  in  or  control  over  the  property  until 
it  has  been  libelled,  condemned,  and  sold  by  the  marshal,  and 
the  proceeds,  after  all  legal  deductions,  paid  over  to  the  prize 
agents,  (c) 


SECTION    II. 

OF   THE    MANNER    OF    ASSIGNMENT. 

It  was  once  held  that  the  assignment  of  an  instrument  must 
be  of  as  high  a  nature  as  the  instrument  assigned,  (d)  But 
this  rule  has  been  very  much  relaxed,  if  not  overthrown  ;  and 
indeed  it  has  been  determined  that  the  equitable  interest  in  a 
chose  in  action  may  be  assigned  for  a  valuable  consideration 
by  a  mere  delivery  of  the  evidence  of  the  contract ;  and  that  it 
is  not  necessary  that  the  assignment  should  be  in  writing,  (e) 
So  the  equitable  interest  in  a  judgment  may  be  assigned  by  a 
delivery  of  the  execution.  (/)  But  a  mere  agreement  to  assign 
without  any  delivery,  actual  or  symbolical  of  the  writing  evi- 
dencing the*  debt;  or  an  indorsement  upon  the  instrument 
directing  the  debtor  to  pay  a  portion  of  the  amount  due,  to  a 
third  person,  such  indorsement  being  notified  to  the  debtor,  but 

llB.Mon.  60.     So  the  powers  and  duties  satisfied  that  there  is  no  sensible  ground 

of  tlie  testamentary  guardian  of  an  infant  upon  which  a  writing  shall  be  held  neces- 

are  a  personal  trust,  wliich  cannot  be  as-  sary  to  prove  an  assignment  of  a  contract, 

signed.     Balcli  v.  Smith,  12  N.  H.  437.  which  assignment  has  been  executed  by 

{b)  Bigclow  I'.  Willson,  1   Pick.  485.  delivery,  any  more  than  in  the  assignment 

(c)  Usher  v.  DeWolf,  13  Mass.  290;  of  a  personal  chattel."     Vcr  Parker,  C.J. , 

Alexander  v.  Wellington,  2  R.  &  My.  35.  Jones  v.  Witter,  13  Mass.  304.     See  also, 

((/)  Perkins   v.   Parker,   1    Mass.  117;  Dunn  ?;.  Snell,  15  Mass.  481  ;  Palmer  v. 

Wood  V.  Partridge,  11   id.  488.     In  this  Merrill,  6  Cush.  292;  Vose  v.  Handy,  2 

case,  P«r/.(r,  C.  J.,  said  :  "  It  is  uniformly  Grccnl.   322,  334;  Robbins   r.   Bacon,  3 

holden,  tliat  an  assignment  of  an  instru-  id.   346  ;   Porter  r.  Ballard,    26   Maine, 

ment  under  seal  muSt  be  by  deed ;  in  other  448;  Prcscott   r.    Hull,    17   Johns.   284, 

words,   that   the   instrument  of   transfer  292;    Ford    v.    Stuart,    19   Johns.   342; 

nniust  be  of  as  high  a  nature  as  the  instru-  Thompson  v.  Emory,  7  Post.  269  ;  Tib- 

ment  transferred."  bits  v.  George,  5  Ad.  &  El.  107  ;  Heath 

((')  "  There  are  cases  in  the  old  books  v.  Hall,  4  Taunt.  326. 
which  show  that  debts  and   even  deeds         (/")  Dunn  r.  Snell,  15  Mass.  481. 
may  be  assigned  by  parol ;  and  we  are 

[204] 


I 


CIL  XIV.]  ASSIGNMENT.  *198 

the  writing  remaining  in   the  hands  of  the  creditor,  docs   not 
constitute  a  sufficient  assignment,  {ff) 


SECTION     III. 

OF   THE   EQUITABLE   DEFENCES. 

We  have  seen  that  an  assignee  of  a  chose  in  action  takes  it 
subject  to  all  the  equities  of  defence  which  exist  between  *the 
assignor  and  the  debtor,  [g)  The  assignee  does  not  take  a 
legal  interest,  nor  hold  what  he  takes  by  a  legal  title  ;  but  he 
holds  by  an  equitable  title  an  equitable  interest;  and  this  in- 
terest courts  of  law  will  protect  only  so  far  as  the  equities  of 
the  case  permit ;  and  any  subsequent  assignee  is  subject  to  the 
same  equities  as  his  assignor.  (//)  But  these  equities  must  be 
those  subsisting  at  the  time  when  the  debtor  receives  notice  of 
the  assignment;  for  the  assignment,  with  notice,  imposes  upon 
the  debtor  an  equitable  and  moral  obligation  to  pay  the  money 
to  the  assignee,  (i)  But  the  assignee  ought,  especially  if  re-^ 
quired,  to  exhibit  the  assignment,  or  satisfactory  evidence  of  it, 
to  the  debtor,  to  make  his  right  certain  ;  although  it  is  enough 
if  the  debtor  be  in  good  faith  informed  of  it,  and  has  no  reason 
to  doubt  it.  {j)  And  if  after  the  assignment,  and  previous  to 
such  a  notice  of  it,  the  debtor  pays  the  debt  to  the  assignor,  he 
shall  be  discharged,  because  he  shall  not  suffer  by  the  negligence 
or  fault  of  the  assignee,  [k)  And  if  after  assignment  and  notice 
the  debtor  pays  the  debt  to  the  assignor,  and  is  discharged  by 
him,  and  the  assignee  recovers  judgment  against  the  assignor 
for  the  consideration  paid  him  for  the  assignment,  the  assignee 

(ff)  Wliittlc    V.    Skinner,    23    Ycrm.  r.  The  United   Guarantee,  &e.    Co.,    31 

531";  Palmer  r.  Merrill,  G  (^isl).  282.  K.    L.    &    E.    538;    Fanton    v.    Fairfield 

(//)  See  .sif;)»Yj,  n.  (;).p.  *196.  County  Bank,  23  Conn.  485.     See  also, 

()i)  Willis  V.  Twaniltly,  13  Ma.-5.s.  204  ;  supra,  n.  ■(;•),  p.  *196. 
Stocks  (-.  Dobson,  19  E."  L.  &■  E.  96.  (/)  Davenport  r.Woodhridfre,  8  Grcenl. 

(/')   Crocker  c.  Whitney,  10  Mass.  31G,  17;"   Bean   v.    Simp.-;on.    16    Maine,   49; 

319  ;  Mowr/r.  Todd,  \'i  id.  281  ;  Jones  Johnson  v.  Bloodjrood,  I  .Johns.  Cas.  51  ; 

f.  Witter,    1*3   id.  304;  Fav  e.   .Tones,   18  Anderson  c.  Van  Alen,  12  Johns.  343. 
Barh.  .340  ;   Uislev  c.  Bislev,  1 1   Hoi).  La.         (A.)  Jones    e.    Witter,    13    Ma.^s.    304; 

298  ;  Small  v.  Browder,  11 "  B.  Mon.  212  ;  Stocks  v.  Dobson,  19  E.  L.  &  E.  96. 
CludlVlter  v.  Cox,   1   Snecd,  330 ;  Myers 

VOL.  I.  18  [  205  ] 


199* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


may  still  recover  of  the  debtor  the  debt  assigned,  deducting 
what  he  actually  recovers  from  the  assignor.  (/)  Nor  can  the 
debtor  set  off  any  demand  against  the  assignor  which  accrues 
to  him  after  such  assignment  and  notice,  (m)  but  he  may  any 
which  existed  at  or  before  the  assignment  and  notice,  (n) 


SECTION    IV, 


COVENANTS   ANNEXED    TO   LAND. 


A  covenant  affecting  real  property,  made  with  a  covenantee 
who  possesses  a  transferable  interest  therein,  is  annexed  to  *the 
estate,  and  is  transferable  at  law,  passing  with  the  interest  in 
the  realty  to  which  it  is  annexed ;  (o)  and  it  is  often  called  a 
"  covenant  running  with  the  land."  If  such  covenants  be  made 
by  the  owner  of  land  who  conveys  his  entire  interest  to  the 
covenantee,  being  annexed  to  the  estate,  the  assignee  of  that 
estate  may  bring  his  action  on  the  covenants  in  his  own 
name,  (p)  But  the  assignee  must  take  the  estate  which  the 
covenantee  has  in  the  land,  and  no  other;  nor  can  he  sue  upon 
the  covenants  if  he  takes  a  different  estate,  {q)     But  it  is  said 


(l)  Jones  V.  Witter,  13  Mass.  304. 

(m)  Goodwin  v.  Cuuninghjim,  12  Mass. 
193;  Greene  v.  Hatch,  id.  195;  Jenkins 
V.  Brewster,  14  id.  291  ;  Phillips  v.  Bank 
of  Lewistown,  18  Penn.  394;  Conant  i'. 
Seneca  County  Bank,  1  Ohio  State  R. 
298. 

(w)  Ainslie  v.  Boynton,  2  Barb.  Sup. 
Ct.  258  ;  Sanborn  v.  Little,  3  N.  H.  539. 

(o)  "A  covenant  is  real  when  it  doth 
run  in  the  realty  so  with  the  land  that  he 
that  hath  the  one,  hath  or  is  subject  to  the 
other,  and  so  a  warranty  is  called  a  real 
covenant."     Shep.  Touch.  161. 

(p)  Thus  if  A,  seized  of  land  in  fee, 
conveys  it  by  deed  to  B,  and  covenants 
with  B,  his  heirs,  and  assigns,  for  further 
assurance,  and  tlien  B  conveys  to  C,  and 
C  to  D,  D  may  require  A  to  make  further 
assurance  to  him  according  to  the  cove- 
nant, and  on  his  refusal  may  maintain  an 
action  against  him  by  the  common  law. 
Middlemore  v.  Goodale,  1  Rol.  Abr.  521. 
See  also,  Campbell  v.  Lewis,  3  B.  &  Aid. 
392. 

[206] 


(q)  He  is  not  in  fact  an  assignee  of  the 
covenantee  unless  he  takes  the  same  estate  ; 
for  an  assignment,  by  the  very  definition 
of  the  word,  is  "  a  transfer,  or  making 
over  to  another,  of  one's  ivJiole  vitrrest, 
whatever  that  interest  may  be ;  and  an 
assignment  for  life  or  years  ditfcrs  from  a 
lease  only  in  this,  that  by  a  lease  one 
grants  an  interest  less  than  his  own,  re- 
serving to  himself  a  i-eversion  ;  in  assign- 
ments he  parts  with  his  whole  property, 
and  the  assignee  consequently  stands  in 
the  place  of  the  assignor."  1  Steph.  Com. 
485.  There  is  a  difference,  however,  in 
this  respect,  between  the  estate  or  interest 
in  the  land  and  the  land  itself;  for  there 
may  be  an  assignment  of  a  part  of  the 
land,  and  the  assignee  may  have  his  action. 
This  distinction  is  taken  by  Lord  Coke. 
"  It  is  to  be  observed,"  says  he,  "  that  an 
assignee  of  part  of  the  land  shall  vouch  as 
assignee.  As  if  a  man  make  a  feoffment 
in  fee  of  two  acres  to  one,  with  warranty 
to  him,  his  heirs  and  assigns,  if  he  make  a 
feoffment  of  one  acre,  that  feoffee  shall 


CH.  XIV.] 


ASSIGNMENT. 


*200 


that  the  assignee  cannot  sue  upon  the  covenants  unless  the 
estate  passes  to  him  ;  and  therefor©  cannot  upon  the  covenants 
that  the  grantor  is  lawfully  seized  of  the  land,  and  has  a  good 
right  to  convey ;  for  if  these  be  broken  no  estate  passes  to  the 
assignee,  and  being  broken  before  the  assignment,  they  have 
become  personal  choses  in  action,  and  so  not  assignable,  (r) 

*The  right  to  sue  for  existing  breaches  does  not  pass  to  the  as- 
signee, —  being  mere  personal  choses  in  action,  (rr)  —  unless 
they  be  continuing  breaches.  As  if  there  be  a  covenant  to 
repair,  which  is  broken,  and  the  need  of  repair  remains,  and  the 
assignee  takes  the  property  in  that  condition,  he  may  sue 
on  the  covenant,  (s)  But  if  there  be  arrearages  of  rent,  the 
breaches  of  the  covenant  to  pay  are  each  entire,  giving  a  dis- 
tinct right  of  action,  and  on  the  death  of  the  landlord  these 
arrearages  go  to  the  personal  representative  and  not  to  the 
heir.  (/) 


voucli  as  assignee  ;  for  there  is  a  diversity 
hiiironi  the  wliole  estate  in  }>iiii,  and  part  of 
the  folate  iu  'the  ichole,  or  of  am/  part.  As 
if  a  man  hatli  a  warranty  to  him,  his  heirs 
and  a.-<sifrns,  and  he  make  a  lease  for  Hfe, 
or  a  gift  in  tail,  the  lessee  or  donee  shall 
not  vuiuh  as  assignee,  because  he  hath  not 
the  estate  in  fee-simple  wlioreunto  tlie 
warranty  is  annexed."  Co.  Litt.  .'J85,  a. 
See  also,  llolford  i-.  Hatch,  Dong.  183; 
I'almcr  y.  Edwards,  id.  187,  note;  Van 
I{ens.>»elacr  v.  Gallup,  5  Denio,  434  ;  Astor 
V.  Miller,  2  Paige,  68,  78  ;  Van  Home  v. 
Grain,  1  Paige,  45.5. 

()•)  This  is  the  established  doctrine  in 
this  country,  and  it  would  seciu  to  l)e  in 
s'.ccordance  with  the  older  aiitlioritics  in 
England.  Shep.  Touch.  17(1;  Greenby 
V.  Wilcox,  2  Johns.  1  ;  Mitdiell  c.  Wanier, 
.')  Coint.  497  ;  Marston  r.  Ilobbs,  2  Ma.>;s. 
439;  Uoss  v.  Turner,  2  English,  [Ark.] 
l;32;  Eowlcr  v.  Poling,  2  Barb.  Sup.  Ct. 
3(H) ;  IJallard  i-.  Child,  34  Me.  33.5  ; 
Thayer  r.  Cleracnce,  22  Pick.  490.  Per 
Shdir,  C.  J.  Chancellor  Kent  says  : 
"  The  covenants  of  seizin,  and  of  a  right 
to  convey,  and  that  the  land  is  free  from 
iiicunil>rances,  are  jiei-sonal  covenants,  not 
nnniing  with  the  land,  or  jjassing  to  the 
assignee  ;  for,  if  not  true,  there  is  a  broach 
of  tliem  as  soon  as  the  deed  is  executetl, 
and  they  become  r/iose.s  in  action,  which  ai"e 
not  technically  assignable.  But  the  cove- 
nant of  warranty,  and  the  covenant  for 
(juiet  enjoyment,  are  j)rospective,  and  an 


actual  ouster  or  eviction  is  necessaiy  to 
constitute  a  breach  of  tlicni.  They  are, 
therefore,  in  the  nature  of  real  covenants, 
and  they  run  with  the  land  conveyed,  and 
descend  to  heirs,  and  vest  in  assignees  or 
tlie  purchaser.  The  distinction  taken  in 
the  American  cases  is  sup|K)rted  by  the 
general  current  of  English  autliorities, 
which  assume  the  principle  that  ccnenant 
docs  not  lie  by  an  assignee  for  a  breach 
done  before  his  time.  On  the  other  hand, 
it  was  decided  by  the  K.  B.,  in  Ivingdon 
V.  Nottle,  1  M.  &'S.  353,  4  id.  53,  that  a 
covenant  of  .seizin  did  ran  with  the  land, 
and  the  assignee  might  sue  on  the  ground 
that  want  of  seizin  is  a  continual  lircach. 
The  reiuson  assigned  for  this  last  decision 
is  too  retined  to  lie  sound.  The  breach  is 
single,  entire,  and  perfect  in  the  fii-st  in- 
stance." 4  Comm.  471.  The  case  of 
Kingdon  v.  Nottle  was  severely  criticized 
and  condemned  by  the  Supreme  Court  of 
Connecticut,  in  Mitchell  r.  Warner,  5 
Conn.  497,  and  it  cannot  be  considered  aa 
law  in  this  country. 

{rr)  St.  Saviours  Chnrchwarden.s  v. 
Smith,  3  Burrows,  1271  ;  Tillotson  v. 
Boyd,  4  Sandf.  516. 

(".s)  Mascal's  Case,  Moore,  242,  1  Leon. 
62;  Vivian  v.  Camjiion,  1  Salk.  141, 
Lord  Itavm.  1125;  Spraguc  v.  Baker, 
17  Mass.  "586. 

(t)  Anon.  Skin.  367  ;  Jlidgley  r.  Love- 
lace, Carth.  289,  12  Mod.  46. 

[207] 


201*  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

Covenants  between  landlord  and  tenanf,  lessee  and  rever- 
sioner, run  with  the  land.  If  one  who  owns  in  fee  conveys  to 
another  a  less  estate,  such  as  a  term  of  years,  and  enters  into 
covenants  with  the  grantee,  which  relate  to  the  use  and  value 
of  the  property  granted,  the  right  of  action  for  a  breach  of  these 
covenants  which  the  grantee  has  passes  to  his  assignee,  so  long 
as  this  less  estate  continues,  (u)  Such  are  covenants  to  repair, 
to  grant  estovers  for  repair  or  for  firewood,  to  keep  watercourses 
in  good  order,  (v)  or  supply  with  water ;  (iv)  also  covenants  for 
renewal,  {x)  for  quiet  *enjoyment,  (y)  and  the  usual  warranties 
for  quiet  possession.  (~)  But  if  one  having  no  estate  in  the  land 
grants  with  covenants  of  warranty,  as  no  estate  passes,  and 
nothing  except  by  estoppel,  the  assignee  cannot  sue  on  these 
covenants,  for  a  lessee  by  estoppel  cannot  pass  any  thing 
•over,  (a) 

(n)  Spencer's  Case,  5  Co.  R.  17,  b.  (ij)  Noke  v.  Awder,  Cro.  Eliz.  436. 

(v)  Holmes  i'.  Buckley,  Prec.  Ch.  39,  (z)  Campbell  v.  Lewis,  3   B.   &  Aid. 

1  Eq.  Ca.  Abr.  27,  pi.  4.  392. 

{w)  Jourdain  v.  Wilsou,  4  B.  &  Aid.  (a)  Noke  v.   Awder,    Cro.   Eliz.   436; 

.266.  Wiiitten  r.  Peacock,  2  Bing.  N.   C.  411. 

(x)  Eoe  V.  Havlev,  12  East,  464. 

[208] 


en.  XV.]  INDORSEMENT.  202 


CHAPTER    XV. 

NEW   PARTIES    BY   INDORSEMENT. 

Sect.  I. —  Of  Negotiable  Bills  and  Notes. 

By  the  ancient  rules  of  law  we  have  seen  that  the  transfer 
of  simple  contracts  was  entirely  forbidden.  It  is  usually  ex- 
pressed by  the  phrase,  that  a  chose  in  action  is  not  assignable. 
But  bills  of  exchange  and  promissory  notes,  made  payable  to 
order,  are  called  negotiable  paper;  and  they  may  be  transferred 
by  indorsement,  and  the  holder  can  sue  in  his  own  name,  and 
the  equitable  defences  which  might  have  existed  between  the 
promisor  and  the  original  promisee  are  cut  off. 

It  is  generally  said  that  the  law  of  bills  and  notes  is  excep- 
tional ;  that  they  are  choses  in  action,  which,  by  the  policy  of 
the  law  merchant,  and  to  satisfy  the  necessities  of  trade  and 
business,  are  permitted  to  be  assigned  as  other  choses  in  action 
cannot  be.  But  the  law  of  negotiable  paper  may  be  considered 
as  resting  on  other  grounds.  If  A  owes  B  one  hundred  dol^- 
lars,  and  gives  him  a  promissory  note  wherein  he  promises 
to  pay  that  sum  to  him,  (without  any  words  extending  the 
promise  to  another.)  this  note  is  not  negotiable ;  and  if  it  be 
assigned  it  is  so  under  the  general  rule  of  law,  and  is  subject 
in  the  hands  of  the  assignee  to  all  equitable  defences.  But  if  A 
in  his  note  promises  to  pay  B  or  his  order ^  then  the  original 
promise  is  in  the  alternative,  and  it  is  this  which  makes  the 
note  negotiable.  The  promise  is  to  pay  either  B  or  some  one 
else  to  whom  B  shall  direct  the  payment  to  be  made.  And  when 
B  orders  the  payment  to  be  made  to  C,  then  C  may  demand 
it  under  the  original  promise.  He  may  say  that  the  promise 
was  made  to  B,  but  it  was  a  promise  to  pay  C  as  soon  as  he 
should    come    within    the  condition ;    that  is,  as    soon    as  he 

18*  [  209  ] 


203*  THE   LAW   OF    CONTRACTS.  [BOOK   I. 

should  become  the  payee  by  order  of  *B.  And  then  the  law 
merchant  extends  this  somewhat,  by  saying  that  the  original 
promise  was  in  fact  to  pay  either  to  B,  or  to  C  if  B  shall  order 
payment  made  to  him,  or  to  any  person  to  whom  C  shall  order 
payment  made,  after  B  has  ordered  the  payment  made  to  C. 
For  B  has  the  right  of  not  merely  ordering  payment  to  be  made 
to  C,  but  to  C  or  his  order  ;  and  C  has  then  the  same  right, 
and  by  the  continued  exercise  of  this  right  the  transfer  may  be 
made  to  any  number  of  assignees  successively,  and  the  last 
party  to  whom  the  note  is  thus  transferred,  or  the  final  holder, 
becomes  the  person  to  whom  A  promised  B  to  pay  the  money, 
and  such  holder  may  sue  in  his  own  name  upon  this  promise. 

We  may  find  the  reasons  of  the  law  of  negotiable  bills  and 
notes  in  their  origin  and  purpose.     By  interchange  of  property, 
•men  supply  each  other's  wants  and  their  own  at  the  same  time. 
In  the  beginning  of  society  this  could  be  done  only  by  actual 
.l)arter,  as  it  is  now  among  the  rudest  savages.     But  very  early 
money  was  invented  as  the  representative  of  all  property,  and 
as  therefore  greatly  facilitating  the  exchange  of  all   property, 
-and  as  measuring  its  convertible  value.     The  utility   of  this 
means   enlarged,  as  the  wants  of  commerce,  which  grew  with 
civilization,  were  developed.     But,  at  length,  more  was  needed  ; 
it  became  expedient  to  take  a    further    step  ;    and   negotiable 
paper,  first  bills  of  exchange  and  then  promissory  notes,  were 
introduced  into  mercantile  use,  as  the  representalive  of  the  rep- 
resentative of  property^ —  that  is,  as  the  representative  of  money. 
It  was  possible  to  made  exchanges  of  large  quantities  of  bulky 
•articles,  by  the  use  of  money,  without  much  inconvenience  ; 
and  it  was  possible  for  him  who  wished  to  part  with  what  he 
had,  to  acquire  in  its  stead  by  selling  it  for  money,  an  article 
in  which   the    value  of  all  that   he  parted  with  was    securely 
^vested,  until  he  had  such  opportunity  as  he  might  wish  to  place 
this   value  in    other  property,  which   he   did  by  buying.     But 
still  coin    was    itself   a    substantial    article,  not  easily   moved 
to  great  distances  in  large  quantities  ;  and  while  it  adequately 
represented    all    property,  it    failed   to    represent    credit.     And 
this    new   invention    was    made,  and    negotiable  paper    intro- 
duced, to  extend  this  representation  another  degree.     It  does 
•         [210] 


en.    XV.]  INDORSEMENT.  *204 

not  represent  property  directly,  but   *money.     And  as  in  one 
form  it  represents  the  money  into  which  it  is  convertible  at  the 
pleasure  of  the  holder,  so  in  another  form  it  represents  a  future 
payment  of  money,  and  then  it  represents  credit.     And  as  names 
in  any  number  may  be  written  on  one   instrument,  that  instru- 
ment represents  and  embodies  the  credit  of  one  man  or  the  ag- 
gregated credit  of  many.     Thus,  by  this  invention,  vast  amounts 
of  value  may  change  ownership  at  any  distance,  and  be  trans- 
mitted as  easily  as  a  single  coin  could  be  sent.     And  by  the 
same  invention,  while  property  is  used  in  commercial  intercourse, 
the  credit  which  springs  from  and  is  due  to  the  possession  of  that 
property  may  also  be  used  at  the  same  time,  and  in  the  same 
way.     An(?  all  this  is  possible  because   negotiable  paper  is  the 
adequate  representative  of  money,  and  of  actual   credit,  in  the 
transaction  of   business.       And  it   is  possible   therefore    only 
while  this  paper  is  such  representative,  and   no  longer;    and 
the  whole   system   of  the  law  of  negotiable  paper  has  for  its 
object  to  make  this  paper  in  fact  such  representative,  and  to 
secure  its  prompt  and  available  convertibility,  and  to  provide 
for  the  safety  of  those  who  use  this  implement,  either  by  mak- 
ing it  or  receiving  it,  in  good  faith. 

By  the  practice  of  merchants,  the  transfer  of  negotiable 
paper  is  made  by  indorsements.  The  payee  writes  his  name 
{())  on  the  back  of  the  bill  or  note,  and  delivers  it  to  the  pur- 
chaser, (bb)  and  is  then  called  an  indorser.     The  purchaser  of 


(h)  There  can  be  no  indorsement  with-  power  isfriven  to  the  indorsee  of  specially 

out  a  si^ninf^  of  the  name.     Vincent  v.  ai>pointin<;  the  payment  to  he  made  to  a 

Horiock,  1  Camp.  442.     In  thi.s  ca,sc  A,  particular  individual,  and  what  he  does  in 

the  drawer  and   payee  of  a   hill  of  ex-  the  exercise  of  this  power  is  only  ej-/)reAs/o 

flmnfre,  indorsed   the  hill  in  hlank  to  B,  eontm  quw  tacite  iiisiint.     This  is  a  suffi- 

who  wrote  over  A's  sif^nature,  "  pay  the  cient  indorsement  to  the  plaint ijf's,  hut  not 

contents   to  C,"   and  then  delivered  it  to  l>i/ t/n' r/f/niilinits."     So /i»//»r,  J.,  in  Fenn 

C.     J/ikl,  that  li  was  not  liaMe  to   C  as  i-.    Harrison,  .3  T.  K.  761,  says  :  "  In  the 

an  indorser  of  the  hill.     I,ord  Ellcnboroiufh  c.ise  of  a  hill  of  exchanfre,  we   know  pre- 

said  :  "  I  am  dearly  of  opinion  that  this  is  ciscly  what  remedy  the  holder  hius,  if  the 

not   an    indorsement    hy    the    defendant,  hill  he    not    paid ;    his   security    appears 

For  such  a  purpose  the  name  of  the  party  wholly    on  the   face  of  the    hill   itself, — 

must  a])pcar  written  with  intent  to  indorse,  the  acceptor,  the  drawer,  and   the  indors- 

We   see  these  words,  '  I'ay   the  contents  ers,  are  all  liaiile  in  their  turns  ;  hut  they 

to   such   a  one,'  written  over  a  hlank  in-  aw  on\yV\i\\)\i'lM rnusi' t/ity  har>  uriilin  their 

dorscrnent  every  day,  without  any  thdurrht  uaiws  on  the  hill." 

of  contracting;  an  oltlifration  ;  and  no  ohii-         (W()  In   order  to   a  valid  indorsement, 

gation    is  therehy   contracted.      When    a  the  payee  or  holder  must  not  only  writo 

bill  is  indorsed  by  the  payee   in  blank,  a  his  name  on  the  back,  hut  must  deliver 

[211] 


205*-206* 


THE    LAW   OF   CONTRACTS. 


[book  I. 


the  note  may  then  write  over  *this  indorsement  an  order  to  pay 
the  contents  of  the  note  to  him  or  to  his  order,  if  the  payee 
has  not  already  written  this.  The  pm-chaser  thus  becomes  an 
indorsee.  When  the  name  only  is  written  it  is  called  an 
indorsement  in  blank,  and  the  holder  may  transfer  it  by  delivery, 
and  it  may  thns  pass  through  many  hands,  the  final  holder  who 
demands  payment  writing  over  the  name  indorsed  an  order  to 
pay  to  him.  Whenever  this  order  is  written  by  an  indorser, 
whether  a  first  or  later  indorser,  it  is  an  indorsement  in  full,  and 
the  indorsee  cannot  transfer  the  note  excepting  by  his  indorse- 
ment, which  again  may  be  in  full  or  in  blank.  It  is  now  quite 
settled  that  the  executor  or  administrator  of  a  deceased  payee 
may  indorse  the  note  of  his  testator,  (c)  but  he  has  no  right  to 
deliver  to  the  indorsee  a  note  which  was  indorsed  by  the 
deceased,  but  never  delivered  by  him.  (cc)  The  same  rule  holds 
also  in  the  case  of  an  assignee  of  an  insolvent  payee,  (d) 

The  indorsement  of  a  blank  note  binds  the  indorser  to  any 
terms  as  to  amount  and  time  of  payment  which  the  party  to 
whom  he  intrusts  the  paper  inserts,  (e)  If  the  note  be  origi- 
nally made  payable  to  "  bearer,"  it  is  negotiated  or  *transferred 
by  delivery  only,  and  needs  no  indorsement,  (/)  any  person 
bearing  or  presenting  the  note  becoming  in  that  case  the  party 
to  whom  the  maker  of  the  note  promises  to  pay  it.  And  the 
holder  of  negotiable  paper,  indorsed  in  blank  or  made  payable 
to  bearer,  is  presumed  to  be  the  owner  for  consideration.  If 
circumstances  cast  suspicion  on  his  ownership,  as  if  it  came  to 


the  bill  to  the  indorsee.  Emmett  v.  Tott- 
enham, 20  E.  L.  &  E.  348 ;  Sainsbury  v. 
Parkinson,  id.  351.  See  also  Hall  v. 
Wilson,  16  Barb.  548. 

(c)  This  question  was  ably  discussed  in 
the  case  of  Rawlinson  v.  Stone,  3  Wils. 
1 .  This  was  an  action  upon  a  promissory 
note,  payable  to  A  B,  or  order,  and  in- 
dorsed by  the  administratrix  of  A  B.  It 
was  olyected  that  the  indorsement  was  not 
valid  so  as  to  give  the  indorsee  an  action 
in  his  own  name.  But  the  objection  was 
overruled  ;  and  this  case  has  been  consid- 
ered ever  since  as  having  settled  the  law 
upon  this  point.  See  Watkins  r.  Maule, 
2  Jac.   &  Walk.  237,  243 ;  Shaw,  C.  J., 

[212] 


Rand  v.  Hubbard,  4  Met,  252,  258  ;  Mal- 
bon  V.  Southard,  36  Me.  147. 

(cc)  Bromage  v.  Lloyd,  1  Exch.  31;  Clark 
V.  Sigourncy,  17  Conn.  511;  Clark  y. 
Bovd,  2  Ham.  279. 

(d)  Pinkerton  r.  Marshall,  2  H.  Bl.  334 ; 
Thomason  v.  Frere,  10  East,  418. 

(e)  Montague  v.  Perkins,  22  E.  L.  &  E. 
516;  Russei  v.  Langstaffe,  Doug.  514; 
Violctt  V.  Patton,  5  Cranch,  142,  151 ; 
Johnson  v.  Blasdale,  1  S.  &  M.  1 ;  Torrey 
V.  Fisk,  10  S.  &  M.  590  ;  Smith  v.  Wyck- 
ofF,  3  Sandf.  Ch.  77,  90. 

( /')  Wilbour  V.  Turner,  5  Pick.  526 ; 
Dole  V.  Weeks,  4  Mass.  451.  And  this 
is  so  although  it  be  under  seal.  Porter  v. 
McCollum,  15  Geo.  520. 


CH.  XV.] 


INDORSEMENT. 


-206 


him  from  or  through  one  who  had  stolen  it,  then  he  must  prove 
that  he  gave  value  for  it ;  and  on  such  proof  will  be  entitled  to 
it,  unless  it  is  shown  that  he  was  cognizant  of  the  want  of  title, 
or  had  such  notice  or  means  of  knowledge  as  made  his  negli- 
gence equivalent  to  fraud,  (g) 

Strictly  speaking,  only  a  payee  or  one  made  payee  by  sub- 
sequent indorsement,  can  become  himself  an  indorser.  It  is 
not  enough  that  a  name  is  written  on  the  back  f>f  a  note  or  bill, 
for  although  this  is,  literally  speaking,  an  indorsement,  whether 
it  be  so  or  not  by  law  and  the  usage  of  merchants,  must  depend 
upon  the  character  of  the  signer.  The  efl'ect  of  a  simple  sig- 
nature, without  any  other  words,  on  the  back  of  a  note,  by  one 
not  the  payee,  has  been  much  considered  and  variously  decided. 
From  the  authorities  which  we  deem  entitled  to  most  respect 
upon  this  question,  and  from  general  principles,  we  come  to 
these  conclusions :  If  any  one  not  the  payee  of  a  negotiable 
note,  or  in  the  case  of  a  note  not  negotiable,  if  any  party, 
writes  his  name  on  the  back  of  the  note  at  the  time  it  is 
made,  his  signature  binds  him  in  the  same  way  as  if  it  was 
on  the  face  of  the  note  and  below  that  of  the  maker,  that  is 
to  say,  he  is  held  as  a  joint  maker  or  as  a  joint  and  several 
maker  acicj-ding  to  the  form  of  the  note,  (g-g)     If  the  signature 


3^i'( 


(7)  Miller  v.  Race,  1  Burr.  452;  Grant 
V.  Vauglian,  3  Burr.  1516  ;  Peacock  r. 
Rhodes,  ])ou-r.  G33;  Collins  v.  Martin,  1 
B.  &  I'.  C48  ;  Lawson  v.  Weston,  4  Ksp. 
56  ;  Kin};  v.  Milsoni,  2  Cani]).  5  ;  Solo- 
mons V.  ]iank  of  Euj,'lan(l,  13  East,  135, 
notes  ;  raferson  r.  Ilardacrc,  4  Taunt. 
114;  Iliitcli  r.  Searles,  31  E.  L.  &  E.  219  ; 
Jndsoii  i\  Holmes,  'J  Louis.  Ann.  Reps.  20; 
Cruger  v.  Arnistroni,%  3  Johns.  Cas.  5  ; 
Conroy  r.  Warren,  3  .Joinis.  Cas.  259  ; 
Thurston  v.  MeKown,6  Mass.  428;  Mun- 
roc  V.  Cooper,  5  Pick.  412  ;  Wheeler  r. 
Guild,  20  Pick.  545  ;  Aldrich  r.  Warren, 
16  Maine,  465.  It  is  now  well  settled, 
overnilinf;  the  earlier  cases,  that  if  the  de- 
fendant prove  a  note  fraudulent  or  ilU'jjal 
in  its  ince]ition,  this  throws  the  hurdcn  on 
the  |)laintit^'  of  i)rovin<,'  that  he  paid  value. 
Smith  r.  lirainc,  3  K.  L.  &  E.  379  ;  Bailcv 
r.  Bidwell,  13  M.  &  W.  73;  Case  r.  Me- 
chanics' Bankin;;  Association,  4  Coms. 
166.  It  is  otherwise  if  the  defcndjint 
merely  show  a  want  of  consideration  when 
the  note  was  given.     Middletou  Bank  v. 


Jerome,  18  Conn.  443  ;  EUicott  v.  Martin, 
6  Maryl.  509 ;  Thompson  ?'  Shepherd, 
12  Mete.  311.  Where  a  hill  or  note  is  in- 
dorsed in  hlank  and  is  transferred  hy  the 
indorsee  hy  delivery  only,  without  any 
fresh  indorsement,  the  transfcrree  takes  as 
a^rainst  the  acceptor  any  title,  which  the  in- 
termediate indorsee  ))ossessed.  Eairclough 
V.  Pavia,  25  E.  L.  &  E.  533. 

(////)  Canii>hell  v.  Butler,  14  Johns.  349; 
Dean  v.  Hall,"  17  Wend.  214;  Sampson 
r.  Thornton,  3  Mete.  275  ;  Union  Bank 
r.  Willis,  8  id.  504  ;  Austin  v.  Boyd,  24 
I'ick.  64  ;  Brvant  r.  Eastman,  7  Cush. 
Ill;  Adams  "r.  Hanlv,  32  Maine,  339; 
Martin  r.  I}oyd,  11  N.  H.  385  ;  Flint  v. 
Day,  9  Verm.  345  ;  Brij^tht  v.  Carpenter, 
9  liam.  (Ohio)  139;  Carroll  v.  Weld,  13 
111.  682.  See  also,  Ellis  v.  Brown,  6 
Barh.  282  ;  Malhon  v.  Southard,  36  Mc. 
147;  Partridf^c  v.  Colhy,  19  Barh.  258; 
Schnciderc.  SchiH'man,  20  Missouri,  571  ; 
(Jrecnough  v.  Sinead,  3  Ohio  State  Reps. 
415. 


[213] 


206-  THE   LAW    OF   CONTRACTS.  [bOOK    I. 

be  at  a  distinctly  later  period,  after  the  making  and  delivery  of 
the  note,  the  signer  as  to  the  payee  is  not  a  maker  but  a 
guarantor,  (g-h)  His  promise  is  void  if  without  consideration, 
but  the  consideration  may  be  the  original  consideration  for  the 
note,  if  the  note  was  received  at  his  request  and  upon  his  prom- 
ise to  guarantee  the  same,  or  perhaps  if  the  note  was  made 
at  his  request  alone,  without  the  promise,  and  more  certainly 
if  the  note  was*  given  for  his  benefit;  or  the  consideration  for 
the  guarantee  may  be  a  new  one  moving  in  some  way  from 
the  holder.  In  the  last  case  if  the  note  is  not  negotiable  the 
party  indorsing  can  be  held  only  as  maker  or  as  guarantor,  but 
if  the  note  be  negotiable  the  question  might  arise  whether, 
although  the  party  signing  is  only  a  guarantor  as  to  the  payee 
or  party  receiving  the  note  from  him,  he  may  not  be  liable  to 
subsequent  parties  as  indorser.  For  if  he  be  only  a  guarantor 
he  may  make  the  defence  of  a  w^ant  of  consideration  against 
any  holder,  but  if  indorser,  only  against  his  immediate  indorsee. 
This  question  we  should  answer  by  saying  that  if  the  payee 
writes  his  name  over  the  name  of  the  other,  thus  making  him 
to  all  appearances  a  second  indorser,  he  might  be  held  as  such 
by  any  subsequent  ignorant  holder  for  value,  because  he  has 
enabled  the  payee  to  give  his  signature  this  app^pance  and 
therefore  this  effect.  And  we  should  go  further  ana  consider 
that  he  would  be  liable  to  any  holder  even  with  full  notice, 
because  he  wrote  his  name  for  the  purpose  of  giving  the  payee 
his  credit,  and  therefore  impliedly  authorized  the  payee  to  give 
his  suretyship  any  character  perfectly  compatible  with  the 
manner  and  place  of  his  signature,  so  that  unless  there  was  a 
special  agreement  between  the  parties  that  this  should  not  be 
done,  which  was  also  known  to  the  holder,  the  payee  might 
transfer  the  note,  making  the  signer  a  second  indorser,  and 
liable  as  such. 

Bills  and  notes  are  usually  considered  together ;  the  law 
respecting  them  being  in  most  respects  the  same.  The  maker 
of  a  note  being  liable,  generally,  in  the  same  way  as  the  ac- 
ceptor of  a  bill. 

(qh)  Ibid. ;  Tenney  v.  Prince,  4  Pick.  385  ;  Samson  i'.  Thornton,  3  Mete.  275 ; 
Hammond  v.  Chamberlin,  26  Vt.  406. 

[214] 


CH.  XV.] 


INDORSEMENT. 


*207 


SECTION    II. 


OF   THE   ESSENTIALS   OF   NEGOTIABLE   BILLS   AND    NOTES. 


Promissory  notes  were  made  negotiable  in  England  by  the 
statute  of  3  &  4  Anne  ;  but  it  has  been  doubted  there  whether 
a  note,  payable  to  the  maker's  own  order,  was  a  negotiable 
note,  (h)     In  this  country  it  is  so  undoubtedly.    In  *some  of  our 


(h)  Written  securities,  in  the  form  of 
promissory  notes,  made  payable  to  the 
malccr  or  his  order,  and  by  him  indorsed, 
are  an  irregnlar  kind  of  instrument,  which 
has  frrown  into  use  amonfj  merchants, 
since  the  statute  of  Anne,  and  is  now  ex- 
tremely common  in  this  country  and  in 
England.  At  what  precise  time  they  first 
came  into  use,  and  what  was  the  occasion 
which  gave  rise  to  them,  it  is  im])ossible  to 
say.  Baron  Parke,  in  Hooper  i'.  Williams, 
2  Exch.  21,  characterizes  tliem  as  "  securi- 
ties in  an  informal,  not  to  say  absurd, 
form,  probably  introduced  long  after  the 
statute  of  Anne  —  for  what  good  reason 
no  one  can  tell  —  and  become  of  late 
years  exceedingly  common."  So  Chief 
Justice  Wilde,  in  Brown  v.  De  Winton, 
6  C.  B.  .342,  said  that  notes  in  this  form, 
according  to  his  experience,  which  ex- 
tended over  a  period  exceeding  forty 
jears, —  were  very  far  from  uncommon. 
They  seem  not  to  have  attracted  the  atten- 
tion of  courts  until  a  recent  date.  It  has 
always  been  the  received  o[)inion  in  this 
country  that  instruments  in  this  form  were 
negotial)le  within  the  statute  of  Anne,  and 
that  they  differed  in  no  material  particular 
from  notes  in  the  ordinary  form.  Such 
also,  according  to  the  oI)scrvation  of 
eminent  counsel,  in  Brown  v.  De  Winton, 
wjis  the  received  opinion  in  England, 
until  the  case  of  Flight  i'.  Maclean,  16  M. 
&  W.  51.  Since  that  ca,se,  the  nature 
and  construction  of  instruments  of  this 
kind  have  been  very  learnedly  and  elabo- 
rately discussed  by  the  three  principal 
common  law  courts  in  Westminster  Hall. 
The  ca.se  of  Flight  c.  Maclean  came  up 
in  the  Court  of  Exchequer,  in  184().  The 
declaration  stated  that  the  defendant 
maile  his  i)romissory  note  in  writing,  and 
thcR'i)v  promised  to  pay  to  the  order  of 
the  defendant  .500/.  two  months  afterdate, 
and  that  the  defendant  thou  indorsed  the 


same  to  the  j)laintiff.  To  this  there  was 
a  special  demurrer,  assigning  for  cause, 
that  it  was  uncertain  whether  the  plaintiff 
meant  to  charge  the  defendant  as  maker 
or  as  indorser  of  the  note,  and  that  a  note 
payable  to  a  man's  own  order  was  not  a 
legal  instrument,  and  could  not  l»e  nego- 
tiated. The  court  sustained  the  demurrer 
without  much  discussion,  "on  the  ground 
that  the  instrument  in  question,  made 
payable  to  the  maker's  order,  was  not  a 
])romissory  note  within  the  statute  of 
Anne,  which  requires  that  a  promissory 
note,  to  be  assignable,  shall  be  made  pay- 
able by  the  j)arty  making  it  to  some  '  other 
person,'  or  his  order,  or  unto  bearer." 
During  the  argument,  however,  Parke,  B. 
put  to  the  counsel  this  <]uestion  :  "  Though 
l)y  the  law  merchant  the  note  cannot  be 
indorsed,  could  not  the  defendant  make 
this  a  promissory  note  by  indorsing  it  to 
another  person  ?  "  This  case  was  fol- 
lowed the  next  year  in  the  Queen's  Bench 
by  the  case  of  Wood  v.  Mytton,  10  Q.  B. 
805,  in  wiiich  precisely  the  same  question 
was  presented  as  in  Flight  v.  Maclean, 
except  that  in  the  latter  it  arose  on  a  mo- 
tion in  arrest  of  judgment,  whereas  in  the 
former  it  arose  on  a  special  demurrer. 
The  question  was  argued  at  considerable 
lengtii,  and  Lord  Denman,  after  a  very 
minute  cxamiimtion  of  the  statute  of 
Anne,  held  tliat  the  instrument  declared 
on  was  a  ])romissory  note  within  the  terms 
of  the  statute,  and  judgment  was  given 
for  the  plaintiff.  It  is  to  be  observed, 
liowever,  that  l\ttt(so>t,  J.,  during  the 
argument  of  this  case,  put  to  the  counsel 
a  (juestion  similar  to  that  put  by  Baron 
Parke,  in  Flight  v.  Maclean.  ""  What- 
ever," said  he,  "  may  be  the  case  with 
respect  to  a  note  like'  this  before  indorse- 
ment, may  it  not,  as  soon  as  it  is  indorsed, 
come  within  the  statute,  either  as  a  note 
pavable  to  bearer,  if  it  is  indorsed  in  blank 

[215] 


207- 


TIIE   LAW    OF   CONTRACTS. 


[book  I. 


States   there    are    statutory   provisions   permitting   negotiable 
paper  to  be  under  seal. 


or  as  a  note  payable  to  the  person  desig- 
nated, if  it  is  indorsed  in  full  ?  "  In  1848 
the  question  came  up  again  in  the  Court 
of  Exchequer,  in  the  case  of  Hooper  v. 
Williams,  2  Exch.  13.  The  instrument 
declared  on  in  this  case  was  similar  to 
those  in  the  two  former  cases,  being  made 
payable  to  the  defendant's  own  order,  and 
by  him  indorsed  in  blank.  The  pleader, 
however,  adopting  the  suggestion  of  Mr. 
Baron  Parke  and  Mr.  Justice  Patteson, 
declared  as  upon  a  note  payable  to  bearer. 
At  the  trial  the  defendant  objected  that 
there  was  a  variance  between  the  note  and 
the  declaration,  and  the  case  coming  be- 
fore the  court  in  banc  upon  this  objection, 
Parke,  B.,  in  delivering  the  opinion  of  the 
court,  said  :  "  It  appears  to  us,  that  the 
instrument  in  this  case  was,  when  it  first 
become  a  binding  promissory  note,  a  note 
payable  to  bearer,  and  consequently  was 
properly  described  in  the  declaration. 
This  view  of  the  case  reconciles  the  de- 
cision of  this  court  in  Flight  v.  Maclean, 
with  that  of  the  Queen's  Bench  in  Wood 
V.  Mytton  ;  but  not  the  reasons  given  for 
those  decisions.  In  the  case  in  this  court 
the  declaration  was  bad  on  special  de- 
murrer, as  it  did  not  set  out  the  legal 
effect  of  the  instrument.  In  that  in  the 
Queen's  Bench,  the  motion  being  for 
arrest  of  judgment,  the  declaration  was, 
in  substance,  good ;  for  it  set  out  an  in- 
artificial contract,  which  had  the  legal 
effect  of  a  valid  note  payable,  as  stated  on 
the  record,  to  the  plaintiff.  The  diff'er- 
cnce  between  the  two  courts  in  the  con- 
struction of  the  statute  is  of  no  practical 
consequence,  as,  in  our  view  of  the  case, 
securities  in  this  informal,  not  to  say 
absurd  form,  are  still  not  invalid;  and  it 
might  be  of  much  inconvenience  if  they 
were,  for  there  is  no  doubt  that  this  form 
of  note,  probably  introduced  long  after 
the  statute  of  Anne,  and  for  what  good 
reason  no  one  can  tell,  has  become  of  late 
years  exceedingly  common ;  and  it  is 
ob^'ious  that,  until  they  are  indorsed,  they 
must  always  remain  in  the  hands  of  the 
maker  himself,  and  so  he  can  never  be 
liable  n])on  them."  Shortly  after  the 
decision  in  this  case,  the  same  question 
came  up  in  the  Common  Bench,  in  the 
cases  of  Brown  v.  De  Winton  and  Gay  v. 
Lander,  6  C.  B.  336.  In  Brown  v.  De 
Winton  the  question  came  up  in  the  same 
shape  as  in  Wood  v.  Mytton,  and   Colt- 

[216] 


man,  J.,  in  giving  the  judgment  of  the 
court,  delivered  a  very  able  and  elaborate 
opinion,  in  which  he  agreed  entirely  with 
the  view  taken  by  the  Court  of  Exchequer. 
In  Gay  v.  Lander,  the  question  was  pre- 
sented in  a  little  different  light.  It  is  a 
familiar  principle  in  the  law  of  negotiable 
paper,  tliat  when  a  note  is  made  payable 
to  A  B  or  his  order,  the  words  "his  order  " 
impart  to  the  note  a  permanently  assign- 
able quality  into  whose  hands  soever  it 
may  come ;  so  that,  though  A  B  indorse 
the  note  to  C  D  specially,  without  using 
the  words  "or  his  order,"  yet  C  D  may 
indorse  it  in  turn  to  whomsoever  he 
pleases.  The  point  raised  in  Gay  i\ 
Lander  was,  whether  the  indorsement 
should  receive  the  same  construction  in 
the  case  of  a  note  payalile  to  the  order  of 
the  maker  and  by  him  indorsed,  and  the 
Court  held  that  it  should.  CoUmaii,  J., 
in  delivering  the  opinion,  said :  "  We 
think  that  the  principle  on  which  the  case 
of  Brown  v.  De  AVinton  was  decided,  will 
extend  to  this  case.  The  princijde  on 
which  that  case  was  decided  is,  that  the 
note,  before  it  was  indorsed,  was  in  the  na- 
ture of  a  promise  to  pay  to  the  person  to 
whom  the  maker  should  afterwards,  by  in- 
dorsement, order  the  amoiint  to  be  paid  ; 
and  that,  after  the  note  is  indorsed  and 
circulated,  it  must  be  taken  as  against 
the  party  so  making  and  indorsing  the 
note,  that  he  intended  that  his  ■  in- 
dorsement should  have  the  same  effect 
as  the  indorsement  by  the  payee  of  a 
note  payable  to  the  order  of  a  per- 
son other  than  tlie  maker  woidd  have 
had.  Now,  it  is  well  established  that,  if  a 
note  be  made  p.ayable  to  J.  S.  or  order, 
and  J.  S.,  in  such  case,  indorses  the  note 
special!}'  to  Smith  &  Co.,  without  adding 
'  or  order,'  Smith  &  Co.  may  convey  a 
good  title  to  any  other  person  by  indorse- 
ment." It  might,  perhaps,  be  inferred 
from  what  fell  from  Baron  Parke  in  Hoop- 
er V.  Williams,  that  he  entertained  a  dif- 
ferent opinion  on  this  last  point,  but  the 
point  did  not  arise  in  that  case,  and  prob- 
ably his  attention  was  not  particularly  di- 
rected to  it.  In  Absolon  v.  Maiks,  11  Q. 
B.  19,  the  defendant  and  four  others  made 
a  joint  and  several  note,  payable  to  their 
own  order  and  all  indorsed  it  in  blank, 
and  upon  an  action  the  declaration  in 
which  stated  that  the  defendant  made  his 
promissory  note  payable  to  his  own  order, 


CU.  XV.] 


INDORSEMENT. 


208-*209-*210 


It  is  sufficient  in  law  if  the  maker's  name  appears  in  the 
note ;  as,  "  I,  A.  B.,  promise,  &c."  But  signature  at  the  *bot- 
tom  is  so  usual,  that  the  want  of  it  would  taint  the  note  with 
suspicion,  (i) 

As  the  negotiable  bill  or  note  is  intended  to  represent  and 
take  the  place  of  money,  it  must  be  payable  in  money,  and  not 
in  goods  ;  (J)  and  although  it  has  been  held  in  this  country 
that  it  might  be  made  payable  in  bank-bills  which  were  *  uni- 
versally current  as  cash,  (k)  the  weight  of  authority  and  reason 
is  against  this,  and  in  favor  of  the  English  rule,  which  requires 
them  to  be  payable  in  money.  (/)  The  payment  must  not  rest 
upon  any  contingency  or  uncertain  event,  (m)  Hence  a  draft 
on  a  public  officer,  as  such,  is  not  negotiable,  because  it  is  pre- 
sumably drawn  against  a  contingent  public  fund,  (n)     But  if 


and  indorsed  the  s.anic  to  the  jilaintiflf  and 
I)roniised  to  pay  him  the  same  according 
to  its  tenor  and  cttcct,  Lord  Dcnman  de- 
cided that  tlie  note  having  been  indorsed 
was  thereby  made  certain  and  a  good 
promissory  note  under  the  statute.  See 
also  Edic  i'.  East  India  Co.  2  Burr,  121G  ; 
Woods  r.  Ridley,  11  lluniiih.  104;  War- 
<lens,  &c.,  of  St.  James  Churcii  r.  Moore, 

1  Carter  (I"'l).  289. 

(i)  Taylor  r.  Dobbins,  1  Stra.  .399;  El- 
liot V.  Cooper,  2  Lord  Raym.  1376;  3 
Kent's  Comm.  78.  ■ 

( /)  Jerome  v.  Whitney,  7  Johns.  321  ; 
Thomas  v.  Roosa,  7  Johns.  461  ;  Peav  r. 
I'ickett,  1  Nott  &  McCord.  254 ;  Rhodes 
r.  Lindly,  3  Hammond,  51  ;  Atkinson  c. 
Manks,  1  Cow.  691,  707;  Clark  v.  King, 

2  Ma.ss.  524  ;  Bunker  r.  Atbearn,  .■i5 
Maine,  364  ;  AVingo  v.  McDowell,  8  Rich. 
Law.  446.  So  the  bill  or  note,  in  order  to 
be  negotiable,  must  contain  a  promise  for 
the  payment  of  money  ouhi,  and  not  for 
the  payment  of  money  and  the  ])Ciform- 

•ance  of  some  other  act.  Austin  v.  Burns, 
'l6  Barb.  643.  Therefore,  where  a  note 
contained  a  promise  to  deliver  up  horses 
and  a  wharf,  and  also  to  pay  money  at  a 
particular  day,  it  was  held  not  to  be  with- 
in the  statute.  Martin  r.  Chauntry,  2 
Stra.  1271.  A  note,  however,  need  not 
contain  the  words  "promise  to  poy,"  in  or- 
der to  come  within  the  statute  ;  it  is  suffi- 
cient if  it  contain  words  which,  ufion  a 
rca.sonablc  constniction,  import  a  promise 
to  prnf.  Therefore,  where  a  note  con- 
tainecl  a  promise  by  the  maker  to  be  ac- 

VOL.  I.  19 


coiuitahh  to  A  or  order  for  100/.,  it  was 
held  to  be  within  the  statute.  Moiris  v. 
Lee,  2  Ld.  Raym.  1396,  8  Mod.  362,  1 
Stra.  629.  And  so  where  the  note  set 
forth  in  the  declaration  was,  "  I  acknowl- 
edge myself  to  be  indebted  to  A.  in  —  I., 
to  he  paid  on  demand,  for  value  received  ;  " 
on  demurrer  to  the  declaration,  the  court, 
after  solemn  argument,  held  that  this  was  a 
good  note  within  the  statute,  the  words 
"  to  bo  paid"  amounting  to  a  promise  to 
pay  ;  observing,  that  the  same  words  in  a 
lease  would  amount  to  a  covenant  to  pay 
rent.  Casborne  r.  Dutton,  Sehv.  N.  P. 
395.  See  also,  Ilvne  v.  Dewdnev,  11  E. 
L.  &  E.  400,  and  note;  2  Fost.  183. 

(k)  Keith  !•.  Jones,  9  Johns.  120; 
Judah  V.  Harris,  19  .Johns.  144;  Swet- 
land  V.  Creigh,  15  Ohio,  118. 

(/)  McCormick  v.  Trotter,  10  S.  & 
l?awle,  94  ;  Gray  r.  Donaboe,  4  Watts, 
400;  Hasbrookr'.  Palmer,  2  McLean,  10; 
Frv  r.  Rousseau,  3  McLean,  106;  Smith 
V.  Philadelphia  Bank,  14  Pcnn.  S.  R.  525  ; 
3  Kent's  Comm.  75. 

(m)  Alexanders  Thomas,  2  E.  L.  & 
!•:.  286 ;  Storm  v.  Stirling,  28  E.  L.  &  E. 
108;  Austin  v.  Burns,  16  Barb.  643; 
Dawkes  v.  Lord  De  Lorane,  3  Wils.  207  ; 
Beardesley  x\  Baldwin,  2  Stra.  1151; 
Roberts  v.  Peake,  1  Burr.  323  ;  Cook  v. 
Satterlee,  G  Cow.  108;  Van  Vacter  r. 
Elack,  1  S.  &  Mai-sh.  303;  Palmer  v. 
Pratt,  9  Moore,  358 ;  Dodge  r.  Emerson, 
34  Me.  96. 

(»i)Reeside  i;.  Knox,  2  Whart.  233. 

[217] 


•210- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


the  event  must  happen,  an  uncertainty  as  to  the  time  of  its 
happening  does  not  prevent  the  bill  or  note  from  being  nego- 
tiable, (o) 

Usually  bills  and  notes  express  the  consideration  by  saying 
''  for  value  received  ;  "  but  where  this  is  not  expressed  it  is  im- 
plied by  law,  both  as  to  the  makers  and  the  acceptors  or  in- 
dorsers  of  negotiable  bills  and  notes,  and  this  presumption  must 
be  rebutted  by  evidence  if  the  defence  rests  on  want  of  consid- 
eration, (p)  And  the  presumption  is  so  far  rebutted  as  to  cast 
the  burden  of  proof  on  the  holder,  by  evidence  making  the  con- 
sideration doubtful,  (pp) 

To  a  note  there  need  be  but  two  original  parties,  a  maker 
and  a  payee.  To  a  bill  there  are  three,  drawer,  drawee,  and 
payee.  The  drawee  is  not  bound  until  acceptance ;  and  then 
having  become  the  acceptor,  he  is  regarded  as  primarily  the 
promisor,  and  the  drawer  only  collaterally ;  and  the  drawer  is 
liable  in  very  much  the  same  way  as  the  indorser  of  a  note. 
We  shall  treat  at  this  time  only  of  negotiable  bills  and  notes, 
because  it  is  only  they  which  permit  new  parties  to  be  intro- 
duced by  indorsement,  who  have  all  the  rights  of  the  original 
parties.  Where  instruments  are  not  negotiable,  third  parties 
may  become  interested;  but,  if  they  are  to  be  regarded  as  new 
parties  at  all,  it  is  only  with  much  qualification. 


(o)  Cooke  V.  Colehan,  2  Stra.  1217; 
Andrews  v.  Franklin,  1  Stra.  24  ;  Evans 
V.  Underwood,  1  Wils.  262  ;  Dawkes  v. 
Lord  Lorane,  3  Wils.  207,  213;  Wash- 
ington County  Mutual  Insurance  Com- 
pany V.  Miller,  26  Vt.  77.  In  Seacord 
V.  Burling,  5  Denio,  444,  it  was  held 
tliat  an  agreement  in  writing  l)y  which  the 
•  subscrilier  to  it  promised  to  pay  another 
a  sum  of  money  on  demand  with  interest, 
and  added,  but  no  demand  is  to  be  made  as 

[218] 


lo7i(j  as  the  interest  is  paid,  was  not  a  prom- ' 
issory  note.  And  see  Richardson  v.  Mai-- 
tyr,  30  E.  L.  &  E.  36.5. 
'  (/))  Hatcli  V.  Trayes,  11  Ad.  &  Ell. 
702  ;  Grant  v.  Da  Costa,  3  M.  &  S.  351 ; 
Benjamin  v.  Tillman,  2  McLean,  213 ; 
Bristol  V.  Warner,  19  Conn.  7  ;  Poplewell 
v.  Wilson,  1  Stra.  264;  Lines  v.  Smith, 
4  Florida,  47. 

(pp)   Delano  v.  Bartlett,  6  Cush.  364. 
But  see  Fitch  v.  Redding,  4  Sandf.  130.  ^ 


CH.  XV.] 


INDORSEMENT. 


*211-*212 


♦SECTION    III. 


OF   INDORSEMENT. 


The  indorsement  of  a  bill  or  note  passes  no  property,  unless 
the  indorser  had  at  the  time  a  legal  property  in  the  note,  (q) 
And  therefore  a  married  woman  cannot  indorse  a  note  made 
payable  to  her  before  or  during  her  coverture,  (r)  Nor  does 
the  property  in  the  note  pass  by  indorsement,  if  the  indorsee 
knew  at  the  time  he  received  it  that  the  indorser  had  no  right 
to  make  the  transfer,  (s)  A  party  receiving  a  bill^  or  note  as 
agent,  or  for  any  particular  purpose,  and  exceeding  his  author- 
ity or  violating  his  duty,  may  nevertheless  pass  the  property  in 
the  note  to  a  bond  fide  holder,  (t)     But  *  no  assignee,  even  for 


(<l)  Mead  V.  Younfr,  4  Term,  28.  In 
this  case  it  was  held  that  in  an  action  hy 
the  indorsee  a<j:ainst  the  acceptor  of  a  bill 
of  cxchanfje,  drawn  payable  to  "  A.  or 
order,"  it  is  competent  to  the  defendant 
to  f^ive  evidence  that  the  person  who  in- 
dorsed to  tlie  plaintiff  was  not  the  real 
payee,  thoufih  he  be  of  the  same  name, 
and  tlioujih  there  be  no  addition  to  the 
name  of  tlie  payee  on  the  bill.  The  in- 
dorsement and  delivery  must  l)Oth  lie 
made  by  the  person  then  having  the  legal 
interest  in  the  note ;  and  if  a  note  is  in- 
dorsed by  tiie  payee,  and  retained  in  his 
possession,  and  after  his  death  is  delivered 
by  his  executor  to  the  pei-son  to  whom  it 
was  indoi"sed,  the  title  to  the  note  is  not 
thus  transfened.  Bromage  v.  Lloyd,  1 
Exch.  K.  31  ;  Lloyd  c.  Howard,  1  E.  L. 
&  E.  227,  note;  Awde  v.  Dixon,  ."i  E.  L. 
&E.  512;  Prcscott  !".  Brinslev,  6  Cash. 
233;  Clark  v.  Boyd,  2  llam'mond,  56; 
Clark  I'.  Sigourney,  17  Conn.  511.  See 
also  Bay  v.  Coddington,  5  Johns.  Ch.  54 ; 
Lawrence  i'.  Stonington  Bank,  6  Conn. 
.521. 

(r)  Savage  c  King,  17  Afaine,  301. 
Sec  Barlow  v.  Bishop,  1  East,  432  ;  Com- 
monwealth V.  Manky,  12  I'ick.  173. 

(.s)  Sec  Roberts  v'  Eden,  1  Bos.  &  Pul. 
398;  Stoddard  v.  Kimball,  6  Cush.  470. 

(0  Thus  whei-e  the  drawer  of  a  l)ill  of 
exchange,  which  had  been  accepted,  wrote 


his  name  across  the  back  of  it,  and  deliv- 
ered it  to  A  to  get  it  discounted,  and  A 
while  the  bill  was  yet  running  deposited  it 
with'  B,  as  security  for  money  advanced 
to  himself,  but  without  any  fraud  in  B, 
this  was  held  to  be  a  valid  indorsement 
from  the  drawer  to  B.  Palmer  r.  Rich- 
ards, 1  E.  L.  &  E.  529.  In  this  case, 
Parke,  Baron,  said:  "I  think  this  was  a 
perfectly  good  indorsement  from  Edward.s 
to  Tingey.  If  the  allegation  in  tlie  dec- 
laration were  that  there  had  been  an  in- 
dorsement of  this  bill  from  Edwards  to 
Brown,  it  would  be  a  question  of  fact 
whether  the  writing  of  Edwards's  name 
on  the  back  of  the  instrument,  accompa- 
nied by  a  delivery  of  it  to  Brown,  meant 
to  transfer  the  property  in  the  bill  to  him, 
so  a.s  to  enable  him  to  indorse  it  as  his 
own,  or  merely  to  hand  it  over  to  another 
party.  As  to  the  case  which  has  been 
cited  of  Lloyd  v.  Howard,  I  think  tiie  de- 
cision there  was  perfectly  right,  and  an 
authority  for  saying  that  there  was  no  in- 
doi-scment  from  Edwards  to  Brown ;  for 
the  mere  writing  of  a  man's  name  on  the 
back  of  an  instrument  is  not  enough  for 
that  pur))Ose ;  it  is  oidy  one  act  towards 
it;  and  Lloyd  r.  Howard  shows  that  the 
writing  the  name  and  handing  the  instru- 
ment to  a  third  person,  without  any  in- 
tention to  pass  the  property  in  it  to  that 
person,  is  insufficient  to  constitute  an  in- 

[  -^1^  ] 


212- 


THE   LAW    OF   CONTRACTS. 


[book  I. 


good  consideration,  can  hold  the  bill  or  note,  if  he  knew  or  had 
direct  and  sufficient  means  of  knowing  that  the  transfer  of  the 
same  to  him  was  wrongful  or  unauthorized.  The  assignor 
may  have  held  the  bill  or  note  by  indorsement  to  him ;  and  as 
an  indorsement  may  always  be  restricted  or  conditioned  at  the 
pleasure  of  the  indorser,  the  assignor  was  bound  to  obey  such 
restriction ;  and  an  assignee  by  indorsement,  who  knows  that 
the  indorsement  was  made  in  disregard  of  such  restriction,  has 
no  property  in  the  bill  or  note,  (w)  If  a  negotiable  bill  or  note 
be  indorsed  for  consideration,  so  that  the  whole  property  passes 
to  the  indorsee,  its  negotiable  quality  passes  with  it;  and  it  is 
said  that  this  negotiability  cannot  be  restrained  by  the  indorse- 
ment. But  where  the  indorsement  is  without  consideration, 
and  is  intended  merely  to  give  the  indorsee  authority  to  receive 
money  for  the  indorser,  there  the  restriction  operates ;  and  if 
such  indorsee  again  indorses  it  over,  the  second  indorsee  can- 
not hold  it,  because  the  first  indorsement  gave  him  notice  that 
the  first  indorsee  had  no  power  to  transfer  the  note,  (v)  And  if 
a  note  is  once  indorsed  in  blank  it"  is  thereafter  transferable  by 
mere  delivery  so  long  as  the  indorsement  continues  blank,  and 
its  negotiability  cannot  be  restricted  by  subsequent  special  in- 
dorsements, but  the  holder  may  strike  them  all  out  and  recover 


dorscment  to  that  person.  But  if  a  man 
writes  his  name  on  the  back  of  a  bill  of 
exchange  in'order  that  it  may  be  negotia- 
ted, and  any  peison  afterwards  receives  it 
for  value,  it  does  not  lie  in  the  indorser's 
mouth  to  say  that  the  bill  was  not  in- 
dorsed to  that  ])erson  ;  and  it  has  been 
the  established  rule  ever  since  the  case  of 
Collins  V.  Martin,  1  B.  &  T.  648,  tliat  any 
person  who  thus  takes  a  bill  for  value  is 
the  indorsee  of  it.  I  think  that  Edwards, 
by  putting  his  name  on  the  back  of  this 
bill,  and  ]jutting  it  into  the  hands  of  his 
agent,  with  authority  to  represent  him, 
who  hands  it  over  to  a  tiiird  party,  ought 
not  to  be  permitted  to  say  that  he  did  not 
indorse  it  to  any  person  who  took  it  for 
vahie  from  his  agent.  The  cfuestion, 
thcrcfore,  here  is,  whether,  there  being  no 
proof  of  any  fraud  in  Tingey,  he  may  not 
be  considered  a  holder  of  the  bill,  and 
Edward.s,  as  having  indorsed  it  to  him. 
The  case  is  distinguishable  from  Lloyd  v. 
Howard  in  this,  tiiat  if  tins  bill  were  in- 
dorsed to  Brown  solely  witli  the  view  to 

[220] 


enable  him  to  pass  it  away,  and  not  to 
treat  him  as  owner  of  the  bill  himself,  no 
property  passed  from  Edwards  to  him  ; 
and  if  such  property  bad  been  alleged, 
the  case  of  Lloyd  v.  Howard  would  ap- 
ply. But  that  decision  does  not  hold 
with  respect  to  a  third  person  who  re- 
ceived it  from  the  agent  whom  Edwards 
intrusted  with  it,  and  who  has  paid  value 
for  it."  See  also,  Marston  i\  Allen,  8  M. 
&  W.  494;  Andrews  v.  Bond,  16  Barb. 
633  ;  Smith  v.  Braine,  3  E.  L.  &  E.  379 ; 
Moody  V.  Threlkeld,  13  Georgia,  555  ; 
Stoddard  v.  Kimball,  6  Cush.  469. 

(»)  Ancheri'.  Bank  of  England,  Doug. 
637  ;  Sigourney  r.  Llovd,  8  B.  &.  C.  622, 
S.  C.  3  M.  &  P.  229,  5  Bing.  525 ;  Rob- 
ertson V.  Kensington,  4  Taunt.  30.  See 
also  Bolton  r.  ruller,  1  Bos.  &  Pull.  539  ; 
Ramsbotham  v.  Cator,  1  Starkie,  228 ; 
Savage  v.  Altlren,  2  Stark.  232. 

(r)  Edie  ?'.  East  India  Co.  2  Burr. 
1216,  per  [Vilmot,  J.,  Wilson  v.  Holmes, 
5  Mass.  543 ;  Power  v.  Einnie,  4  Call, 
411,  per  Roane,  J. 


ClI.  .XV.]  INDORSEMENT.  *213 

under  the  blank  indorsement,  (vv)  "Where  one  has  acquired  a 
bill  by  indorsement,  bond  fide,  he  may  hold  it  and  recover  upon 
it,  although  earlier  parties  knew  that  it  was  transferred  wrong- 
fully or  without  authority,  (iv) 

If  a  negotiable  bill  or  note  which  is  open  to  any  defence  that 
can  be  made  only  against  a  holder  with  knowledge  or  notice, 
pass  by  indorsement,  for  consideration,  to  a  holder  without 
knowledge  or  notice,  against  whom  the  defence  cannot  be 
made,  and  this  holder  indorse  it  over  for  consideration  to  a  party 
who  has  knowledge  or  notice  of  the  defence,  such  indorsee  may 
nevertheless  recover  on  the  note,  because  he  stands  on  the  right 
of  his  indorser.  The  party  bound  to  pay  it  to  the  holder  with- 
out notice  is  not  injured  by  being  bound  to  pay  it  to  his  in- 
dorsee; and  the  innocent  holder  has  not  only  the  right  of 
enforcing  payment,  but  of  transferring  the  note  by  indorsement ; 
and  with  it  all  his  rights,  (ivw) 


♦SECTION    IV. 

OF   INDORSEMENT   AFTER   MATURITY. 

Bills  and  notes  are  usually  transferred  by  indorsement  before 
they  are  due.  But  they  may  be  so  transferred  after  they  are 
due,  and  before  they  are  paid.  There  is,  however,  a  very  im- 
portant difference  between  the  effect  of  the  transfer  of  a  bill  or 
note  before  its  maturity,  and  that  of  such  transfer  when  the  bill 
or  note  is  overdue.  The  bond  fide  holder  of  a  bill  by  indorse- 
ment before  maturity  takes  it  subject  to  no  equities  existing 
between   his  assignor  and  the  promisor  which  are  not  indicated 

{vv)    Smith    V.    Clarke,  1    Esp.    180,  dorsccs  miglit  not  pay  a  valuable  consiil- 

Pcake's  Cases.  225,  jicr  Lord  Kcnyon  ;  cra'tion.yct  if  tlic  la.^t  indorsee  pave  money 

Mitehcll  r.  Fuller,  15  I'cnn.  268.  for  it,  it  "is  a  good  note  as  to  him,  unless 

(w)    And   this   altliouirli    his   indorser  there    should    be   some   fraud   or  equitv 

aecpiired  the  bill  or  note  l>y  frau<l.     Salt-  against  him  apjiearini;  in  the  case." 

marsh  r.  Tnthill,  13  Ala.  .390.     See  also,  {inr)   Iliuseall  v.  Whitmore,  10  Maine, 

llaly  V.   Lane,  2   Atk.  181,   where  Lord  102;  Tiiomus  v.  Newton,  2  C.  v^  P.  COG  ; 

Uardwickc    i»    reported    to    have    said  :  Solomons  v.  BaTik  of  Englaiul,    13  Last. 

"  Where  there  is  a  negotiable  note,  and  it  135  ;  Smith   v.  Iliseock,   14  Maine,  449  ; 

eomes  into  the  hands  of  a  third  or  fourth  Chalmers  v.  Lanion,  1  Camp.  383. 
indorsee,  though  some  of  the  former  in- 

19*  [221] 


214* 


THE    LAW    OF    CONTRACTS. 


[book  I. 


on  the  face  of  the  note,  (x)  It  was  once  much  questioned 
whether  he  who  received  a  note  under  circumstances  of  sus- 
picion was  not  bound  to  ascertain  for  himself,  and  at  his  own 
peril,  that  the  note  came  rightfully  into  his  hands  ;  and  there- 
fore a  promisor  might  defend  against  the  note,  by  showing  that 
he  had  lost  it,  or  that  it  was  stolen  from  him,  or  by  any  other 
similar  defence,  showing  also  that  this  might  have  been  ascer- 
tained by  the  holder  before  receiving  the  note,  {y)  But  the 
weight  of  recent  authority  is  decidedly  in  favor  of  the  rule  that 
such  holder  is  entitled  to  the  benefit  of  the  note,  unless  he  is  a 
wilful  party  to  the  wrong  by  which  it  comes  into  his  hands,  or, 
perhaps,  has  been  guilty  of  such  negligence  as  amounts  to  con- 
structive fraud,  (z)  For  even  gross  negligence  alone  *would 
not  deprive  him  of  his  right,  (a)  The  law  is  otherwise,  however, 
if  the  bill  or  note  were  transferred  to  him  when  overdue,  (aa). 
It  comes  to  him  then  discredited;  he  is  put  upon  his  guard ; 
and,  although  he  pays  a  full  consideration  for  it,  he  receives 
nothing  but  the  title  and  rights  of  his  assignor.  Such  a  bill  or 
note  can  no  longer  represent  a  distinct  and  definite  credit,  or 


(x)  Brown  v.  Davies,  3  Term,  82, 
Buller,  J.  ;  Hall  v.  Wilson,  16  Barb. 
548 ;  Fletclier  r.  Giishcc,  32  Maine, 
587  ;  Walker  r.  Davis,  33  id.  516  ;  Gwynn 
I}.  Lee,  9  Gill,  138  ;  Kohhnan  w.  Ludwig, 
5  Louis.  Ann.  33.  And  the  doctrine  of 
lis  pendens  is  held  not  to  apply  to  nego- 
tiable notes.  Winston  v.  Westfeldt,  22 
Ala.  760. 

{y)  In  Gill  v.  Cubitt,  3  B.  &  C.  466, 
Avhere  a  bill  of  exchange  was  stolen  during 
the  night,  and  taken  to  the  office  o.f  a  dis- 
count broker  early  in  the  following  morn- 
i'lg)  by  a  person  whose  features  were 
known,  but  whose  name  was  unknown  to 
the  broker,  and  the  latter,  being  satisfied 
with  the  name  of  the  acceptor,  discounted 
the  bill,  according  to  his  usual  practice, 
without  making  any  inquiry  of  the  person 
who  brought  it ;  it  was  hdd  that,  in  an 
action  on  the  bill  by  the  broker  against  the 
acceptor,  the  jury  were  properly  directed 
to  find  a  verdict  for  the  defendant,  if  they 
thought  that  the  plaintiti"  had  taken  the 
bill  under  circumstances  which  ought  to 
bave  excited  the  suspicion  of  a  prudent 
and  careful  man  ;  and  they  having  found 
;for  the  defendant,  the  court  refused  to  dis- 

[  222  ] 


turb  the  verdict.  Down  v.  Hailing,  4  B. 
&  C.  330. 

(z)  Miller  v.  Race,  1  Burr.  452 ;  Law- 
son  V.  Weston,  4  Esp.  56 ;  Goodman  i\ 
Harvey,  6  N.  &  M.  372  ;  Cone  v.  Baldwin, 
12  Pick.  545;  Wheeler  v.  Guild,  20  id. 
545  ;  Smith  v.  Mechanics  and  Traders 
Bank,  6  Louis.  Ann.  610. 

(«)  "  Gross  negligence  may  be  evidence 
of  mala  fides,  but  is  not  the  same  thing. 
We  have  shaken  off  the  last  remnant  of 
the  contrary  doctrine."  Per  Lord  Denman, 
Goodman  v.  Harvey,  4  Ad.  &  El.  870,  6 
N.  &  M.  372.  It  is  a  question  for  the  jury 
whether  the  party  taking  the  bill  was 
guilty  of  bad  faith.  See  Cunliffe  v.  Booth, 
3  Bing.  N.  C.  821.  Li  Crook  v.  Jadis,  5 
Bar.  &  Ad.  909,  Patteson,  J.,  says  :  "  I 
never  could  understand  what  is  meant  by 
a  party's  taking  a  bill  under  circumstances 
which  ought  to  have  excited  the  suspicion 
of  a  prudent  man."  But  the  authority  of 
these  cases  is  denied  inPringle  v.  Phillips, 
5  Sandf.  157,  and  an  opposite  doctrine 
strongly  maintained  and  decided. 

(aa)  Chalmers  v.  Lanion,  1  Campb. 
383  ;  Thomas  v.  Newton,  2  C.  &  P.  606  ; 
Smith  V.  Hiscock,  14  Me.  449  ;  Hascall 
V.  Whitmore,  19  id.  102. 


CH.  XV.] 


INDORSEMENT. 


'215 


money  to  be  paid  at  a  certain  period  ;  and  as  it  no  longer 
answers  the  purpose  or  performs  the  functions  of  negotiable 
paper,  it  no  longer  shares  the  privileges  of  such  instruments. 
And  it  is  therefore  said  that  any  defence  which  might  be  made 
against  the  assignor  may  be  made  available  against  the  as- 
signee, (b)  This  rule  needs,  however,  some  qualifications.  It 
is  said  by  high  authorities,  and  on  good  reason,  that  the  defence 
must  arise  from  the  note  itself,  or  the  transaction  in  which  the 
note  originated,  and  not  from  any  collateral  matter,  (c) 

*As  between  the  orii^inal  parlies  to  negotiable  paper  the  con- 
sideration may  be  inquired  into ;  and  so  it  may  as  between 
indorser  and  indorsee,  {d)  But  an  action  by  an  indorsee  against 
the  maker  cannot  be  defeated  by  showing  that  no  consideration 
passed  to  the  maker  from  the  payee  and  indorser.  (e)  It  is 
sometimes  said  that  such  defence  is  good  against  the  indorsee 


(b)  Brown  v.  Davies,  3  Term,  80; 
Reck  V.  Koblcy,  1  II.  Bl.  89,  n.  (a); 
Howard  v.  Ames,  3  Mete.  308 ;  Mackay 
r.  Holland,  4  id.  69  ;  Totter  v.  Tvler,  2 
id.  .58  ;  MeNeiU  v.  MeDonald,  1  IliU's  So. 
Car.  1  ;  Mosteller  v.  Bosli,  7  Ire.  Ecj.  39  ; 
C'onnery  I'.  Kendall,  5  Louis.  Ann.  515; 
Sawver  v.  IIoovcv,  id.  153;  Lancaster 
Bank  v.  Woodward,  18  Penn.  357;  Clav 
r.  Cottrell,  id.  408.  —  The  burden  of 
l>rovin;;,  liowevcr,  that  the  note  wa.s  in- 
dorsed after  it  was  overdue,  in  order  to  let 
in  iii.s  e(iuities,  is  on  the  defendant  ;  for 
the  ])resnin|)tion  is  that  the  indorsement 
was  made  at  or  soon  after  the  date  of  tlie 
note,  or  at  least  before  its  maturity. 
Burnliam  v.  Wood,  8  N.  Ilanip.  334"  ; 
Bnrham  v.  Webster,  19  Maine,  232; 
Kaujjjer  r.  Cary,  1  Met.  309  ;  Cain  r. 
Spaiui,  I  MeMnllan,  258  ;  Wasldinrn  r. 
Kanisdell,  17  Venn.  299.  —  And  this  bur- 
den is  no^  diseliarj;cd  by  proof  that  the 
note  was  transferred  and  ilelivered  to  the 
])lainti(V  before  it  was  dishonored,  but  was 
not  indorsed  until  afterwards,  llanj^er  r. 
Cary,  1  Met.  309.  —  Susi)icious  cireum- 
staiues,  however,  may  rebut  tliis  presump- 
tion. Snvder  v.  liilev,  G  BaiT,  165  ;  Tains 
V.  Wav,  i3  Penn.  222. 

(e)  Burrough  v.  Moss,  10  B.  &C.  558  ; 
Whitehead  v.  Walker,  10  M.  &  W.  696  ; 
Carruthers  v.  West,  11  Q.  B.  143; 
llu;;hes  c.  Large,  2  BaiT,  103;  Cumber- 
land Bank  r.  Ilann,  3  Harrison,  223  ; 
Chandler    v.   Drew,   6   N.   Hamp.  469 ; 


Robinson  v.  Lyman,  10  Conn.  31  ;  Brit- 
ton  r.  Bishop,  11  Verm.  70;  Eoliertson 
V.  Brcedlove,  7  Porter,  541  ;  Tuseumbia 
K.  K.  Co.  i;.  Kiiodes,  8  Ala.  206  ;  Tinslcy 
V.  Bcall,  2  Georgia,  134 ;  Ilarkins  v. 
Slioup,  2  Cart.  (Ind.)  342.  In  Massachu- 
setts and  South  Carolina,  all  set-otl's  be- 
tween the  ori<;inal  ])arties  existin<2:  at  the 
time  of  the  transfer  of  tlic  title  are  allowed. 
Sargent  )'.  vSouthgate,  5  Pick.  312  ;  Nixon 
V.  English,  3  McCord,  549  ;  Perry  v.  Mays, 
2  Bailey,  354  ;  Cain  v.  Spann,  i  McMul- 
lan,  258.  So  in  Maine.  Bnrnham  v. 
Tucker,  18  Maine,  179  ;  Wood  v.  Warren, 
19  id.  23.  —  In  New  York  the  point  was 
considered  doubtful  in  Miner  v.  Hovt,  4 
Hill,  193,  197.  — In  Massachusetts,  how- 
ever, equities  arising  between  the  original 
parties  after  the  transfer  of  title,  but  before 
notice  to  the  maker,  cannot  be  set  off  as 
against  the  indorsee.  lianger  r.  Cary,  1 
Met.  369  ;  Baxter  r.  Little,  6  id.  7. 

((/)  I)e  Bras  r.  Forbes,  1  Esp.  117  ; 
Lickbarrow  r.  Mason,  2  Term  Kep.  71, 
))er  Ashliui'st,  J. ;  Abbott  v.  Hendricks,  1 
M.  &  Gr.  791  ;  Ilerrick  r.  Carman,  10 
Johns.  224  ;  Hill  r.  Ely,  5  Serg.  &  Uawle, 
36."'.  ;  Clement  r.  Ueppard,  15  Peim.  S.  li. 
Ill;  Jolmson  ?•.  Martinus,  4  Hals.  144; 
Hill  V.  Buckminster,  5  Pick.  391  ;  Bram- 
hall  V.  Beckett,  31  Maine,  205  ;  Fisher  r. 
Salmon,  1  California,  413. 

{<-)  Perkins  v.  Cliallis,  1  N.  Hamp.  254  ; 
Waterman  r.  Barratt,  4  Haning.  311. 

[223] 


216' 


THE   LAW   OF   CONTRACTS. 


[book  I. 


when  the  indorsee  took  the  paper  with  notice  of  the  want  of 
consideration,  or  of  any  circumstances  which  would  have 
avoided  the  note  in  the  hands  of  the  indorser.  (/)  But  the  case 
of  an  accommodation  note,  whether  made  or  indorsed  for  the 
benefit  of  the  party  to  whom  the  maker  or  indorser  intends  to 
lend  his  credit,  is  an  exception  to  this  rule.  'If  A  makes  a  note 
to  B  or  his  order,  intending  to  lend  B  his  credit,  and  gives  it  to 
B  to  raise  money  on,  B  cannot  sue  A  on  that  note;  but  if  he 
indorses  it  to  C,  who  discounts  the  note  in  good  faith,  knowing 
it,  however,  to  be  an  accommodation  note  and  without  valuable 
consideration,  C  can  nevertheless  recover  the  note  from  A.  The 
maker  may,  therefore,  have  a  defence  against  the  payee  which 
he  cannot  have  against  an  indorsee  who  has  knowledge  of  that 
defence,  (g-)  But  this  is  true  only  where  the  consideration  paid 
by  the  indorsee  may  be  regarded  as  going  to  the  maker,  in  the 
same  manner  that  it  would  if  the  payee  had  been  promisor,  and 
the  maker  had  signed  the  note  as  his  surety.  The  indorsers  of 
accommodation  paper  are  not,  however,  so  far  sureties  as  to 
have  a  claim  of  contribution  against  each  other,  {h)  In  general, 
accommodation  notes  or  bills  are  now  governed  by  the  same 
rules  as  negotiable  paper  for  consideration,  (i) 

*On  the  ground  that  negotiable  paper  is  intended  only  for 
business  purposes,  and  has  its  peculiar  privileges  only  that  it 
may  more  perfectly  perform  this  function,  it  has  been  held  that 
one  who  takes  a  negotiable  note,  even  before  its  maturity,  but 
only  in  payment  of  or  as  security  for  an  antecedent  debt,  with- 
out giving  for  it  any  new  consideration,  does  not  take  it  in  the 


(/)  Steers  V.  Lashley,  6  Term  R.  61  ; 
Wyat  V.  Bulmcr,  2  Esp.  538 ;  Perkins  v. 
Challis,  1  N.  Hamp.  254 ;  Brown  v. 
Davies,  3  Term,  80 ;  Down  v.  Hailing,  4 
B.  &  C.  330 ;  Aycr  v.  Ilutchiiis,  4  Mass. 
370  ;  Thompson  v.  Hale,  6  Pick.  259  ; 
Littell  V.  Marshall,  1  Pobinson's  Louisiana 
Hep.  57. 

(g)  Thompson  v.  Shepherd,  12  Met. 
311  ;  Smith  v.  Knox,  3  Esp.  46  ;  Brown 
V.  Mott,  7  Johns.  361  ;  Grant  v.  Ellicott, 
7  Wend.  227.  Molson  v.  Hawley,  1 
Blatch.  409 ;  Lord  v.  The  Ocean  Bank, 
20  Pcnn.  St.  Reps.  384  ;  Kemp  v.  Balls, 
10  Exch.  605.     And  this  is  so,  even  if  the 

[224] 


indorsee  took  the  bill  after  it  became  due. 
Charles  v.  Marsden,  1  Taunt.  224 ;  Car- 
nitliers  r.  West,  11  Q.  B.  143;  Renwick 
V.  Williams,  2  Maryl.  356. 

(/()  Aiken  v.  Barkley,  2  Speers,  747. 

(/)  Eentum  v.  Pocoek,  5  Taunt.  192; 
Bank  of  Montgomery  v.  Walker,  9  S.  & 
R.  229  ;  MuiTay  v.  Judah,  6  Cowen,  484  ; 
Clopper  V.  Union  Bank  of  Maryland,  7 
Har.  &  Johns.  92 ;  Church  v.  Barlow,  9 
Pick.  547  ;  Grant  v.  Ellicott,  7  Wend. 
227  ;  Marr  v.  Johnson,  9  Yerg.  1  ;  Per 
Wilde,  J.,  Com.  Bank  v.  Cunningham,  24 
Pick.  274.  Sec  also,  Parks  v.  Ingram,  2 
Foster,  283. 


CH.  XV.] 


INDORSEMENT. 


-216 


way  of  business,  and  is  not  a  bond  fide  holder ;  and  that  he 
therefore  holds  the  note  subject  to  all  equitable  defences.  This 
doctrine  rests  upon  adjudications  and  opinions  of  great  weight; 
but  it  is  also  denied  by  very  high  authorities;  indeed  by  the 
highest  in  this  country,  the  Supreme  Court  of  the  United 
States,  who  have  decided  that  a  preexisting  debt  of  itself,  and 
without  any  strengthening  circumstances,  is  of  itself  a  suf- 
ficient consideration.  But  it  has  nevertheless  been  held  since 
that  decision,  by  courts  entitled  to  great  respect,  that  the  doc- 
trine of  the  Supreme  Court  is  erroneous  and  untenable.  It 
must  be  admitted  that  the  law  on  this  subject  is  in  a  very  un- 
settled state ;  but  it  may  be  supposed  that  in  this  country  the 
authority  of  the  Supreme  Court  will  generally  prevail.  ( j) 


( /)  This  question  has  not  yet  received 
a  distinct  adjudication  in  Jnjiland,  and 
tiic  foliowinp  cases,  in  which  it  has  inci- 
dentally arisen,  leave  in  doubt  what  ihc 
inclination  of  judicial  opinion  is.  l?ra- 
mah  V.  Roberts,  1  Bing.  N.  C.  469 ;  Per- 
cival  V.  Frampton,  2  C.  M.  &  R.  180; 
Crofts  V.  Beale,  5  E.  L.  &  E.  408.  The 
decisions  in  this  country  have  turned 
chiefly  upon  the  question  whether  the 
transfer  be  for  a  valid  consideration.  The 
weifrht  of  authority  i.s,  that  the  transfer  of 
a  nejrotiable  instrument  in  payment  of  a 
debt  already  due,  or  where  upon  the  faith 
of  such  transfer  other  security  is  relin- 
(luished,  or  indulgence  given,  is  for  a  valid 
consideration,  and  entitles  the  holder  to 
protection.  Smith  v.  Van  Loan,  16 
Wend.  659  ;  Bank  of  Salina  ?-.  BaI)cock, 
21  Wend.  499;  Bank  of  Sanduskv  v. 
Scoville,  24  Wend.  115;  Stalker  7'.'Mc- 
Donald,  6  Hill,  93;  Marshall,  C.  J., 
Coolidge  r.  Pavson,  2  Wheat.  66,  73  ; 
Swift  r.  Tvson,'l6  Peters,  1.5;  Williams 
V.  Little,  I'l  N.  H.  66  ;  Homes  r.  Smyth, 
16  Maine,  177;  Norton  v.  Waitc,  20 
Maine,  175;  Adams  v.  Smith,  35  Maine, 
324;  Bni.^h  v.  Scribncr,  11  Conn.  388; 
Bostwick  V.  Dodge,  1  Doug.  (Mich.)  413  ; 
Reddick  v.  Jones,  6  Ired.  107  ;  Kimbro  v. 


Lytle,  10  Yerger,  417  ;  Woomley  v. 
Lowry,  1  Humph.  470 ;  Kirkpatrick  v. 
Muirhead,  16  Penn.  123;  Greneaux  v. 
Wheeler,  6  Tex.  515.  Contra,  Rosa  v. 
Brothcrson,  10  Wend.  85.  But  see  Smith 
V.  Van  Loan,  supra ;  Ontario  Bank  v. 
Worthington,  12  Wend.  593.  In  the  fol- 
lowing cases  it  is  held  that,  where  the 
transfer  is  merely  for  the  sake  of  collateral 
securitij,  there  is  no  valid  consideration, 
and  the  holder  is  not  entitled  to  protection 
against  the  equities.  Bay  v.  Coddington, 
5  Johns.  Ch.  54,  S.  C,  20  Johns.  637  ; 
Pavne  v.  Cutler,  13  Wend.  605;  Stalker 
V.  McDonald,  6  Hill,  93;  Clark  v.  Elv,  2 
Sand.  Ch.  166;  Mickles  r.  Colvin,  4 
Barb.  Sup.  Ct.  304  ;  Fenl)y  v.  Pritchard, 
2  Sand.  Suj).  Ct.  151  ;  Youngs  v.  Lee,  18 
Barb.  187;  Kirki)atrick  v.  Muirhead,  16 
Penn.  123;  Bcrtrand  v.  Barkman,8  Eng. 
(Ark.)  1.50;  Jenncss  r.  Bean,  10  N.  H. 
266 ;  Prentice  r.  Zane,  2  Gratt.  2G2 ; 
Bramhall  v.  Bccket,  31  Maine,  205 ; 
Contra,  Swift  v.  Tyson,  16  Petei-s,  15; 
Chicopce  Bank  r.  "Chapin,  8  Met.  40; 
Stevens  v.  Blanchard,  3  Cush.  168;  Val- 
ette  i:  Mason,  1  Smith  (Ind.)  89,  S.  C. 
1  Carter,  288  ;  Pugh  r.  Durfee,  1  Blatch. 
412;  Atkinson  v.  Brooks,  26  Vt.  569. 

[225] 


217* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


*SECTION    V. 


NOTES    ON   DEMAND. 


Bills  and  notes  payable  on  demand  are  in  one  sense  always 
overdue ;  they  are  not,  however,  so  treated  until  payment  has 
been  demanded  and  refused  ;  then  they  become  like  bills  on 
time  which  have  been  dishonored ;  and  to  bring  them  within 
this  rule  there  should  be  evidence  of  such  demand  and  refusal. 
But  there  is  this  difference  between  a  note  on  time  and  a  note 
on  demand ;  a  note  on  time,  after  that  time  has  passed,  is  cer- 
tainly dishonored,  and  an  indorsee  must  know  it.  But  there  is 
no  time  when  a  note  on  demand  must  have  been  dishonored, 
and  none  therefore  when  an  indorsee  coufd  not  have  received  it 
without  that  knowledge.  Nevertheless  it  seems  reasonable  to 
say  that  if  a  note  which  was  payable  at  any  day,  has  not  been 
paid  for  very  rftany  days,  it  may  fairly  be  presumed  to  have 
been  dishonored,  and  an  indorsee  after  this  lapse  of  time,  may 
be  held  to  have  had  a  sufficient  notice  of  its  dishonor;  and 
many  American  authorities  hold  this  view,  [k)  But  it  is  still 
true,  that  the  law  does  not  presume  that  they  were  made  with 
the  intention  of  immediate  demand  and  payment.  And  where 
a  note  on  demand  is  indorsed  within  a  reasonable  time  after  its 


(k)  If  not .  negotiated  until  a  long  time 
after  they  are  made,  they  are  subject  to  all 
the  equities  in  the  hands  of  an  indorsee, 
as  tliey  would  be  in  the  possession  of  the 
payee.  Furman  v.  Hasiiin,  2  Caines, 
369;  Hendricivs  v.  Judah,  1  Johns.  319; 
and  two  months  and  a  half  after  a  note 
was  dated  was  held  sufficient  to  let  in  the 
equities  of  the  malcer  against  the  payee,  in 
an  action  by  the  indorsee.  Losee  v.  Dun- 
kin,  7  Jolms.  70.  Under  different  cir- 
cumstances, a  period  of  five  months  after 
a  note  was  dated  was  held  not  sufficient 
for  this  ]mrpose.  Sandford  v.  Micklcs,  4 
Johns.  224.  So  seven  days  has  been  held 
not  to  be  sufficient.  Thurston  v.  Mc- 
Kown,  6  Mass.  428.  Ayer  v.  Hutchins, 
4  Mass.  370.  In  this  case  the  rule  con- 
cerning notes  payable  on  demand  was 
thus  laid  down  by  Parsons,  C.  J. :  —  "A 

[226] 


note  payable  on  demand  is  due  presently. 
In  tiiis  case  the  note  had  been  due  eight 
months  before  it  was  indorsed,  a  length  of 
time  sufficient  to  induce  suspicions  that 
the  promisors  would  not  pay  it,  and  to 
cause  some  inquiry  to  be  made,  whether 
it  had  in  fiict  been  dishonored,  or  why 
payment  had  not  been  made.  If  there 
was  no  other  circumstance,  this  would  be 
a  good  reason  to  let  the  defendants  into 
any  defence  which  could  legally  be  made 
by  them,  if  Page  [the  payee  and  indorser], 
were  the  plaintiff."  In  England  the 
principle  that  a  note  payable  on  demand 
may  become  discredited  by  mere  lapse  of 
time  is  not  adopted.  Brooks  v.  Mitchell, 
9  M.  &  W.  15;  Barough  v.  White,  4  B. 
&  C.  325 ;  Gascoyne  v.  Smith,  1  McC  & 
Y.  348. 


CH.  XV.] 


INDORSEMENT. 


•218 


(late,  the  indorsee  has  all  the  rights  of  an  indorsee  of  a  negotia- 
ble note  on  time  where  the  indorsement  was  made  before  ma- 
turity; but  what  this  reasonable  time  shall  be  must  depend 
upon  the  facts  of  the  case.  It  is  not  determined  by  any  posi- 
tive rule,  (l)  Checks  on  bankers,  for  instance,  should  *be  pre- 
sented at  once  ;  and  the  rule  as  to  overdue  notes  is  applied  with 
more  strictness  to  them,  (m) 

A  bill  once  paid  by  the  acceptor  can  no  longer  be  negotiated ; 
but  until  paid  by  him  it  is  capable  of  indefinite  negotiation.  {71) 
If  paid  in  part  it  may  be  indorsed  as  to  the  residue.  But  it 
cannot  be  indorsed  in  part ;  (0)  and  if  it  be  indorsed  in  part,  and 
is  afterwards  indorsed  by  the  same  indorser  to  the  same  in- 
dorsee for  the  remaining  part,  this  is  not  a  good  indorsement,  (p) 

The  holder  of  a  bill  or  note  payable  to  bearer,  or  of  one  pay- 
able to  some  payee  or  order  and  indorsed  in  blank,  may  trans- 


(/)  The  question  of  reasonable  time, 
within  wliich  a  note  due  on  demand  must 
he  indorsed  after  it  is  made,  in  order  to 
shut  out  any  equities  between  the  maker 
and  indorser,  is  purely  a  question  of  law. 
VcT  S/iaw,  C.  J.,  Sylvester  v.  Crapo,  15 
Pick.  93  ;  Camp  v.  Scott,  14  Verm.  387. 
—  Two  days,  and  even  five  months,  have 
been  held  to  be  within  the  limit.  Dennett 
r.  Wyman,  13  Verm.  485  ;  Sandford  v. 
Mickles,  4  Johns.  224.  So  one  month. 
Kanper  v.  Carey,  1  Met.  369.  On  the 
other  hand,  under  different  circumstances, 
ei^ht  months,  and  two  months,  have  ])ecn 
considered  bej'ond  it.  American  Bank  v. 
Jcnness,  2  Met.  288  ;  Nevins  r.  Town- 
shend,  6  Conn.  5;  Camp  v.  Scott,  14 
Verm.  387.  Sec  further,  Wcthey  r.  An- 
drews, 3  Hill,  .')82  ;  Thompson  v.  Hale,  6 
rick.  259;  Mudd  c.  Harper,  1  Marvl. 
110;   Carleton  v.  Uailey,  7  Fost.  230. 

(;»)  Bochni  v.  Stcrlinj^,  7  Term,  423; 
Down  V.  Hallinp,  4  B.  &  C.  330;  Both.s- 
child  V.  Corney,  9  B.  &  C.  388.  But  in 
this  country  the  princi]ile  is  not  consid- 
ered ap])licablc  to  bank-notes  or  bank 
post  notes.  The  Fulton  Bank  v.  The 
rhoenix  Bank,  1  Hall,  502,  577. 

(n)  Connery  v.  Kendall,  5  Louis.  Ann. 
515;  Pray  v.  Maine,  7  Cush.  253; 
Faton  V.  McKown,  34  Me.  510.  Per 
Lord  Ellenlxyrouqh,  Callow  v.  Lawrence,  3 
M.  &  S.  97  ;  Beck  v.  Kobley,  1  H.  Bl. 
89,  (n).  — But  if  a  bill  is  paid  by  the 
<lrawer  it  may  afterwards  be  reissued  by 
the  drawer,  and  the  acceptor  will  be  still 


liable  to  pay  it.  Hubbard  v.  Jackson,  3 
C.  &  P.  134,  4  Bing.  390,  1  M.  &  P.  11. 
—  In  Callow  i\  Lawrence,  supra,  Lord 
Ellenborough  said  :  —  "A  bill  of  exchange 
is  negotiable  ad  injinitum,  until  it  has 
been  paid  by  or  discharged  on  behalf  of 
the  acceptor.  If  the  drawer  has  paid  the 
bill,  it  seems  that  he  may  sue  the  acceptor 
upon  the  bill ;  and  if,  instead  of  suing  the 
acceptor,  he  put  it  into  circulation  upon 
his  own  indorsement  ouly,  it  docs  not 
prejudice  any  of  the  other  parties  who 
have  indorsed  the  bill  that  the  holder 
sJiould  i)e  at  liberty  to  sue  the  acceptor. 
The  case  would  be  different  if  the  circula- 
tion of  the  bill  would  have  the  effect  of 
prejudicing  any  of  the  indoi-sers." 

(o)  Hawkins  v.  Cardy,  1  Ld.  Raym. 
360.  And  although  an  indorser  has  paid 
j)art  of  a  bill  to  the  indoi-sec,  the  latter 
may  still  recover  the  whole  amount  of  the 
bill  against  the  drawer.  Johnson  v.  Keu- 
nion,  2  Wils.  262. 

(/>)  Hughes  V.  Kiddell,  2  Bay,  324. 
This  was  an  action  against  the  indorser  of 
a  note.  By  one  indorsement  ho  had  as- 
signed part  of  the  sum  mentioned  in  the 
the  note,  and  the  residue  by  another  in- 
dorsement. The  court  held  that  the  ac- 
tion could  not  be  supjiorted,  on  the  ground 
that  an  indorsement  for  part  of  a  note  or 
bill  is  i)ad  ;  and  if  so  then  two  vicious  in- 
dorsements could  never  constitute  a  good 
one.  See  also,  Hawkins  v.  Cardy,  1  Ld. 
Kaym.  360,  Carth.  466  ;  Johnson  i;.  Ken- 
nion,  2  Wils.  262,  per  Gould,  J. 

[  227  ] 


219* 


THE   LAAV   OF   CONTRACTS. 


[book  I. 


fer  the  same  by  mere  delivery,  (q)  and  is  not  liable  upon  it.  (qq) 
But  where  one  obtains  money  on  a  bill  or  note,  by  discount,  and 
the  bill  or  note  is  forged,  if  he  did  not  indorse  it  he  is  still  liable 
to  refund  the  money  to  the  party  from  whom  he  received  it,  on 
the  ground  of  an  implied  warranty  that  the  instrument  is  genu- 
ine ;  and  also  on  the  general  principle,  that  one  who  pays 
money  without  consideration  may  recover  it  back,  (r) 

*If  a  note  be  made  payable  on  its  face  or  by  indorsement  to 
a  party  or  his  order,  that  party  can  transfer  the  note  in  full 
property  only  by  his  indorsement ;  and  when  he  indorses  it  he 
makes  himself  liable  to  pay  it  if  those  who  ought  to  have  paid 
it  to  him,  had  he  continued  to  hold  it,  fail  to  pay  it  to  the 
party  to  whom  he  orders  it  paid.  His  indorsement  is,  in  itself, 
only  an  order  on  them  to  pay  the  bill  or  note ;  but  the  law  an- 
nexes to  this  order  a  promise  on  his  part  to  pay  the  bill  or  note 
if  they  do  not.  He  may  guard  against  this  by  indorsing  it  with 
the  words  "  without  recourse,"  which  mean,  by  usage,  that  the 
holder  is  not  to  have,  in  any  event,  recourse  to  the  indorser.  (s) 
And  the  same  purpose  will  be  answered  if  he  uses  any  other 
words  distinctly  expressive  of  the  same  meaning.  But  without 
such  words  he  is  liable  for  the  whole  amount,  (t) 

It  is  this  peculiarity  which  gives  their  great  value  and  utility 
to  bills  and  notes  as  instruments  of  commerce  and  business. 
And  this  liability  is  strictly  defined  and  very  carefully  watched 
and  protected.     It  is  a  conditional  liability  only.     All  the  pre- 


(7)  Davis  i".  Lane,  8  New  Hamp.  224  ; 
Wilbour  I'.  Turner,  5  Pick.  526  ;  Dole  v. 
Weeks,  4  Mass.  451. 

{(]!])  Camidge  v.  AUeuby,  6  B.  &  Cr. 
373.  See  also.  Rogers  v.  Langford,  1  Cr. 
&  M.  637. 

(r)  Jones  r.  Ryde,  1  Marsh.  157,  5 
Taunt.  489  ;  Bruce  w.  Bruce,  1  Marsh.  165 
5  Taunt.  495  ;  Gompeitz  v.  Bartlett,  24  E. 
L.  &  E.  156;  Gurney  v.  Womersley,  28 
E.  L.  &  E.  256,  and'editor's  note ;  Eagle 
Bank  v.  Smith,  5  Conn.  71  ;  Canal  Bank 
V.  Bank  of  Albany,  1  Hill,  87.  Sed,aliter, 
if  the  bill  or  note  is  discounted  by  the 
banker  of  the  acceptor  or  maker.  Smith 
f.  Mercer,  6  Taunt.  76.  The  ruling  of 
Abbott,  C.  J.,  in  Fuller  v.  Smith,  Ry.  & 
Mood.  49,  is  not  consistent  with  Smith  r. 
Mercer. 

(s)  Rice  V.  Stearns,  3  Mass.  225  ;  Up- 

[228] 


ham  V.  Prince,  12  Mass.  14;  Waite  v. 
Foster,  33  Maine,  424.  —  And  an  indorse- 
ment of  a  note  without  recoui-se  passes  it 
with  all  its  negotiable  qualities,  as  much 
as  if  indorsed  in  blank.  Eplcr  v.  Funk,  8 
Barr,  468.  Such  an  indorsement  transfers 
the  indorser's  whole  interest  therein,  but 
taken  with  other  circumstances,  it  tends  to 
show  that  the  note  was  not  indorsed  for 
value,  and  therefore  to  open  to  the  maker 
the  same  defences  against  the  indorsee 
M'hich  he  could  have  made  against  the 
payee.  Richardson  v.  Lincoln,  5  Met.  201. 
(t)  Goupy  V.  Harden,  7  Taunt.  159. 
In  this  case  it  was  held,  that  an  agent 
purchasing  foreign  bills  for  his  ])rincipal, 
and  indorsing  them  to  him  without  quali- 
fication, is  liable  to  the  principal  on  his 
indorsement,  however  small  his  commis- 
sion. 


CH.  XV.]  INDORSEMENT.  *220 

vious  parties  must  have  the  bill  or  note  presented  to  them,  and 
payment  demanded ;  and  notice  of  the  demand  and  non-pay- 
ment must  be  given  to  all.  And  this  requirement  is  very  pre- 
cise as  to  time,  and  somewhat  so  as  to  form ;  as  we  shall  pres- 
ently see. 

It  has  been  said  that  every  party  so  indorsing  a  bill  or  note 
may  be  regarded  as  making  a  new  bill  or  note ;  (w)  this,  though 
true  in  general,  may  not  be  precisely  and  exactly  the  rule  of 
law;  still  important  consequences  sometimes  flow  *from  it. 
Thus  an  acceptor  is  bound,  although  the  name  of  the  drawer  is 
forged,  and  an  indorser,  although  the  maker's  name  is  forged  ; 
for  by  acceptance,  and  by  each  indorsement,  a  new  contract  is 
formed,  (v)  And  the  same  rule  would  apply  to  a  party  who 
intervenes  and  accepts  or  pays  svpra  protest,  (vv)  But  a  dis- 
tinction has  been  taken  between  a  bill  with  the  signature  forged, 
and  one  of  which  the  whole  body  is  forged,  holding  that  the 
implied  admission  or  warranty  of  the  acceptor  does  not  apply 
in  this  latter  case,  (iv)  So,  if  a  bank  pays  a  forged  check,  it 
bears  the  loss,  (x)  And  if  a  bank  receive  payment  of  an 
amount  due  to  it  in  its  own  bills,  which  turn  out  to  be  forged, 
it  is  bound,  (i/)  But,  in  gene'ral,  payment  of  a  debt  in  forged 
bills,  both  parties  being  innocent,  is  no  payment,  nor  is  a  bank 
bound  by  discounting  a  forged  note,  (c)  But  the  loser  by 
forged  paper  can  recover  it  back  only  by  showing  proper  dili- 


(«)  Chitty  &  Ilulmc  on  Bills,  p.  241,  capacity  to  draw  and  indorse.     Drayton 

and  cases  cited.     Sec  also.  Pease  v.  Tur-  v.  Dale,  2  B.  &  C.  299,  3  D.  &  R.  534, 

ntr,  3  How.  (Miss.)  37.'j.  —  In  Gwinncl  y.  per  Buylei/,  J.;  Smith  v.  Mai-sack,  6  C. 

Herbert,   5  Ad.  &  El.  436,  it  is  said  that  B.  486. 

the  indorser  of  a  promissory  note  does  not  (vv)   Goddard   v.  Merchants   Bsmk,   4 

stand  in  the  situation  of  maker  relatively  Comst.  147. 

to  his  indorsee,  and  the  latter  cannot  de-  («)  Bank  of  Commerce  f.  Union  Bank, 

claro  against  him  as  maker.  3  Comst.  230.     But  see  Hall  v.  Fuller,  5 

(v)  Wilkinson  r.  Lutwidfje,  1  Str.  648;  B.  &  C.  750. 
Jcnys  V.  Fawler,  2  Str.  946  ;  Price  v.  (.i)  Lew  v.  Bank  of  United  States,  1 
Nealc,  3  Burr.  1354;  Smith  v.  Chester,  1  Binn.  27 ;' Bank  of  St.  Albans  v.  F.  & 
T.  11.  655,  per  Bullfr,  J.  ;  Ba.ss  v.  Clive,  M.  Bank,  10  Verm.  141  ;  Orr  v.  The 
4  M.  &  S.  15,  per  liumjmr,  J. ;  Smith  v.  Union  Bank  of  Scotland,  29  E.  L.  &  E.  1. 
Mercer,  6  Taunt.  76  ;  Robinson  v.  Rev-  [y)  United  States  Bank  i;.  Bank  of 
nolds,  2  Q.  B.  196;  Canal  Bank  v.  Bank  Georgia,  10  Wheat.  333. 
of  Albany,  1  Hill,  287  ;  Goddard  v.  Mer-  (c)  Stcdman  r.  Gooch,  I  Esp.  5;  Mar- 
chants  Bank,  4  Corns.  147;  Hamilton  v.  klc  v.  Hatfield,  2  Johns.  455;  Young  v. 
Pearson,  1  Cart.  (Ind.)  540.  So  also  the  Adams,  6  Mass.  182;  Eagle  Bank  v. 
acceptor  undertakes  that  the  drawer  has  the  Smith,  5  Conn.  71. 

VOL.  I.                                     20  [  229  ] 


221* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


gence  to  detect  the  forgery,  and  to  give  notice  to  those  who 
might  be  affected  by  it.  (a) 

Whether  payment  of  a  debt  in  bills  of  an  insolvent  bank, 
both  parties  being  ignorant  of  the  fact,  is  payment,  seems  not  to 
be  quite  settled.  It  must  depend  upon  the  question,  (which  in 
each  case  may  be  affected  by  its  peculiar  circumstances,) 
whether  the  payee  takes  the  bills  as  absolute  payment  at  his 
own  risk,  or  takes  them  only  as  conditional  payment,  he  to  be 
bound  only  to  use  due  diligence  in  collecting  the  bills,  arid  if  he 
fails,  the  payment  be  null.  Perhaps  the  weight  of  authority,  as 
well  as  of  reason,  is  in  favor  of  this  last  view  predominating 
where  there  is  no  sufficient  evidence  of  a  contrary  intention,  (b) 

*The  liability  of  an  indorser  may  be  considered,  first  as  it 
depends  on  the  demand  of  payment,  and  then  as  to  notice  of 
non-payment,  and  the  proceedings  necessary  thereon.  But  bills 
of  exchange  must  also,  in  some  instances,  be  presented  for  ac- 
ceptance, when  they  are  made  payable  at  a  certain  time  after 
sight,  in  order  to  fix  the  day  of  their  maturity.  If  payable  in 
so  many  days  after  date  this  is  not  necessary.  But  the  holder 
may  present  any  bill  for  acceptance,  at  any  time,  even  the  last 
day  before  it  is  due ;  and  if  not  accepted  may  sue  the  drawer 
and  indorser.  It  is  prudent  and  usual  to  present  a  bill  for  ac- 
ceptance soon  after  it  is  received,  as  the  holder  thereby  acquires 
the  security  of  the  acceptor,  (c) 


(a)  Gloucester  Bank  v.  Salem  Bank,  17 
Mass.  33  ;  Canal  Bank  v.  Bank  of  Albany, 
supra;  Pope  v.  Nance,  1  Minoi-  (Ala. 
Rep.),  299. 

(b)  Ellis  V.  Wild,  6  Mass.  321  ;  Onta- 
rio Bank  r.  Li<rhthocly,  11  Wend.  9,  13 
Wend.  101;  Wainwright  v.  Webster,  11 
Verm.  576;  Oilman  v.  Peck,  id.  516; 
FogK  V.  Sawyer,  9  New  Hamp.  365  ;  Fron- 
tier Bank  v.  Morse,  22  Maine,  88 ;  Tim- 
mis  V.  Gibbins,  14  E.  L.  &  E.  64,  and 
note ;  Contra,  Lowrev  v.  Murrell,  2  Por- 
ter, (Ala.)  280;  Scruggs  v.  Gass,  8  Yerg. 
175;  Bayard  v.  Sliunk,  1  W.  &  S.  92. 

[230] 


(c)  Muilman  v.  D'Equino,  2  H.  Bl. 
565.  It  was  here  held  that  there  is  no 
fixed  time  within  which  a  bill  paj'able  at 
sight,  or  a  certain  time  after,  shall  be  pre- 
sented to  the  drawee.  It  must  be  a  rea- 
sonable time ;  and  that  is  a  question  for 
the  jury  to  decide  from  the  circumstances 
of  each  case.  See  also  Fiy  v.  Hill,  7 
Taunt.  397  ;  Mullick  v.  Radakissen,  28 
E.  L.  &  E.  86. —  No  cause  of  action  arises 
upon  a  bill  payable  at  sight,  until  it  is 
presented.  Holmes  v.  Kerrison,  2  Taunt. 
323 ;  Thorpe  v.  Booth,  Ry.  &  Mo.  388. 


CH.  XV.] 


INDORSEMENT. 


*222 


SECTION    VI. 

OF  PRESENTMENT  FOR  ACCEPTANCE. 


Presentment  for  acceptance  should  be  made  by  the  holder  or 
his  authorized  agent  to  the  drawee  or  his  authorized  agent,  (d) 
during  the  usual  hours  of  business.  (<?)  And  the  *drawee  has 
until  the  next  day  to  determine  whether  he  will  accept,  but 
may  answer  at  once,  (ee)  And  a  bill  may  be  in  some  sort 
accepted  before  it  is  drawn,  for  a  written  promise  to  accept  a 
certain  bill  hereafter  to  be  made  is  construed  as  an  acceptance, 
if  precisely  that  bill  is  drawn  within  a  reasonable  time  after 
such  promise.  (/)  The  acceptance  must  also  be  absolute,  and 
not  in  any  respect  differing  from  the  terms  of  the  bill.  If  any 
other  be  given,  the  holder  may  assent  and  so  bind  the  acceptor, 
but  must  give  notice  as  of  non-acceptance   to  other  parties, 


(d)  Cheek  V.  Roper,  5  Esp.  175.  It  is 
not  suftiiient  to  call  at  the  residence  of  the 
drawee  and  present  the  hill  to  some  per- 
son, who  is  unknown  to  the  party  calling. 
Id. 

(e)  Elford  v.  Teed,  1  M.  &  S.  28  ; 
Churcli  r.  Clark,  21  Tick.  .310;  Rank  of 
United  States  v.  Carneal,  2  Peters,  .'343 ; 
Hairison  i-.  Crowder,  6  Sinedes  &  Mar. 
464  ;  I'arker  v.  Gordon,  7  East,  385. — 
And  presentment  after  hanking  hours, 
and  an  authorized  ])crsou  then  answering, 
ha.s  heen  held  sullieient.  Garnett  t-. 
Woodcock,!  Stark.  475.  A  presentment, 
however,  at  eight  o'clock  in  the  evening, 
at  the  drawee's  residence,  has  heen  held 
at  a  rea.-*onahle  hour.  Barclay  v.  Bailey, 
2  Canip.  5.J7. —  But  eleven  or  twelve  at 
night  has  heen  held  otherwise.  Dana  v. 
Sawyer,  22  Maine,  244.  So  of  a  demand 
at  eight  in  the  morning.  Lunt  r.  Adams, 
17  Maine,  230.  See  Flint  v.  Rogers,  15 
Maine,  67  ;  Commercial  Bank  r.  llamcr, 
7  How.  (Miss.)  448;  Cohca  c.  Hunt,  2 
Smeiles  &  Mar.  227.  —  The  rule  is  iu  all 
cases  that  the  presentment  shoulii  he  at  a 
reasonalile  time ;  and  when  the  pajier  is 
due  from  or  at  a  hank,  it  should,  iis  we 
have  already  said,  as  a  general  rule,  ho 
pi-cscnted  within  hanking  hours.  But  in 
other  cases  the  period  ranges  through  the 


whole  day,  down  to  the  time  of  going  to 
bed.     Cayuga  Bank  v.  Hunt,  2  Hill,  635. 

(ee)  Montgomery  County  Bank  v.  Al- 
bany City  Bank,  8  Barh.  399. 

( /)  Pillans  V.  Van  Mierop,  3  Burr. 
1670;  Coolidge  v.  I'ayson,  2  Wheaton, 
66  ;  Wilson  v.  Clenients,  3  Mass.  1 ; 
Goodrich  v.  Gordon,  15  Johns.  6;  I'arker 
V.  (ireelc,  2  Wend.  545 ;  Kendrick  v. 
CamphcU,  1  Bailey,  522 ;  Carnegie  i*. 
Morrison,  2  Met.  381  ;  Storer  r.  Logan,  9 
Mass.  55;  McEvers  r.  Mason,  10  Johns. 
207  ;  Schimmelpennich  !•.  Bavard,  1  Pet. 
264;  Boycc  v.  Edwards,  4"  Pet.  121; 
Williams  v.  Winans,  2  Green,  339  ;  Bay- 
ard V.  Lathv,  2  McLean,  462  ;  Vance  v. 
Ward,  2  Dana,  95;  Reed  v.  Marsh,  5  B. 
Monroe,  8;  Howland  v.  Carson,  15  I'enn. 
453  ;  Beach  v.  State  Bank,  2  Can.  (Ind.) 
488  ;  Cassel  v.  Dows,  2  BUitch.  335.  — 
But  tliis  rule  is  applicable  only  to  bills 
payalile  on  demand,  or  at  a  lixcd  time  af- 
ter date,  and  not  to  hills  payable  at  or 
after  sight ;  for  it  is  obvious  that  to  con- 
stitute an  acceptance  in  the  latter  cases  a 
presentment  is  indispensable,  since  the 
time  that  the  iiill  is  to  run  cannot  other- 
wise be  ascertained.  Storv  on  Bills  of 
Exch.  ^  249  ;  Wildes  v.  Savage,  1  Story, 
22;  Russell  v.  Wiggin,  2  Story,  213. 

[231] 


223* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


in  order  to  bind  them,  {ff)  The  usual  way  of  accepting  is  by 
writing  the  word  "accepted"  on  the  face  of  the  bill,  and  sign- 
ing the  acceptor's  name ;  but  there  is  no  precise  formula  or 
method  which  is  necessary  to  constitute  a  good  acceptance. 
It  seems  to  be  enough  if  it  is  substantively  a  distinct  promise 
to  pay  the  bill  according  to  its  terms,  whether  it  be  in  writing 
upon  the  bill  or  upon  a  separate  paper,  or  by  parol,  (g-) 


SECTION    VII. 

OF   PRESENTMENT   FOR   PAYMENT. 


A  bill  or  note  must  be  presented  for  payment  at  its  maturity, 
or  the  indorsers  are  not  held.  They  guarantee  its  *payment, 
not  by  express  words,  but  by  operation  of  law.  And  for  their 
protection  the  law  annexes  to  their  liability,  as  a  condition,  that 
reasonable  efTorts  shall  be  made  to  procure  the  payment  from 
those  bound  to  pay  before  them,  and  also  that  they  shall  have 
reasonable  notice  of  a  refusal  to  pay,  that  they  may  have  an 
opportunity  to  indemnify  themselves.  The  justice  of  this  is 
obvious.  A  holder  of  a  note,  with  a  good  indorser,  might  be 
very  indifferent  as  to  the  payment  by  the  promisor  or  an  ear- 
lier indorser,  if  he  knew  that  he  could  certainly  collect  the 
amount  from  the  indorser  on  whom  he  relied ;  therefore  the 


{ff)  Walker  v.  Bank  of  State  of  New 
York,  13  Barb.  636;  Lvon  v.  Sundiiis,  1 
Camp.  423;  Russell  ^.Phillips,  14  Q.  B. 
891. 

(g)  Edson  v.  Fuller,  2  Foster,  183; 
Wynne  v.  Raikes,  5  East,  514  ;  Fairlce  v. 
Herring,  3  Bing.  625.  In  this  case,  bills 
haA'ing  been  drawn  on  the  defendants  by 
their  agent,  and  with  their  authority,  in 
respect  of  a  mine  whicli  they  afterwards 
transferred  to  A,  they  requested  A  to  place 
funds  in  tlieir  hands  to  meet  tlie  bills  when 
due,  saying,  "it  would  be  unpleasant  to 
have  bills  drawn  on  them  paid  by  another 
party."  A  placed  funds  accordingly,  but 
when  the  bills  were  left  with  defendants  for 
acceptance,  no  acceptance  was  written  on 
them.  A's  agent  having  complained  to  one 
of  the  defendants  on  the  suliject,  he  said  : 
"  What,  not  accepted  1     We  have  had  the 

[232] 


money  and  they  ought  to  bo  paid,  but  I  do 
not  interfere  in  this  business,  you  should  see 
my  partner."  And  it  was  holden  that  all 
this  amounted  to  a  parol  acceptance  of  the 
bills  on  which  the  defendants  were  liable  to 
an  indorsee,  between  whom  and  A  thei-e 
was  no  privity,  and  that  the  indorsee  was 
not  precluded  from  suing,  by  having  made 
a  protest  in  ignorance  of  this  acceptance. — 
In  Ward  v.  Allen,  2  Met.  53,  a  bill  was 
read  to  the  drawee,  who  said  it  was  cor- 
rect and  should  be  paid  ;  and  this  was 
treated  as  a  sufficient  acceptance.  See 
Parkhurst  v.  Dickcrson,  21  Pick.  307  ; 
Luff  I'.  Pope,  5  Hill,  413 ;  Walker  v. 
Lide,  1  Rich.  249;  Walker  v.  Bank  of 
State  of  New  York,  13  Barb.  638  ;  Lewis 
V.  Kramer,  3  Maryl.  265 ;  Orear  v.  Mc- 
Donald, 9  Gill,  350. 


CII.  XV.] 


INDORSEMENT. 


*224 


very  liability  of  this  indorser  is  made  to  rest  upon  the  efforts 
of  the  holder  to  obtain  the  money  from  the  prior  parties. 
Again ;  each  indorser  transfers  by  indorsement  a  debt  due  to 
himself,  and  if  by  the  guaranty  which  springs  from  his  indorse- 
ment he  has  to  pay  this  debt  to  another,  he  is  entitled  to  all  the 
knowledge  which  will  enable  him  to  secure  a  payment  of  this 
debt  to  himself.  The  rules,  and  the  exceptions  to  the  rules,  in 
relation  to  demand  of  payment  and  notice  of  non-payment,  will 
be  found  to  rest  upon  these  principles. 

Generally,  the  (juestion  of  reasonable  time,  reasonable  dili- 
gence, and  reasonable  notice,  is  open  to  the  circumstances  of 
every  case,  and  is  determined  by  a  reference  to  them.  But  in 
regard  to  bills  and  notes  the  law  merchant  has  defined  all  of 
these  with  great  exactness. 

The  general  rule  may  be  said  to  be,  that  the  drawer  and  in- 
dorsers  of  a  bill  and  the  indorsers  of  a  note  are  discharged  from 
their  liability,  unless  payment  of  the  bill  or  note  be  demanded 
from  the  party  bound  to  j)ay  it,  on  the  day  on  which  it  falls 
due.  (h)  And  if  the  holder  neglects  to  make  such  *demand,  he 
not  only  loses  the  guaranty  of  subsequent  parties,  but  all  right 
to  recover  for  the  consideration  or  debt  for  which  the  bill  or 
note  was  given,  (i) 


(h)  Field  V.  Nickei-son,  13  Mas.s.  131 ; 
Slartiii  r.  Winslow,  2  RLu^oii,  241  ;  Sice 
V.  Cuniiin;;liani,  1  Cowen,  307  ;  Moiit- 
j^onicrv  County  Bank  r.  Albany  City 
Hank,'  8  Barb."  396  ;  Ilolbrook  *•.'  Alien, 
4  Florida,  87 ;  llol)in.>;oii  i\  Blen,  20 
Maine,  lO'J  ;  ^lapruder  v.  Union  Bank, 
3  Peters,  87;  Juniata  Bank  v.  Hale,  16 
.Serg.  &  Kawle,  157.  11"  the  bill  or  note 
is  jiayaiilc  at  fi  time  rcrtuiu,  it  must  be 
presented  on  the  last  day  of  j^raee  ;  and  a 
demand  either  Iiefore  or  after  that  day  i.s 
insullieieiit  to  ehargo  the  indorser.  Ibid. ; 
Howe  ;;.  Bradley,  19  Maine,  31  ;  Leavitt 
V.  Simcs,  3  New  Ham  p.  14  :  Farmers 
Bank  r.  Duynll,  7  U.  &  J.  78;  I'iatt  v. 
Kads,  1  niackf.  81  ;  Ettiug  v.  Sehuylkill 
Bank,  2  Barr,  35.'). 

(/)  Bridges  v.  Bern',  3  Taunton,  130  ; 
Camidge  i-.  Allenby',  6  B.  &  C.  373. 
This  was  an  action  for  the  priec  of  goods. 
It  ajijjeai-ed  tliat  the  same  were  sold  at 
York   on   Saturday  the  10th  Deeembcr, 

20* 


1825,  and  on  the  same  day,  at  three 
o'clock  in  the  afternoon,  the  yendee  de- 
liyered  to  the  yendor,  as  and  for  a  pay- 
ment of  the  price,  eeitain  promissory 
notes  of  the  bank  of  D.  ^^  Co.  at  Hud- 
dersiield,  payal)le  on  demand  to  bearer. 
D.  &  Co.  stopped  |)ayment  on  the  same 
day  at  clcyen  o'clock  in  the  morning, 
and  neyer  afterwards  resumed  their  pay- 
ments ;  but  neither  of  the  jnirties  knew  of 
the  stoppage,  or  of  the  insohenty  of  D. 
&  Co.  The  yendor  never  circulated  the 
notes,  or  jjiesented  them  to  the  bankers 
for  payment;  but  on  Saturday  the  17th 
he  re(juired  the  vendee  to  take  back  the 
notes,  and  to  pay  him  the  amount,  which 
the  latter  refused.  Jldd,  under  these 
circumstances,  that  the  yendor  of  the 
goods  was  guilty  of  laches,  and  had  there- 
by made  the  notes  his  own,  and,  con.sc- 
(juently,  that  they  operated  as  a  satisfac- 
tion of  the  debt. 

[233] 


225* 


THE  LAW   OF  CONTRACTS. 


[book  I. 


Let  US  look  at  the  exceptions  to  this  rule  requiring  such  pre- 
sentment of  a  bill  or  note.  Bankruptcy  or  insolvency,  however 
certain  or  however  manifested,  is  not  one.  (j)  Though  the 
bank  or  shop  be  shut,  presentment  there  or  to  the  parties  per- 
sonally must  still  be  made,  (k)  Nor  will  the  death  of  the  party 
prevent  the  necessity  of  demanding  payment  of  his  personal 
representatives,  if  he  have  any,  (/)  and  if  not,  at  his  house. 
But  delay  or  omission  to  demand  payment  does  not  discharge 
the  drawer  of  a  bill,  if  the  drawee  had  in  his  hands  no  effects 
of  the  drawer,  at  any  time  between  the  drawing  of  the  bill  and 
its  maturity,  and  had  no  right  on  other  ground  to  expect  the 
payment  of  the  bill,  (m)  for  the  drawer  had  then  no  right  to 
draw  the  bill,  and  *therefore  no  right  to  demand  or  notice,  be- 
cause he  could  not  profit  by  it  to  get  payment  to  himself  of  the 
debt  from  the  drawee,  there  being  no  such  debt.  So  also  if  the 
transaction  between  the  drawer  and  the  drawee  was  illegal,  (n) 
But  such  presentment  should  still  be  made  to  hold  the  subse- 
quent  parties,  (o)  ■   The  discharge  from   liability  arising  from 


(j)  Russell  V.  Langstaffe,  Doug.  515; 
Ex  parte  Johnston,  3  Dea.  &  CIi.  433 ; 
Bowes  V.  Howe,  5  Taunt.  30  ;  Gower  v. 
Moore,  25  Maine,  16;  Ireland  v.  Kip, 
Anthon,  142;  Sliaw  ?'.  Reed,  12  Pick. 
132  ;  Groton  v.  Dalheim,  6  Greeul.  476; 
Holland  v.  Turner,  10  Conn.  308  ;  Orear 
V.  McDonald,  9  Gill,  350.  And  althougli 
the  indorsers,  at  the  time  of  indorsement, 
had  reason  to  believe,  and  did  believe, 
that  the  maker  would  not  pay,  this  does 
not  dispense  with  the  necessity  of  due  no- 
tice to  them  of  such  maker's  default. 
Denny  v.  Palmer,  5  Ired.  610;  Oliver  v. 
Munday,  2  Pennington,  R.  982  ;  AUwood 
V.  Haseldon,  2  Bailey,  457. 

{k)  Bowes  V.  Howe,  5  Taunt.  30,  re- 
versing the  decision  of  the  King's  Bench 
in  the  same  case,  16  East,  112.  And  see 
Camidge  v.  AUenby,  6  B.  &  C.  373.  If 
the  maker  is  absent  on  a  voyage  at  sea, 
having  a  domicil  within  the  State,  pay- 
ment must  be  demanded  there.  Whit- 
tier  V.  Groft'am,  3  Greenl.  82 ;  Dcnnie  v. 
Walker,  7  New  Hamp.  199.  See  Ogden 
V.  Cowley,  2  Johns.  274  ;  Galpin  v.  Hard, 
3  McCord,  394;  Ellis  v.  Commercial 
B.ank,  7  How.  (Miss.)  294. 

(/)  Gower  v.  Moore,  25  Maine,  16 ; 
Landry  v.  Stansbury,  10  Louis.  R.  484. 

[234] 


(m)  De  Berdt  v.  Atkinson,  2  H.  BI. 
336  ;  Terry  v.  Parker,  6  Ad.  &  El.  502 ; 
Kinsley  v.  Robinson,  21  Pick.  327  ;  Foard 
V.  Womack,  2  Ala.  368 ;  Wollenweber  v. 
Kctterlinus,  17  Penn.  389;  Allen  v. 
Smith's  Adm'r,  4  Harring.  234  ;  Oliver 
i\  Bank  of  Tenn.  11  Humph.  74  ;  Orear 
V.  McDonald,  9  Gill,  350.  See  also 
Fitch  V.  Redding,  4  Sandf.  130.  But 
where  a  note  is  signed  by  one  person  as  a 
principal,  and  others  as  sureties,  it  is  not 
a  sufficient  excuse  to  show  that  the  sure- 
ties had  no  funds  in  the  place  of  payment ; 
for  it  was  the  duty  of  the  7noker,  and  not 
of  the  sureties,  to  provide  for  tlie  ])ay- 
mcnt.  Fort  v.  Cortes,  14  Louis.  Rep. 
180. 

(»)  Copp  V.  McDugall,  9  Mass.  1. 
Where  the  indorsee  of  a  negotiable  prom- 
issory note  failed  of  recovering  against 
the  promisor,  because  the  original  con- 
tract was  usurious,  the  indorser,  who  was 
the  original  payee,  was  held  liable,  with- 
out notice,  for  the  amount  due  by  the 
note,  but  not  for  the  costs  of  the  indorsee's 
action  against  the  jiromisor. 

(o)  Wilkes  V.  Jacks,  Peake's  N.  P. 
Cas.  202 ;  Leach  v.  Hewitt,  4  Taunt. 
730  ;  RamduloUday  v.  Darieux,  4  Wash. 
C.  C.  61. 


CH.  XV.] 


INDORSEMENT. 


*226 


such  delay  or  omission  may  be  waived,  by  an  express  promise 
to  pay  made  after  such  discharge,  or  by  a  payment  in  part, 
from  which  the  law  infers  an  acknowledgment  of  liability;  but 
not  by  a  promise  made  before  such  delay  or  omission.  (/?)  If 
the  party  who  should  pay  the  note  has  absconded,  or  has  no 
domicil  or  regular  place  of  business,  and  cannot  be  found  by 
reasonable  endeavors,  payment  need  not  be  demanded  of  him, 
because  it  would  be  of  no  utility  to  a  subsequent  party ;  [q) 
•still,  notice  of  these  facts  should  be  given.  And  it  has  been 
held  that  where  demand  of  payment  was  delayed  by  political 
disturbances,  or  by  any  invincible  obstacle,  it  was  enough  if  the 
demand  was  made  as  soon  as  possible  after  the  obstruction 
ceased. (r) 


{/))  Tliat  a  payment  of  i)art  is  waiver  of 
a  non-(lemaii(l  on  the  maimer,  sec  Vauglian 
V.  Fuller,  Stranj^c,  124G  ;  Taylor  v.  Jones, 
2  Camp.  106 ;  Lundie  v.  KoI)Crtson,  7 
East,  2.'H  ;  Haddock  o.  Bury,  id.  236, 
note ;  ll()d;:e  v.  Fillis,  3  Camp.  464  ; 
Ilupley  c.  Dufresne,  15  East,  275.  —  That 
.a  new  promise  to  pay,  after  notice  of  the 
nejrleot  to  demand  of  the  maker,  is  a 
waiver,  see  Sus.sex  Bank  v.  Baldwin,  2 
Harrison,  487  ;  Seeley  v.  Bisbee,  2  Verm. 
105  ;  Ladd  v.  Keimey,  2  New  Hamp. 
340;  H<.;,r,.,s  v.  Hackett,  1  Foster,  100; 
Breed  r.  llillhouse,  7  Conn.  523  ;  Jones 
V.  O'Hricn,  26  E.  L.  &  E.  283  ;  IVto  v. 
Reynolds,  id.  404.  —  It  has  heen  decided 
that  it  must  i>e  shown  anirmatively,  how- 
ever, that  the  indorser,  when  he  made 
the  promise,  knew  that  no  demand  had 
been  made  on  the  maker.  Otis  /•.  Hus- 
scy,  3  New  Hamji.  346  ;  New  Orleans 
llailroad  Co.  c.  Mills,  2  Louis.  Ann.  824  ; 
Rohinson  v.  Day,  7- Louis.  Ann.  201. 
But  it  is  said  in  Bruce  v.  Lytic,  13  Barh. 
163,  that  where  there  is  an  ex])ress  prom- 
ise, demand  and  notice  will  he  ]iresume<l 
unless  the  cdntrary  he  shown.  —  So  if  an 
indorser  take  /'»//  security  from  the  maker 
to  secure  him  af^ainst  his  liability  to  ])ay 
t!ie  note,  this  excuses  a  demand  on  the 
maker,  and  notice  thereof  to  the  indorser. 
Durham  v.  Price,  5  Yer<rer,  300  ;  Du- 
vall  V.  Farmers  Bank,  2  C!.  &  J.  31  ; 
Mca.l  V.  Small,  2  (Ircenl.  207  ;  Marshall 
V.  Mitchell,  34  Me.  227  ;  .  Marshall  c. 
Mitchell,  35  Me.  223;  Prentiss  r.  Dan- 
ielson,  5  Conn.  175;  Perry  r.  Green,  4 
Harrison,  61  ;  Mechanics  jiank  r.  Gris- 
wold,  7   Wend.  165  ;  Coddingtou  v.  Da- 


vis, 3  Den.  16;  Bond  v.  Farnham,  5 
Mass.  170  ;  Stephenson  v.  Primrose,  8 
Porter,  155. — Al^r,  of  only  part  secu- 
rity. Spencer  v.  ffarvcv,  17  Wend.  489  ; 
Bruce  v.  Lytic,  )3  Barh.  163;  Bur- 
roughs ?'.  lianegan,  1  IVIcLean,  309 ; 
Kyle  V.  Green,  14  Ohio,  495  ;  Woodmau 
V.  Eastman,  10  New  Uani]).  359  ;  An- 
drews r.  Boyd,  3  Met.  434. — And  the 
whole  doctrine  itself  is  snliject  to  many 
rpialifications  ;  and  in  Kramer  v.  Sand- 
ford,  4  Watts  &  Scrp.  328,  where  the 
American  authorities  are  fully  reviewed, 
Gilison,  C.  J.,  observed  that  this  doctrine 
of  waiver  in  consideration  of  security  had 
no  footing  in  Westminster  Hall. 

(v)  I'utnam  v.  Sullivan,  4  Mass.  45; 
Gilbert  v.  Dennis,  3  Met.  495,  499,  per 
Sialic,  C.  J.  ;  Duncan  r.  McChillough,  4 
S.  &  K.  480;  Lehnum  r.  Jtmes,  1  Watts 
&  Serg-.  126;  Wheeler  v.  Field,  6  Met. 
290;  Gist  i\  Lybrand,  3  Ohio.  307; 
Central  Bank  v.  Allen,  16  Maine,  41  ; 
Bruce  v.  Lytle,  13  Barb.  163;  Nailor  v. 
Bowie,  3  Maryl.  251. — So  when  the 
maker  of  the  note  was  a  seafaring  man, 
having  no  residence  or  place  of  business 
in  the  State,  and  was  at  sea  when  pay- 
ment was  due,  no  demand  was  held  re- 
(piisite.  Moore  v.  Coflicld,  1  Devcreux, 
247.  —  But  where  the  holder  was  told, 
at  the  time  of  the  indorsement,  that  the 
maker  was  a  transient  person,  and  his 
resideiu'c  unknown,  iin  t-jfini  should  be 
made  notwithstanding,  to  tiiid  him.  Otis 
r.  Hussey,  3  New  Hamj).  346. 

(r)  I'atience  v.  Townley,  2  Smith,  R. 
223.  And  so  the  prevalence  of  a  conta- 
gious malignant  fever  in  the  place  of  resi- 

[235] 


226- 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Where  the  bill  or  note  is  made  payable  at  a  particular  place 
specified  in  the  body  of  it,  it  seems  to  be  the  rule  in  England 
that  it  must  be  presented  for  that  purpose  at  that  place,  for  the 
place  is  part  of  the  contract ;  (i-)  but,  in  this  country,  neither 
such  bill  or  note,  nor  a  bill  drawn  payable  generally,  but  ac- 
cepted payable  at  a  specified  place,  need  be  presented  at  that 
place,  [t)  in  order  to  sustain  an  action  against  the  maker  or 
acceptor,  but  he  may  show,  by  way  of  defence,  that  he  was 
ready  there  with  funds,  and  thus  escape  all  damages  and  inter- 
est ;  (m)  and  if  he  can  show  positive  loss  from  the  want  of  such 
presentment,  (as  the  subsequent  failure  of  a  bank  where  he 
had  placed  funds  to  meet  the  bill,)  he  will  be  discharged  from 
his  liability  on  the  bill  to  the  amount  of  such  loss.  Such 
seems  to  be  the  prevailing,  though  not  the  only  view,  taken  of 
this  subject  by  the  American  authorities ;  for  some  of  much 
weight  hold,  th^  where  the  acceptance  is  thus  qualified,  the 


dence  of  the  parties,  which  occasioned  a 
stoppage  of  all  business,  has  been  held  a 
sufficient  excuse  for  a  delay  of  two  months 
in  giving  notice  of  a  non-payment.  Tun- 
no  V.  Lague,  2  Johns.  Cas.  1.  If  the 
holder  deposits  the  note  in  the  post-office 
in  season  to  reach  the  place  of  payment 
at  the  proper  time,  to  be  there  presented 
by  his  agent,  but  through  the  mistake  of 
the  postmaster  it  is  misdirected  and  de- 
layed, these  facts  have  been  held  to  ex- 
cuse the  delay.  Windham  Bank  v.  Nor- 
ton, 22  Conn.  213. 

(s)  Eowe  V.  Young,  2  Brod.  &  Bing. 
165 ;  Sanderson  v.  Bowes,  14  East, 
500 ;  Spindler  v.  Grellett,  1  Exch.  384  ; 
Emblin  v.  Dartnell,  12  M.  &  W.  830. 
These  decisions,  however,  led  to  the  en- 
actment of  1  &  2  Geo.  4,  c.  78,  which 
provides  that  an  acceptance  at  a  particu- 
lar place  is  a  general  acceptance,  unless 
expressed  to  be  payable  there  only,  and 
not  otherwise  or  elsewhere.  On  the  con- 
struction of  this  statute,  see  Selby  v.  Eden, 
3  Bing.  611;  Favle  v.  Bird,  6  B.  &  C.  531 . 

(t)  United  States  Bank  v.  Smith,  11 
Wheat.  1"1  ;  Foden  v.  Sharp,  4  Johns. 
183;  Wolcott  V.  Van  Santvoord,  17 
Johns.  248 ;  Caldwell  i'.  Cassidy,  8  Cow. 
271;  Haxtun  ?'.  Bishop,  3  W'^end.  15; 
Wallace  v.  McConnell,  13  Peters,  136; 
Carley  v.  Vance,  17  Mass.  389;  Wat- 
kins  V.  Crouch,  5  Leigh,  522 ;  Buggies 
I'.  Patten,  8  Mass.  480 ;  Allen  v.  Smith's 

[236] 


Adm'r,  4  Haixing.  234;  Dougherty  i'. 
Western  Bank  of  Georgia,  13  Georgia, 
288 ;  Ripka  v.  Pope,  5  Louis.  Ann.  61  ; 
Blair  v.  Bank  of  Tenn.,  11  Humph.  84; 
Weed  V.  Van  Houten,  4  Halst.  189; 
McNairy  v.  Bell,  1  Yerg.  502  ;  Mulherrin 
V.  Hannum,  2  id.  81  ;  Bacon  v.  Dyer,  3 
Fairfield,  19;  Remick  v.  O'Kylc,  id. 
340 ;  Dockray^  v.  Dunn,  37  Me.  442 ; 
Nichols  V.  Pool,  2  Jones  (N.  C.)  Rep. 
23;  Ii-vine  v.  Withers,  1  Stew.  (Ala.) 
234 ;  Eldred  r.  Hawes,  4  Conn.  465 ; 
Wuite,  J.,  in  Jackson  v.  Packer,  13  id. 
358;  Payson  v.  Whitcomb,  15  Pick. 
212  ;  Sumner  v.  Ford,  3  Arkansas,  389; 
Green  v.  Goings,  7  Barb.  Sup.  Ct.  652. 
Contra,  per  Story,  J.,  Picquet  v.  Curtis, 
1  Sumner,  478.  If  the  bill  or  note  be 
payable  at  a  particular  place,  on  demand, 
tiicn,  according  to  Savage,  C.  J.,  in  Cald- 
well V.  Cassidy,  8  Cowen,  271,  demand 
is  necessary.  This  is  denied  in  Dough- 
erty V.  Western  Bank  of  Georgia,  13  Ga. 
287 ;  but  it  is  there  decided  that  bank- 
notes are  exceptions  to  the  general  rule, 
on  tlie  ground  of  public  policy,  and  de- 
mand upon  them  must  be  made.  Tliis 
may  however  be  doubted. 

(;/)  Wolcott  V.  Van  Santvoord,  17 
Johns.  248;  Wallace  t\  McConnell,  13 
Pet.  136  ;  Savaqe,  C.  J.,  in  Haxtun  i'. 
Bishop,  3  Wend.  21  ;  Wilde,  J.,  in  Car- 
ley  V.  Vance,  17  Mass.  392  ;  Caldwell  v. 
Cassidy,  8  Cowen,  271. 


en.  XV.] 


INDORSEMENT. 


*227 


'holder  may  refuse  it  and  protest  as  for  non-acceptance;  but  if 
he  receives  and  assents  to  it  he  is  bound  by  it,  and  can  demand 
payment  nowhere  else.  The  drawers  *and  indorsers  are  cer- 
tainly discharged  by  a  neglect  to  demand  payment  at  such 
specified  place,  (v)  If  the  place  be  designated  only  in  a  memo- 
randum, not  in  the  body  of  the  bill  or  note,  presentment  may 
be  made  at  such  place,  but  may  also  be  made  where  it  might 
have  been  without  such  memorandum,  (iv)  If  the  note  be  pay- 
able at  any  of  several  different  places,  presentment  at  any  one 
of  them  will  be  sufficient,  (ivw)  It  has  been  held  that  where  a 
note  was  made  payable  at  a  certain  house,  and  the  occupant  of 
the  house  was  himself  the  holder  of  the  note  at  its  maturity,  it 
was  demand  enough  if  he  examined  his  accounts,  and  refusal 
enough  if  he  had  no  balance  in  his  hands  belonging  to  the 
party  bound  to  pay.  (x) 


{v)  See  3  Kent's  Comm.  97,  99 ;  Pic- 
quet  V.  Curtis,  1  Sum.  478 ;  Gale  v. 
Kemper's  Heirs,  10  Louis.  205 ;  Warren 
V.  Allnut,  12  Louis.  454  ;  Bacon  v.  Dyer, 
12  Maine,   19. 

(it)  Williams  v.  Waring,  10  B.  &  C. 
2.  This  was  an  action  of  assumpsit  on  a 
j)romissory  note  by  the  indorsee  against 
the  maker.  The  note  was  in  the  follow- 
ing form:  —  "  31st  January',  1827.  Two 
months  iifter  date  I  promise  to  pay  to  A. 
B.  £25,  value  received.  J.  Waring.  At 
Messrs.  B.  &  Co.'s,  Bankei-s,  London." 
The  note  wiis  in  tiie  handwriting  of  the 
defendant,  the  maker,  and  the  memoran- 
dum was  written  at  the  time  the  note  was 
made.  For  the  defendant  it  was  con- 
tended that  tlic  note  should  have  been  de- 
scribed in  the  declaration  as  pavable  at 
Messrs.  B.  &  Co.'s,  and  tliat  evidence  of 
))resentinent  there  shouhl  have  been  given. 
The  judge  oven-ulcd  the  objection,  but 
gave  leave  to  move  to  enter  a  nonsuit.  It 
was  moved  accordingly,  and   contended 


that  tlie  memorandum  was  as  much  par- 
cel of  the  contract  as  if  it  had  been  in  the 
body  of  the  instrument,  and  that  therefore 
presentment  at  the  house  where  the  note 
was  made  paj-able  should  have  been 
averred  and  proved.  Lord  Tenterden,  C. 
J.  :  "  In  point  of  practice,  the  distinction 
between  mentioning  a  particular  place 
for  payment  of  a  note,  in  the  body  and  in 
the  margin  of  the  instniment,  has  been 
frequently  acted  on.  In  the  latter  case  it 
has  been  treated  as  a  memorandum  only, 
and  not  as  a  part  of  the  contract ;  and'l 
do  not  see  any  sutticient  reason  for  de- 
parting from  that  course."  Baijley,  J., 
cited  tiie  case  of  Exon  v.  Bunell,  4  Al.  & 
S.  505,  as  being  sufficient  to  decide  this 
case  in  favor  of  the  plaintiff.  See  also 
Morris  v.  Husson,  4  Sandf.  93. 

(ww)  Langley  r.  Palmer,  30  Maine, 
467. 

(x)  Saunderson  i-.  Judge,  2  H.  Bl. 
509. 

[237] 


228* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


SECTION    VIII. 

of  whom,  and  when,  and  where  the  demand  should  be  made. 

Demand  of  payment  should  be  made  by  the  holder,  or  his 
authorized  agent,  of  the  party  bound  to  pay,  or  his  authorized 
agent;  (y)  and  at  his  usual  place  of  residence,  or  usual  *place 
of  business  ;  if  the  former,  within  such  hours  as  may  be  reason- 
ably so  employed,  and  if  the  latter,  in  business  hours.  And  if 
the  holder  finds  the  dwelling-house  or  place  of  business  of  the 
payor  closed,  so  that  he  cannot  enter  the  same,  and  after  due 
inquiry  cannot  find  the  payor,  the  prevalent  doctrine  in  this 
country  is,  that  he  may  treat  the  bill  or  note  as  dishonored,  (z) 
If  the  payor  has  changed  his  residence  to  some  other  place 
within  the  same  State,  the  holder  must  endeavor  to  find  it  and 
make  demand  there ;  but  if  he  have  removed  out  of  the  State, 
subsequent  to  making  the  note,  the  demand  may  be  made  at 
his  former  residence,  (a)  The  presumption  is  that  the  holder 
lives  where  he  dates  the  note,  and  demand  must  be  made  there, 
unless  when  the  note  falls  due  the  payor  resides  elsewhere 
within  the  State,  and  the  holder  knows  it,  and  then  the  holder 
must  make  the  demand  there,  (b) 


(y)  Lord  Kenyon,  in  Cooke  v.  Callaway, 
1  Esp.  115.  — And  a  person  in  possession 
of  a  bill,  payable  to  his  own  order,  is  a 
holder  for   this   purpose.     Smith  v.  Mc- 

Clure,  5  East,  476  ;  2  Smith,  43  ; v. 

Ormston,  10  Mod.  286. — A  demand  by  a 
notary  is  sufficient.  Hartford  Bank  v. 
Stedman,  .3  Conn.  489  ;  Sussex  Bank  v. 
Baldwin,  2  Harrison,  487  ;  Bank  of  Utica 
V.  Smith,  18  Johns.  2-30. —  Parol  authority 
to  an  agent  to  demand  payment  is  suffi- 
cient.    Shed  V.  Brett,  1  Pick.  401. 

(z)  Hine  v.  Allely,  4  B.  &  Ad.  624 ; 
Shed  V.  Brett,  1  Pick.  413  ;  Williams  v. 
Bank  of  United  States,  2  Pet.  96  ;  Ogden 
V.  Cowley,  2  Johns.  274 ;  Fields  i'.  Mal- 
lett,  3  Hawkes,  465 ;  Buxton  v.  Jones,  1 
Mann.  &  Gr.  83.  —  It  has  been  said, 
however,  that  in  such  case  some  inquiiy 
or  effort  ought  to  be  made  to  find  the 
maker.     Ellis    v.   Commercial    Bank,   7 

[238] 


How.  (Miss.)  294;  Sullivan  v.  Mitchell, 
1  Car.  Law  Rep.  482  ;  Collins  v.  Butler, 
Str.  1087. 

(c()  Anderson  v.  Drake,  14  Johns.  114; 
McGruder  v.  Bank  of  Wasliington,  9 
Wheat.  598 ;  Gillespie  v.  Hannaiian,  4 
McCord,  503 ;  Reid  v.  Morrison,  2  Watts 
&  Serg.  401  ;  AVheeler  v.  Field,  6  Met. 
290;  Nailor  v.  Bowie,  3  Maryl.  251. 

(h)  F'isher  v.  Evans,  5  Binney,  541  ; 
Nailor  v.  Bowie,  3  Maryl.  251  ;  Lowery 
V.  Scott,  24  Wend.  358.  See  also,  on  this 
suiiject,  Taylor  v.  Snj-der,  3  Denio,  145. 
A  note,  specifying  no  place  of  payment, 
was  dated,  made,  and  indorsed  in  the  State 
of  New  York,  but  the  maker  and  indorser 
resided  in  Mexico,  and  continued  to  reside 
tiiere  wlien  tiie  note  fell  due,  their  place 
of  residence  being  known  to  the  payee  and 
holder,  botli  when  the  note  was  given  and 
when  it  matured  ;  and  it  was  held  that  a 


CH.  XV.] 


INDORSEMENT. 


»229 


I 


The  whole  law  in  respect  of  demand  and  notice  is  very  much 
influenced  by  the  usage  of  particular  places ;  where  such  usage 
is  so  well  established  and  so  well  known  that  persons  may  be 
supposed  to  contract  with  reference  to  it.  Of  this  the  English 
rule  in  relation  to  checks  on  bankers  affords  an  instance,  {c)  and 
also  the  usage  of  the  banks  of  our  *different  cities  as  to  notes 
discounted  by  them,  or  left  with  them  for  collection.  In  this 
country  the  practice  is  not  uniform ;  but,  in  general,  a  demand 
is  made  some  days  before  the  maturity  of  a  note,  by  a  notice 
postdated  on  the  day  of  maturity,  omitting  the  days  of  grace. 
But  it  is  usual  also,  if  the  note  be  not  paid  on  the  last  day  of 
grace,  to  make  a  formal  demand  on  that  day,  after  business 
hours.  Bills  and  notes  sometimes  express  days  of  grace,  but 
generally  not.  Usually,  and  in  some  States  by  statutory  pro- 
visions, all  bills  and  notes  on  time,  when  grace  is  not  expressly 
excluded,  are  entitled  to  grace,  (d)    .But  notes  payable  on  de- 


I 


demand  of  payment  on  the  maker  and  a 
notice  to  the  indorser  were  necessary  to 
charf^c  the  indorser.  Spies  v.  Gilmore,  1 
Bart>.  Slip.  Ct.  158;  and  affirmed  on  ap- 
peal, 1  Comst.  321. 

(r)  Kohson  r.  Bennett,  2  Taunt.  388. 
By  the  practice  of  the  London  Iiankers,  if 
one  l)anker  who  holds  a  check  drawn  on 
another  banker  presents  it  after  four 
o'clock,  it  is  not  then  paid,  hut  a  mark  is 
put  on  it,  to  sliow  that  the  drawer  has 
assets,  anil  that  it  will  he  paid  ;  and  checks 
so  markcil  have  a  priority,  and  arc  cx- 
chaiii^ed  or  jiaid  next  day  at  noon,  at  the 
clearin<r-house  ;  heh/,  that  a  check  pre- 
sented after  four,  and  so  marked,  and  car- 
ried to  the  cicarinfr-house  next  day,  hut 
not  paid,  no  clerk  from  the  drawee's  house 
attending,  need  not  he  presented  for  ])ay- 
ment  at  the  hankinjj-house  of  the  drawee. 
Such  a  marking,  under  this  practice, 
amounts  to  an  acceptance,  payai)lc  next 
day  at  the  dearintr-house.  It  is  not  neces- 
sary to  present  for  payment  a  check  pav- 
ahle  on  demand  till  the  day  foliowiuf;  the 
day  on  which  it  is  piven.  A  person  rc- 
ceivinfr  a  check  on  a  hanker  is  Cfinally  au- 
thorized in  lodjiinjj  it  with  his  own  hanker 
to  ohtain  payment,  as  he  wouhl  ho  in  pay- 
ing it  away  in  tlie  course  of  trade.  Ai- 
thouy:h  in  consequence  thereof  the  notice 
of  its  dishonor  is  postponed  a  day,  one 
day  hcing  allowed  for  notice  from  the  payee 
to  the  drawer,  after  the  day  on  which  no- 


tice is  given  by  the  hankers  to  the  pavee. 
See  Bancroft  v.  Hall,  Holt,  N.  P.  476 ; 
Henry  r.  Lee,  2  Chitty,  124. 

{d)  Corp  i\  McComb,  1  Johns.  Cas. 
328 ;  Jackson  v.  Richards,  2  Caines,  343. 
In  the  absence  of  proof  to  the  contrary,  the 
Ictral  presumption  is,  that  in  every  State 
in  the  Union  three  days  fjrace  are  allowed 
by  law  on  bills  of  e.^chanfrc  and  promis- 
sory notes.  Wood  r.  Corl,  4  Met.  203. 
In  tills  case,  Shiitr,  C.  J.,  said  :  "  We  con- 
sider it  well  settled,  that  by  tlie  general 
law  merchant,  which  is  part  of  the  com- 
mon law,  as  prevailing  throughout  the 
United  States,  in  the  absence  of  all  proof 
of  particular  contract  or  special  custom, 
three  days  of  grace  are  allowed  on  bills  of 
exchange  and  promissoiy  notes  ;  and  when 
it  is  relied  upon  that  by  special  custom  no 
grace  is  allowed,  or  any  other  term  of 
grace  than  three  days,  it  is  an  exception 
to  the  general  rule,  and  the  proof  lies  on 
the  party  taking  it."  See  also,  Bussard 
V.  Levering,  6  Wheat.  102 ;  Kenner  r. 
Bank  of  Columbia,  9  Wheat.  .OSl  ;  Mills 
c.  United  States  Bank,  11  id.  431  ;  Cook 
r.  Darling,  2  K.  I.  385.  —  The  days  of 
grace  on  negotiable  notes  constitute  a  part 
of  the  original  contract.  Savings  Bank  ?;. 
Bates,  8  Conn.  505,  but  the  notes  may  l»c 
declared  on  according  to  tlieir  terms  with- 
out adiling  the  days  of  grace.  I'adwick 
i\  Turner,  11  Q.  B.  124.  —  Whenever  the 
maker  of  a  note  is  entitled  to  grace,  the 

[239] 


230*-231' 


THE   LAW   OP   CONTRACTS. 


[book  I. 


mand  are  not  entitled  to  grace,  (e)  nor  are  checks  on  banks, 
though  payable  on  time,  (ee) 

It  sometimes  happens  that  when  a  bill  is  drawn  in  one  coun- 
try, and  made  payable  in  another,  the  laws  in  relation  to  pre- 
sentment and  demand  differ  in  those  countries ;  and  then  the 
question  arises,  which  law  shall  prevail.  It  would  seem  that  in 
England  the  law  of  the  place  in  which  it  is  payable  prevails ;  (/) 
but  in  this  country  it  has  been  decided  that  the  *law  of  the 
country  in  which  the  bill  is  indorsed  shall  govern  exclusively  as 
to  the  liabilities  and  duties  of  the  indorsers,  on  the  ground  that 
every  indorsement  is  substantially  a  new  contract,  (g) 


*SECTION    IX. 

OF   NOTICE   OF   NON-PAYMENT. 

Where  a  bill  is  not  accepted,  or  a  bill  or  note  is  not  paid  at 
maturity,  by  the  party  bound  then  to  pay  it,  all  subsequent 
parties  must  have  immediate  notice  of  this  fact.     Even  a  verbal 


indorser  has  the  same  privilege.  Pickard 
V.  Valentine,  13  Maine,  412;  Central 
Bank  v.  Allen,  16  Maine,  41. 

(e)  In  re  Brown,  2  Story,  503;  Salter 
V.  Burt,  20  Wend.  205 ;  SomeiTille  v. 
Williams,  1  Stewart,  484;  Cammer  v. 
Han-ison,  2  McCord,  246. 

(ee)  Bowen  v.  Newell,  5  Sandf.  326. 

(/)  Rothschild  V.  Curric,  1  Q.  B.  43. 
This  was  an  action  by  an  indorsee  against 
the  payee  and  indorser  of  a  l)ill  of  exchange 
drawn  in  England  on  and  accepted  by  a 
French  house,  both  plaintiff  and  defendant 
being  domiciled  in  England ;  Held,  that 
due  notice  of  the  dishonor  of  the  bill  by 
the  acceptor  was  parcel  of  the  contract ; 
that  the  bill  being  made  payable  by  the 
acceptor  abroad  was  a  foreign  bill,  and  the 
lex  loci  contractus  must  therefore  prevail ; 
and  that  it  was  sufficient  for  plaintiff  to 
show  that  he  had  given  defendant  such 
notice  of  the  dishonor  and  protest  as  was 
required  by  the  law  of  France.  In  Gibbs 
V.  Fremont,  20  E.  L.  &  E.  555,  the  case 
of  Rothschild  v.  Currie,  is,  however,  re- 
ferred to  by  Alderson,  B.,  as  of  question- 
able authority. 

[240] 


[g]  Aymer  v.  Sheldon,  12  "Wend.  439. 
In  this  case  it  was  held,  that  the  indorsee 
of  a  bill  of  exchange,  payable  a  certain 
number  of  days  after  sight,  drawn  in  a 
French  West  India  Island,  on  a  mercantile 
house  in  Bordeaux,  and  transferred  in  the 
city  of  Nero  York  by  the  payee,  need  not  pre- 
sent the  bill  for  payment  after  protest  for 
non-acceptance,  notwithstanding  that  by  the 
French  code  de  commerce  the  holder  is  not 
excused  from  the  protest  for  non-payment 
by  the  protest  for  non-acceptance ;  and 
loses  all  claim  against  the  indorser,  if  the 
bill  be  not  presented  for  protest  for  non- 
payment. In  such  a  case  the  payee  of  the 
bill  is  bound  to  conform  to  the  French  law 
in  respect  to  bills  of  exchange,  to  enforce 
his  remedies  against  the  drawers  ;  but  not 
so  the  indorsee ;  he  is  only  required  to  com- 
ply with  the  law  merchant  prevailing  here, 
the  indorsement  having  been  made  in  the 
city  of  New  York  ;  and  according  to  which 
his  right  of  action  is  perfect,  after  protest 
for  non-acceptance.  Sec  also,  Hatcher  v. 
McMorine,  4  Dev.  122. 


CH.  XV.]  INDORSEMEXT.  *232 

agreement  of  the  parties  to  waive  notice  may  not  *render  it 
unnecessary  ;  (A)  but  it  is  sometimes  waived  in  writing,  and  this 
usually  on  the  note  ;  as  by  the  words,  "  I  waive  demand  and 
notice  ; "  and  such  waiver  is  sufficient,  {hh)  A  waiver  of  de- 
mand alone  should  operate  as  a  waiver  of  notice ;  for  if  demand 
of  payment  is  not  made  because  unnecessary,  a  notice  can 
hardly  be  necessary  or  useful ;  but  a  waiver  of  notice  alone  is 
not  a  waiver  of  demand,  for  though  the  party  waiving  may  not 
v/ish  for  notice  of  the  non-payment,  he  may  still  claim  that  pay- 
ment should  be  demanded.  {%)  And  no  waiver  affects  any 
party  but  him  who  makes  it.  It  was  formerly  held  that  a 
neglect  to  give  notice  would  not  support  a  defence  to  a  bill, 
unless  injury  could  be  proved ;  but  it  is  now  well  settled  that 
the  law  presumes  injury,  [j) 

The  omission  to  give  such  notice  may,  however,  be  excused, 
by  circumstances  which  rendered  it  impossible,  or  nearly  so. 
The  absconding  or  absence  beyond  reach  of  the  party  to  be 
notified,  {k)  or  the  death  or  sufficient  illness  of  the  party  bound 
to  give  notice,  or  any  sufficient  accident  or  obstruction.     But 

(h)  It  is  so  intimated  in  some  English  (j)  Dennis  v.  Morrice,  3  Esp.  158; 
cases.  Free  v.  Hawkins,  Holt,  550,  8  Norton  v.  Pickering,  8  B.  &  C.  610  ;  Hill 
Taunt.  92.  But  see  Drinkwater  v.  Tel)-  v.  Heap,  Dowl.  &  Ry.  N.  P.  C.  59  ;  De 
betts,  17  Maine,  16;  BoyJ  v-  Clcavclanil,  Bcrdt  r.  Atkinson,  2  H.  Bl.  336. — But 
4  Pick.  525  ;  Taunton  Bank  r.  Richard-  in  Terry  v.  Parker,  6  Ad.  &  El.  502,  it 
son,  5  Pick.  437  ;  Fuller  i\  INIcDonald,  8  was  held,  that  if  the  drawer  of  a  hill  of 
Greenl.  213;  Marsiiall  v.  Mitcliell,  35  exchange  have  no  effects  in  the  hands  of 
Maine,  221  ;  Farmers  Bank  v.  Waples,  4  the  drawee  at  the  time  of  the  drawing  of 
Harring.  429  ;  Hoadley  r.  Bliss,  9  Georgia,  the  bill,  and  of  its  maturity,  and  have  no 
303  ;  Lary  v.  Young,  8  Eng.  (Ark.)  402.  ground  to  expect  that  it  will  tu"  paid,  it  is 
—  Although  a  bill  or  note  has  been  in-  not  necessary  to  present  the  hill  at  matu- 
dorscd  long  after  it  is  overdue,  there  must  rity  :  and  if  it  be  presented  two  days  after- 
still  be  a  demand  and  notice  of  default  in  wards,  and  payment  be  refused,  the  drawer 
order  to  charge  the  indorscr,  because  a  bill  is  liable,  and  the  case  of  De  Berdt  i\  At- 
or  note,  although  overdue,  does  not  cease  kinson  is  denied  to  be  correct.  And  see 
to  be  negotiable.  Dwight  v.  Emerson,  2  a;i^<^age  225,  note  (/)). 
N.  Hamp.  159;BeiTy  v.  Kobinson,  9  (i)  Walwyn  i-.  St.  Quintin,  2  Esp.  516, 
Johns.  121  ;  Grecly  v.  Hunt,  21  Maine,  1  B.  &  P.  65"2;  Bowes  i'.  Howe,  5  Taunt. 
455  ;  Kirkpatrick  v.  McCullock,  3  Hum-  30.  And  see  Crosse  v.  Smith,  1  Maule 
phrcys,  171  ;  Adams  v.  Torbert,  6  Ala.  &  Selwvn,  145;  Bruce  v.  Lvttlc,  13  Barb. 
865.'  163  ;  Chitty  &  Hulme  on  B"ills,  p.  452.  — 
(/i/i)  Woodman  r.Thurston, 8  Cush.  159.  So  war  between  one  country  and  the 
(i)  Drinkwater  v.  Tebbctts,  17  Me.  46  ;  country-  where  the  note  is  payable  excuses 
Lane  f.  Steward, 20  Maine,  98  ;  Berkshire  immrdiate  notice;  but  notice  should  be 
Bank  i'.  Jones,  6  Mass.  524  ;  Buchanan  v.  given  within  reasonable  time  after  peace. 
Marshall,  22  Verm.  561.  Sec  also.  Union  Hopkirk  v.  Page,  2  Brock.  20;  Griswold 
Bank  v.  Hyde,  6  Wheat.  572;  Codding-  v.  Waddington,  16  Johns.  438;  Scholc- 
ton  V.  Davis,  3  Den.  16  ;  Birdr.  LeBlanc,  field  v.  Eichclbcrgcr,  7  Peters,  586. 
6  Louis.  Ann.  470. 

VOL.  I.  21  [241] 


233* 


THE   LAW    OP   CONTRACTS. 


[book  I. 


nothing  of  this  kind  is  a  sufficient  excuse,  provided  the  notice 
could  have  been  given  by  great  diligence  and  earnest  endeavor, 
for  so  much  is  required  by  the  law.  (/) 

*In  general,  the  notice  must  be  given  within  a  reasonable 
time ;  and  what  this  time  is,  is  a  question  of  law  for  the 
court,  (m)  and  each  case  will  be  judged  by  its  circumstances. 
It  may  not,  perhaps,  be  proper  to  say  that  there  is  a  positive 
rule  of  law  on  the  subject,  but  from  the  usage  in  commercial 
places,  and  the  weight  of  authorities,  it  may  be  gathered,  that 
notice  of  non-payment  mat/  be  given  to  parties  liable  to  pay, 
on  the  same  day  on  which  payment  has  been  refused;  (n)  either 
personally  or  by  mail,  as  may  be  proper  under  the  circum- 
stances ;  and  that  it  should  be  given  as  soon  as  on  the  day  fol- 
lowing that  on  which  payment  has  been  refused ;  (nn)  or  by 
the  mail  of  the  same  day,  or  by  the  next  mail  afterwards,  pro- 
vided no  convenient  or  usual  means  intervene.  Where  there  is 
but  one  mail  departing  upon  the  day  succeeding  the  default, 
notice  must  be  sent  thereby  unless  it  depart  before  ordinary 
business  hours  on  that  day.  (o)  But  if  there  be  more  than  one 
mail  it  seems  to  be  considered  that  it  is  sufficient  if  the  notice 


(/)  A  party  is  bound  to  use  reasonable, 
but  not  excessive  diligence.  Sussex  Bank 
V.  Baldwin,  2  Harrison,  487  ;  Bank  of 
Utica  V.  Bender,  21  Wend.  64.3;  Clark  v. 
Bigelow,  16  Maine,  246;  Roberts  v.  Ma- 
son, 1  Ala.  (N.  S.)  373  ;  Preston  v.  Day.s- 
son,  7  Louis.  7  ;  Runyon  v.  Montford,  1 
Busbec's  Law,  371  ;  Manebcster  Bank  v. 
Fellows,  8  Fost.  302. — If  due  diligence  be 
used  it  will  be  sufficient,  altbough  notice 
should  he  sent  to  the  wrong  ])lace.  Bur- 
mester  r.  Barrow,  9  E.  L.  &  E.  402; 
Niehol  V.  Bate,  7  Yerg.  305  ;  Barr  v. 
Marsh,  9  id.  253 ;  Phipps  v.  Chase,  6 
Mete.  491  ;  Barker  v.  Clarke,  20  Mftne, 
156.  And  where  a  party  is  ignorant  of  the 
address  of  the  person  liable  upon  a  bill  or 
note,  it  is  sufficient  if  he  use  reasonable 
diligence  to  ascertain  it,  and  after  having 
ascertained  it,  sends  a  notice  forthwith. 
Dixon  V.  Johnson,  29  E.  L.  &  E.  504. 

(m)  Hussey  v.  Freeman,  10  Mass.  84; 
Nash  V.  Harrington,  2  Aikcns,  9  ;  Had- 
dock V.  Murray,  1  New  Hamp.  140;  Sus- 
sex Bank  v.  lialdwin,  2  Harrison,  488  ; 
Bank  of  Utica  v.  Bender,  21  Wend.  643  ; 
Remer  i\  Downer,  23  id.  620.  —  It  seems 
to  be  in  some  respects  partly  a  question  of 

[  242  ] 


law  and  partly  of  fact.      See  Taylor  v. 
Bryden,  8  Johns.  173;  Ferris  v.  Saxton, 

1  Southard,    1  ;    Scott   v.   Alexander,  1 
Wash.  335  ;  Dodge  r.  Bank  of  Kentuckj', 

2  Marsh.  616. 

(??)  Burbridge  i\  Manners,  3  Campb. 
193;  Bussard  v.  Levering,  6  Wheaton, 
102  ;  Corp  V.  McComb,  1  Johns.  Cas. 
328  ;  Fanners  Bank  v.  Duvall,  7  G.  &  J. 
79  ;  Smith  v.  Little,  10  New  Hamp.  526  ; 
McClane  v.  Fitch,  4  B.  Monroe,  599. 

(ivi)  If  the  parties  reside  in  the  same 
town,  notice  given  at  any  time  on  the  next 
day  after  the  default  is  sufficient.  Grand 
Bank  v.  Blanchard,  23  Pick.  305  ;  Rem- 
ington I'.  Harrington,  8  Ohio,  507  ;  Whit- 
tlesey V.  Dean,  2  Aikcns,  263. 

(o)  Lennox  v.  Roberts,  2  Wheat.  373 ; 
Seventh  Ward  Bank  v.  Hanrick,  2  Story, 
416  ;  Davis  v.  Hanly,  7  Eng.  (Ark.)  647  ; 
Law.son  v.  Farmers'  Bank,  1  Ohio  State 
Reps.  207  ;  Hartford  Bank  v.  Stedman,  3 
Conn.  489  ;  Howard  v.  Ives,  1  Hill,  263; 
Whitwcll  V.  Johnson,  17  Mass.  449  ;  Mit- 
chell ?'.  Degrand,  1  Mason,  176;  United 
States  V.  Barker,  4  Wash.  C.  C.  465  ; 
Chick  V.  Pillslmry,  24  Maine,  458; 
Downs  V.  Planters'  Bank,  1  S.  &  M.  261. 


CU.   XV.] 


mCORSEMENT. 


»234 


be  deposited  in  time  to  go  by  any  mail  of  that  day.  (oo)  In 
London  it  may  be  sent  by  penny  post  to  parties  residing  there. 
If  the  party  live  out  of  town,  then  it  may  be  sent  to  the  post- 
office  nearest  to  his  residence,  (p)  or  it  may  be  sent  to  the 
post-office  where  the  party  usually  receives  his  letters,  although 
not  his  actual  place  of  residence,  (  pp)  And  where  notice  may 
be  properly  given  through  the  post-office,  it  is  sufficient  if  the 
notice  be  deposited  in  the  office  although  it  is  never  received  by 
the  indorser.  (pq)  And  where  an  indorser  receives  notice,  and 
is  bound  to  give  notice  to  other  parties  as  the  condition  of 
making  them  liable  to  him,  he  comes  under  the  same  rule,  and 
*each  successive  indorser  has  until  the  next  day  to  give  such 
notice,  (q)  If  a  bill  is  sent  to  an  agent  for  collection  he  is 
treated  as  a  holder  of  the  note  for  the  purpose  of  giving  notice, 
and  his  principal  has  the  same  time  for  notifying  his  indorsers 
after  receiving  notice  from  the  agent,  as  if  himself  an  indorser 
receiving  notice  from  an  indorsee,  (qq) 


(oo)  WhitwcU  r.  Johnson,  17  Mass. 
449  ;  Housatonic  Bank  v.  Laflin,  5  Cush. 
550  ;  Storv  on  Notes,  ^  324 ;  Carter  v. 
Burlfv.  9  N.  H.  558. 

(/))"S.ott  V.  Liftonl,  9  East,  347  ;  Dun- 
lap  r.  'riioinpson,  5  Yer;xcr,  67  ;  Spann  v. 
Baltzcll,  1  Klor.  302.  —  But  in  ricrce  v. 
IVndar,  5  Mot.  352,  it  was  held,  that 
when  l)Oth  parties  resided  in  the  same 
town,  notice  could  not  l)e  piven  throu<rh 
the  ])Ost-ortice,  and  S/kui;,  ('.  J.,  thus  re- 
marked upon  this  point :  "  The  only  re- 
niainin;^  question  tiieii  is,  whether  notice 
hy  the  post-otlicc  was  sutlicient.  The 
grnmil  ruin  certainly  is,  that  when  the 
indorser  resides  in  the  same  place  with 
the  party  who  is  to  j^ive  the  notice,  the 
notice  must  I)e  };iven  to  tiie  party  person- 
ally, or  at  hisdomicil  or  place  of  husiness. 
I'erhaps  a  diflferent  rule  may  prevail  in 
London,  where  a  ]ienny-])Ost  is  estahlished 
and  rcy:ulated  hy  law,  I)y  whom  letters  arc 
to  he  delivere<l  to  tiie  party  addressed,  or 
at  his  place  of  doinicil  or  liusiness,  on  the 
same  day  they  ;u-e  dcjjositcd.  And  per- 
haps the  same  rule  mi;:ht  not  ap|)ly,  where 
the  ]iarty  to  whom  notice  is  to  he  <riven 
lives  in  the  same  town,  if  it  lie  at  a  distinct 
villajre  or  settlement  where  a  town  is 
lar;;e,  and  there  are  several  post-offices  in 
ditlV-rent  parts  of  it.  But  of  tiiis  we  ;:ive 
no  opinion.  In  the  present  case  the  de- 
fendant had   his  residence  and   place  of 


business  in  the  city  of  Bangor,  and  the 
only  notice  friven  him  was  hy  a  letter,  ad- 
dressed to  him  at  Bangor,  and  deposited 
in  the  post-office  at  that  place.  And  wc 
are  of  opinion  that  this  was  insufficient  to 
charge  him  as  indorser."  In  Green  v. 
Farley,  20  Ala.  322,  where  hoth  indorser 
and  holder  resided  in  Montgomery,  hut 
the  acceptor  resided  in  Mohile,  and  the 
note  was  there  protested,  it  was  held  that 
notice  to  the  indorser  sent  hy  the  jiotary 
through  the  post-office  was  sufficient. 
And  see  Bell  r.  Ilagerstown  Bank,  7 
Gill,  21G;  Morton  v.  Westeott,  8  Cush. 
425. 

(pp)  Morris  v.  Husson,  4  Sandf.  94; 
Bank  of  Louisiana  ;'.  Tournillon,  9  Louis. 
Ann.  Reps.  132. 

iprj)  Bell  V.  Ilagerstown  Bank,  7  Gill, 
21G  ;  Sasscer  i-.  Farmers'  Bank,  4  Maryl. 
409. 

(v)  Darhyshire  »•.  Parker.  6  East,  3  ; 
Smith  r.  Mullett,  2  Camp.  208  ;  Jameson 
r.  Swinton,  2  Camp.  374  ;  Brown  v.  Fer- 
guson. 4  Leigh,  37.  This  rule  is  .so  well 
settled  that,  although  the  party  receiving 
notice  may  easily  have  forwarded  it  the 
same  day,  yet  he  is  not  under  ohiigation 
to  .«end  it  imiil  the  ne.\t  post  after  the  day 
of  its  reception.  Giill  v.  Jeremv,  Mood. 
&  Mai.  61.  See  Hilton  r.  Shepherd,  6 
East,  14,  in  notes. 

(77)  Bank  of  U.  S.  v.  DavLs,  2  Hill, 

[243] 


235* 


THE    LAW    OF    CONTRACTS. 


[book  I. 


If  Sunday  or  any  other  day  intervene,  which  by  law  or  by 
established  usage  is  not  a  day  of  business,  then  it  is  not 
counted,  and  the  obligation  as  to  notice  is  the  same  as  if  it  fell 
on  the  succeeding  day.  (r)  If  a  note  or  bill  payable  without 
grace  falls  due  on  such  a  day,  it  is  not  payable  until  the  next 
day.  But  if  the  last  day  of  grace  falls  upon  such  a  day,  then  it 
is  payable  on  the  day  before ;  for  the  days  of  grace  are  regarded 
as  matters  of  favor,  and  are  abridged  instead  of  being  lengthened 
by  the  intervention  of  such  a  day.  {s) 

The  purpose  of  notice  is,  that  the  party  receiving  it  may 
obtain  security  from  the  party  lialDle  to  him,  for  the  sum  for 
which  he  is  liable  to  other  parties.  No  precise  form  is  neces- 
sary ;  but  it  must  be  consonant  with  the  facts,  and  state  dis- 
tinctly the  dishonor  of  the  bill,  and  either  expressly  or  by  an 
equivalent  implication,  that  the  party  to  whom  the  notice  is 
*sent  is  looked  to  for  the  payment,  (t)     And  it  is  held  by  the 


451  ;  Church  i\  Barlow,  9  Pick.  547  ; 
Lawson  v.  Farmers  Bank,  1  Ohio  State 
Keps.  206. 

(r)  Eagle  Bank  v.  Chapin,  3  Pick.  180; 
Agnew  ?\  Bank  of  Gettysburg,  2  Harris  & 
Gill,  479  ;  Hawkes  v.  Salter,  4  Bing.  715  ; 
Wright?'.  Shawcross,  2  B.  &  Aid.  501,  in 
notes ;  Bray  v.  Hadwen,  5  M.  &  S.  68. 
So  of  public  holidays.  Cuyler  v.  Stevens, 
4  Wend.  566 ;  Lindo  v.  Unsworth,  2 
Camp.  602. 

(s)  Where  days  of  grace  are  allowed, 
and  the  last  of  them  falls  on  Sunday,  the 
fourth  of  July,  or  other  public  holiday,  the 
bill  or  note  is  paj'able  the  day  before. 
Ransom  v.  Mack,  2  Hill,  588  ;  Cuyler  v. 
Stevens,  4  Wend.  566  ;  Sheldon  r.  Ben- 
ham,  4  Hill,  129;  Homes  v.  Smith,  20 
Maine,  264  ;  Tassell  v.  Lewis,  1  Ld. 
Raym.  743;  Haynes  v.  Birks,  3  B.  &  P. 
599  ;  Bussard  t-.  "Levering,  6  Wheat.  102  ; 
Adams  v.  Otterback,  15  How.  539  ;  Lewis 
?j.  Burr,  2  Caines's  Cas.  in  Error,  195; 
Barlow  v.  Planters  Bank,  7  Howard, 
(Miss.)  129  ;  Otfut  ?'.  Stout,  4  J.  J.  Mar- 
shall, 332.  But  if  no  grace  is  allowed, 
and  the  day  on  which  the  bill  or  note  by 
its  terms  falls  due  is  a  holiday,  it  is  not 
payable  until  the  day  after.  Salter  v.  Burt, 
20  Wend.  205  ;  Avery  v.  Stewart,  2  Conn. 
69 ;  Dclamater  v.  Miller,  1  Cowen,  75 ; 
Barratt  v.  Allen,  10  Ohio,  426.  —  If, 
however,  the  nominal  day  of  payment  in 
an  instrument,  which  is  entitled  to  grace, 

r244l 


happens  to  fall  on  a  Sunday  or  a  holiday, 
the  days  of  grace  are  the  same  as  in  other 
cases,  and  payment  is  not  due  until  the 
third  day  after.  Wooley  v.  Clements,  11 
Ala.  220. 

(t)  Hartley  v.  Case,  4  B.  &  C.  339  ; 
Solarte  v.  Palmer,  7  Bing.  530  ;  Boulton 
V.  Welsh,  3  Bing.  N.  C.  688,  remarked 
upon  in  Houlditch  v.  Cauty,  4  id.  411  ; 
Grugeon  v.  Smith,  6  Ad.  &  El.  499 ; 
Strange  v.  Price,  10  id.  125;  Cooke  v. 
French,  id.  131 ;  Furze  v.  Sharwood,  2 
Q.  B.  388;  King  v.  Bickley,  id.  419; 
Robson  V.  Curlewis,  id.  421  ;  Hedger  v. 
Steavenson,  2  Mecs.  &  Wels.  799  ;  Lewis 
V.  Gompcrtz,  6  id.  399 ;  Bailey  *;.  Porter, 
14  id.  44;  Messengers.  Southcy,  1  Man. 
&  Gr.  76  ;  Armstrong  v.  Christian!,  5  C. 
B.  687  ;  Everard  v.  Watson,  18  E.  L.  & 
E.  194  ;  Barstow  v.  Hiriart,  6  Louis.  Ann. 
98  ;  Denegre  v.  Hiriart,  id.  100  ;  Cook  v. 
Litchfield,  5  Sandf.  330 ;  Bcals  v.  Peck, 
12  Barb.  245  ;  Spann  v.  Baltzell,  1  Flor. 
302  ;  Reedy  v.  Scixas,  2  Johns.  Cas.  337  ; 
United  States  Bank  v.  Carneal,  2  Pet. 
543;  Mills  v.  Bank  of  United  States,  11 
Wheat.  431  ;  Shed  v.  Brett,  1  Pick.  401  ; 
Gilbert  v.  Dennis,  3  Met.  495  ;  Pinkham 
V.  Macv,  9  id.  1 74  ;  Dole  v.  Gold,  5  Barb. 
Sup.  Ct.  490 ;  De  Wolf  v.  Murray,  2 
Sandf.  Sup.  Ct.  166;  Youngs  r.  Lee,  2 
Kernan,  551;  Smith  v.  Little,  10 -New 
Hamp.  526  ;  Cowles  v.  Harts,  3  Conn. 
516  ;  Wheatou  v.  AVilmarth,  13  Met.  423 ; 


en.  XV.] 


INDORSEMENT. 


-235 


best  authority,  that  this  implication  arises  from  the  actual 
notice  of  dishonor,  (tt)  Nor  will  a  slight  mistake  in  the  name 
or  description  of  the  note  or  party  vitiate  the  notice,  unless  the 
party  receiving  it  is  misled  thereby,  (ii)  Any  party  may  give 
notice,  and  it  will  inure  to  the  benefit  of  every  other  party,  (mi) 
provided  the  party  giving  the  notice  be  himself  the  holder  or  an 
indorser  already  fixed  by  notice,  (uv)  and  gives  the  notice  to 
the  party  sought  to  be  charged,  within  one  day  after  the  dis- 
honor, or  after  receiving  notice  himself,  {^nc)  But  notice  given 
to  one  party  does  not  hold  another;  thus  if  a  second  indorser 
having  notice,  and  thereby  being  bound,  neglects  to  give  notice 
to  the  first  indorser,  the  latter  would  not  be  liable,  (v) 

After  the  holder  of  a  dishonored  bill  or  note  has  given  due 
notice  to  indorsers,  he  may  indulge  the  acceptor  or  maker  with 
forbearance  or  delay,  without  losing  his  claim  on  the  indorsers, 
provided  he  retains  the  power  of  enforcing  payment  at  any 
moment,  (w)  But  if  he  makes  a  bargain  for  delay,  promising 
it  on  a  consideration  which  makes  the  promise  binding,  or  un- 
der his  seal,  this   destroys   his  claim   against  the   indorsers.  {x) 


Cayufra  County  Bank  ''v.  Warden,  1 
Comst.  413;  Piatt  v.  Drake,  1  Doujr. 
(Mich.)  296;  Spies  v.  Ncwl.crry,  2  id. 
425 ;  Bank  of  Cape  Fear  v.  Suwell,  2 
Hawks,  r)60.  See  also,  1  Am.  Leading 
Ca.«es,  2.'n-237  ;  Boelune  r.  Carr,  3 
Marvl.  202  ;  Farmers  Bank  r.  BAwie,  4 
id.  290  ;  Woodin  v.  Foster,  IG  Barli.  14G. 
And  if  a  party  to  a  note  drives  positive 
notice  of  dislionor,  wliicli  afterwanls  turns 
out  to  lie  true,  it  is  inmiaterial  whether  lie 
had  knowledjjfe  of  the  fact  at  tlie  time 
wlicn  he  <^ave  the  noti<e  or  not.  Jennings 
r.  Rohert*!,  29  E.  L.  &  E.  118. 

(tt)  Chard  v.  Fox,  14  Q.  B.  200;  Gra- 
ham r.  Saujiston,  1  Marvl.  60;  Mills  r. 
Bank  of  United  States,  l"l  Wheat.  431  ; 
Metcalfe  v.  Kiehardson,  20  E.  L.  &  E. 
301. 

(u)  Mcllcr.sh  V.  Tiippen,  11  E.  L.  &  E. 
."iSg;  Smith  r.  Whitin-jr,  12  JIasa.  6; 
Toheyv.  Lennijr,  14  Penn.  483  ;  Cayuga 
County  Bank  v.  Warden,  2  Held."  19; 
Snow'r.  Perkins.  2  Mich.  239;  llousa- 
tonic  Bank  r.  Latlin,  ."i  Cush.  546. 

(iiu)  Chapman  r.  Keanc,  3  Ad.  &  El. 
193,  overruling  Tiiidal  c.  Brown,  1  T.  K. 
167,  2  id.  186,  n.,  and  Ex  partf  Barclay, 
7  Ves.  597;  Beal's  Adm'r  c.  Alexander, 
6  Tex.  531 .     But  the  notice  must  be  given 

21* 


l)y  a  party  to  the  bill.  If  given  by  a 
stranger  it  will  not  suffice.  Jameson  v. 
Swinton,  2  Camp.  373 ;  Chanoine  r. 
Fowler,  3  Wend.  173  ;  Wilson  v.  Swabey, 
1  Stark.  34.  So  in  case  of  non-acceptance, 
notice  to  the  drawer  by  the  drawee  will 
not  avail,  for  the  latter  is  not  a  party. 
Stanton  i-.  Blossom,  14  Mass.  116. 

(hi;)  Lysaft  v.  Bryant.  9  Com.  B.  46. 

(««-')  Brown  v.  Ferguson,  4  Leigh,  37  ; 
Simpson  i-.  Turney,  5  Humph.  419.  Sec 
also.  Turner  v.  Leech,  4  B.  &  Aid.  451  ; 
Howe  V.  Tipper,  20  E.  L.  &  E.  220,  and 
note. 

(v)  Morgan  v.  Woodworth,  3  Johns. 
Cas.  90. 

(w)  Pole  V.  Ford,  2  Chitty,  125  ;  Phil- 
pot  V.  Briant,  4  Bing.  717;  Baduall  v. 
Samuel,  .3  Price,  521  ;  W.ilwyn  v.  St. 
Quiutin,  1  B.  &.  P.  652  ;  McLcmore  v. 
Powell,  12  Wheat.  554  ;  Bank  r.  Mvers, 
1  Bailey.  412;  Planters'  Bank  v.  Sell- 
man,  2  Gill  &  Johns.  230  ;  Gahn  r.  Niem- 
ccwicz,  11  Wend.  312;  Frazicr  r.  Dick, 
5  Hol>.  (Louis.  Hep.)  249;  Walker  r. 
Bank  of  Mont.  Co.  12  Serg.  v^  Hawle, 
382 ;  Freeman's  Bank  v.  Hollins,  13 
Maine,  202. 

(j)  Clarke  r.  Henty,  3  Y.  &  C.  187  ; 
Greelv  v.  Dow,  2  Met'.  176;  Wharton  v. 

[245] 


236*  THE   LAW   OP   CONTRACTS.  [BOOK   I. 

The  reason  is,  that  he  ought  not  to  claim  payment  of  the 
indorsers,  unless,  on  payment,  he  could  transfer  to  them  the  bill 
or  note,  with  a  full  right  to  enforce  payment  at  once  from  the 
acceptor  or  maker.  But  he  *could  give  them  no  such  right  if 
he  had,  for  good  consideration,  given  to  the  acceptor  or  maker 
his  promise  that  they  should  not  be  sued. 

It  has  been  a  subject  of  some  discussion  whether  the  above 
rule  applies  in  cases  of  assignments  in  insolvency.  Bankrupt 
and  insolvent  laws  usually  provide  that  the  discharge  of  the 
bankrupt  or  insolvent  shall  not  discharge  his  indorsers  or  sure- 
ties ;  and  it  is  sometimes  attempted  to  effect  the  same  result 
in  voluntary  assignments  in  insolvency.  The  indentures  con- 
tain a  provision  that  the  creditors  who  become  parties  to  them 
discharge  the  insolvent;  but  they  also  contain  a  further  provis- 
ion that  the  indorsers  or  sureties  shall  not  be  discharged.  And 
the  question  has  been  whether  the  indorsers  or  sureties  are  dis- 
charged notwithstanding  this  provision.  But  we  think  the  rea- 
son of  the  rule  which  discharges  them,  does  not  hold  in  this 
case.  For  where  the  debtor  himself  stipulates  that  his  dis- 
charge shall  not  prevent  his  creditors  from  having  recourse  to 
his  indorsers  or  sureties,  it  must  be  understood  that  he  binds 
himself  not  to  oppose  such  discharge  to  a  suit  against  himself 
by  the  indorsers  or  sureties,  if  they  are  held  liable  to  his  credi- 
tors by  reason  of  a  provision  which  he  himself  expressly  makes. 
The  reason,  therefore,  fails,  which  generally  makes  his  dis- 
charge their  discharge.  And,  it  may  be  added,  that  it  is  for 
their  benefit  that  this  provision  should  be  carried  into  effect. 
For  if  his  discharge  necessarily  operated  their  discharge,  credi- 
tors would  naturally  prefer  a  claim  against  them  to  the  divi- 
dend of  an  insolvent,  and  would  therefore  take  nothing  from  him, 
but  all  from  them.  Whereas  if  this  clause  permits  them  to  get 
what  they  can  from  the  insolvent,  and  look  to  the  indorsers  or 
sureties  only  for  the  balance,  they  would  always  do  so,  and  the 


Williamson,    13   Penn.    273.      See    also  take  security  of  the  acceptor  and  then  re- 
Moss  V.  Hall,  5  Exch.  46.     Unlike,  how-  lease  it   without  his   consent.      Hurd   v. 
ever,  the  case  of  a  surety,  a  party  liable  on  Little,  12  Mass.  503;  Pitts  r.  Congdon, 
a  bill-as  indorscr  will  not  be  discharged,  2  Comst.  352. 
though  the  party  for  whom  he  is  bound 

[246] 


I 


CH.  XV.] 


INDORSEMENT. 


»237 


sureties  would  have  the  benefit  of  whatever  was  paid  by  way 
of  dividend.  (//) 


♦SECTION    X. 

OF   PROTEST. 


If  a  foreign  bill  be  not  accepted,  or  not  paid  at  maturity,  it 
must  be  protested  at  once  ;  and  this  should  be  done  by  a  notary- 
public,  to  whose  official  acts  under  his  seal,  full  faith  is  given  in  all 
countries,  (z)  Inland  bills  are  generally,  and  promissory  notes 
very  often  protested  in  like  manner,  but  this  is  not  required  by  the 
law  merchant,  (a)  and  the  notary's  certificate  of  protest  would 
not  in  such  case  be  evidence  of  dishonor,  (aa)  If  the  bill  be 
protested  for  non-acceptance  by  the  drawee,  any  third  person 
may  intervene,  and  accept  or  pay  the  bill,  for  the  honor  of  the 
drawer  or  of  any  indorser ;  and  such  acceptance  supra  protest 
has  the  same  effect  as  if  the  bill  had  been  drawn  on  him.  He 
is  liable  in  the  same  way,  and  he  has  his  remedy  against  the 
person  for  whom  he  accepts,  and  all  prior  parties  with  notice ; 


(y)  Parke,  B.,  Kcarslcy  v.  Cole,  16  M. 
&  W.  135  ;  Ex  parte  Giftbrd,  6  Ves.  805  ; 
Boultbce  ?.'.  Stul)l)S,  18  Ves.  20;  Ex  parte 
Glondinniiif:,  Buck's  C:i.«cs  in  B;uikruptrv, 
517;  Nicholson  v.  Hevill,  4  Ad.  &  Ell. 
675  ;  Lewis  v.  Jones,  4  B.  &  C.  506,  and 
note;  Nichols  v.  Norris,  3  B.  &  Ad.  41  ; 
Clagett  V.  Salmon,  5  Gill  &  Johns.  314; 
Owen  V.  Iloman,  3  E.  L.  &  E.  112;  rricc 
V.  Barker,  30  E.  L.  &  E.  157  ;  Sohicr  r. 
Lorinjc,  6  Cush.  537. 

(;:)  Gale  i-.  Walsh,  5  T.  II.  239  ;  Brj-- 
den  V.  Tavlor,  2  liar.  &  Johns.  396; 
Townsley  v.  Sinnrall,  2  Pet.  170.  And 
the  duty  of  the  notary  eannot  he  performed 
hy  an  a^cnt  or  elerk.  ()nonda<;a  County 
Bank  c.  Bates,  3  Hill,  52;  Cole  y.  Jcssup, 
9  Barh.  393. 

(a)  Windlc  v.  Andrews,  2  B.  &  Aid. 
696;  Bonar  v.  Mitchell,  5  K.\cli.  415; 
YounR  c.  Brvan,  6  Wheat.  146;  Bnrkc 
V.  McCay,  2  ilow.  (U.  S.)  66.  —  Whether 
a  hill  drawn  in  one  of  the  United  States 
u])on  persons  resident  in  another  he  a 
foRisn  hill  so  a-s  to  roquiro  a  ])rotest  in 
case  of  non-acce])tance  or  non-payment, 
is  a  4uestioii  eonccrning  which  there  has 


been  a  difference  of  judicial  opinion.  It 
has  l)een  held  in  New  York  and  Connecti- 
cut that  such  hills  are  not  foreij^u.  Miller 
V.  Ilackley,  5  Johns.  375  ;  Bay  v.  Church, 
15  Conn.  15.  But  the  ciise  in  New  York 
has  heeu  since  overruled  in  the  same  juris- 
diction ;  and  in  the  other  States  where  the 
question  ha.s  arisen,  and  in  the  Supi-erae 
Court  of  the  United  States,  a  contrary 
opinion  has  heen  held.  Duncan  v.  Cotirsc, 
1  Const.  Rep.  100 ;  Cape  Fear  Bank  v. 
Stinemctz,  1  Hill,  (S.  C.)  44  ;  Lonsdale 
V.  Brown,  4  Wash.  C.  C.  148  ;  Phoenix 
Bank  r.  Hussey,  12  Pick.  483  ;  Brown  v. 
Ferfruson,  4  Lei^h,  37  ;  Hallidav  r.  Mc- 
Dou^rall,  20  Wend.  81  ;  Carter  i\  Burley, 
9  N.  H.  558;  Buckncr  r.  Finley,  2  Pet. 
586 ;  Schneider  v.  Cochrane,  9  Louis. 
Ann.  lieps.  235.  This  is  in  accordance 
with  the  doctrine  of  Mahony  v.  Ashlin,  2  B. 
&  Ad.  478,  where  a  hill  drawn  in  Iivland 
upon  a  person  resident  in  England  was 
hehl  to  he  a  forcii.'n  hill. 

(aa)  Union  Bank  v.  Hyde,  6  Wheat. 
574 ;  Taylor  v.  Bank  of  Illinois,  7  Mon. 
580;  Bank  of  U.  S.  r.  Leathers,  10  B. 
Mon.  64;  Carter  v.  Burley,  9  N.  IL  558. 

[247] 


238* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


and  if  he  pays  the  bill  for  an  indorser  he  stands  in  the  position 
of  an  indorsee  for  value.  (t>)  And  this  is  true  although  the 
acceptance  is  at  the  request  and  for  the  *honor  of  the  drawee 
after  his  refusal,  (c)  The  holder  is  not  bound  to  receive  an 
acceptance  supra  protest,  (d)  but  must  receive  payment  if  ten- 
dered to  him  supra  protest.  But  after  a  general  acceptance 
by  the  drawee  there  can  be  no  acceptance  supra  protest,  and 
a  third  party  can  only  add  his  credit  to  the  bill  by  a  collat- 
eral guaranty,  (e)  If  the  bill  designates  a  third  party  to  whom 
recourse  is  to  be  had  on  non-acceptance,  it  is  said  that  this 
direction  must  be  obeyed.  (/) 

SECTION    XI. 

ON   DAMAGES   FOR   NON-PAYMENT   OF    BILLS. 


If  a  bill  of  exchange  be  not  paid  at  maturity,  the  holder  may 
at  once  redraw  on  the  drawer  or  indorser,  not  only  for  the  face 
of  the  bill,  but  for  so  much  more  as  shall  indemnify  him;  and 
therefore  for  so  much  as  shall  cover  the  necessary  costs  of  pro- 
test, notice,  commissions,  and  whatever  further  loss  he  sustains 
by  the  current  rate  of  exchange  on  the  place  where  the  drawer 
or  indorser  resided,  (g-)  This  is  the  rule  of  the  law  merchant; 
but  in  this  country,  instead  of  reexchange,  or  damages  to  be 
ascertained  by  a  reference  to  the  above  items  of  loss,  established 
rates  of  damage  are  fixed  by  statute  or  by  usage.  (//)      These 


(b)  Holt,  C.  J.,  in  Mutford  v.  Walcot, 
1  Ld.  Ruvm.  574 ;  Merteiis  v.  Winning- 
ton,  1  Esp.  112;  Goodliall  v.  Polhill,  1 
C.  B.  233  ;  Goralopulo  v.  Wider,  3  E.  L. 
&E.  515  ;  Wood  r.  Pnjih,  7  Ohio,  Part.  2, 
164;  Baring  v.  Clark,  19  Pick.  220. 
Tiie  pa^'ur  supra  protest  for  tlie  lionor  of 
the  indorser  cannot  hold  such  indor- 
ser liable,  if  he  have  already  been  dis- 
charged by  reason  of  want  of  notice  of 
the  non-acceptance.  When  a  party  has 
once  been  exonerated,  his  liability  cannot 
be  revived  without  his  assent.  Higgins  v. 
Morrison,  4  Dana,  100. 

(c)  Koiiig  V.  Bayard,  1  Pet.  250. 
{(I)  Mhford  V.  Walcot,  12  Mod.  410. 
(e)  Jackson  I,'.  Hudson,  2  Camp.  447. 
(/)  Story  on  Bills  of  Exchange,  §§  Go, 

219. 

[248] 


(//)  Mellishu.  Simeon,  2  H.  Bl.  378; 
De  Tastet  v.  Baring,  1 1  East,  265  ;  Graves 
V.  Dash,  12  Johns.  17,  (overruling  Hend- 
ricks r.  Franklin,  4  Johns.  119)  ;  Denston 
V.  Henderson,  13  id.  322.  The  holder 
may  also,  U])On  protest  for  nou-accepitunce, 
without  waiting  for  jjrotest  upon  non-pay- 
ment, maintain  an  action  against  the 
drawer  or  indorser,  and  recover  all  the 
customary  damnges.  Weldon  v.  Buck,  4 
Johns.  144;  Whitehead  v.  Walker,  9  M. 
&  W.  506.  But  the  acceptor  is  not  liable 
for  reexchange.  Woolscy  v.  Crawford,  2 
Camp.  445 ;  Napier  i\  Schneider,  12 
East,  420 ;  Sibcly  v.  Tut,  1  M'Mullan's 
Equity  Rep.  320. 

{h)  Hendricks  i'.  Franklin,  4  Johns.  119, 
per  Spencer,  J.  ;  Parsons,  C.  J.,  in  Grim- 
shaw  V.  Bender,  6  Mass.  157. 


en.  XV.] 


INDORSEMENT. 


*239 


rates  are  larger  in  proportion  to  the  distance  of  the  place  where 
the  drawee  resides,  from  the  place  where  the  bill  is  drawn. 
And  it  may  be  regretted  that  more  uniformity  does  not  pre- 
vail among  the  several  States  in  relation  to  this  matter.  It 
seems  to  be  settled  by  the  weight  of  authority,  that,  in  deter- 
mining the  amount  of  reexchange,  the  actual  or  mercantile  par 
or  valuation  of  money  *should  be  regarded,  and  not  the  mere 
legal  or  nominal,  which  as  between  this  country  and  England, 
differs  very  widely  from  the  true  value,  {i) 


SECTION    XII. 

BILLS   OF   LADING. 

These  documents  are  also  by  the  law  merchant  now  treated 
as  negotiable  instruments  to  a  certain  extent.  The  master  by 
signing  such  bill  promises  to  deliver  the  goods  to  A.  B.  "  or  his 
assigns."  If  A.  B.  indorses  the  bill  to  any  person,  or  in  blank, 
delivering  it  to  any  person,  that  constitutes  such  person  his 
assignee,  and  vests  in  him  a  property  in  the  goodtj,  and  he  may 
claim  the  goods  of  the  captain  or  owners  in  the  place  of  the  per- 
son j)utting  them  on  board,  and  with  the  same  rights.  (J)  But 
a  bill  of  lading  is  rather  quasi  negotiable  than  actually  so,  the 
effect  of  the  indorsement  being  only  to  transfer  the  property  in 
the  goods  and  not  the  right  upon  the  contract  itself,  and  the 
indorsee  cannot  maintain  an  action  on  the  bill  itself  in  his  own 
name,  nor  an  action  on  the  case  for  the  non-delivery  of  the 
goods.  {Jj)  And  a  mere  memorandum  of  shipment  would  not 
have  the  force  nor  the  negotiability  of  a  bill  of  lading,  (k)  nor 


(i)  Scott  V.  Bcvan,  2  B.  &  Ad.  78; 
Smith  V.  Sliaw,  2  Wasli.  C.  C.  167  ; 
Grant  v.  Iloalov,  3  Siiinner,  523. 

(_;■)  Lickl.aiTow  v.  Mason,  2  T.  R.  71  ; 
Ncwsoiii  r.  Tliointoii,  6  East,  41  ;  Ik'rk- 
Icy  V.  Watlinp,  7  Ad.  &  El.  39,  2  Nev. 
&'Pcr.  178;  ISaltus  v.  Everett,  20  Wend. 
268;  Cliandler  v.  Belden,  18  Johns.  157; 
Rvher-  v.  Snell,  2  Wash.  C.  C.  294.  In 
Renteria  r.  Rudin^j:,  1  Moody  «&  Malk. 
511,  Lord  Triitirdtt  said  that  a  hill  of 
hiding,  in  wiiich  the  word  "  assigns  "'  did 


not  appear,  was  nevertheless  "  an  indorsa- 
hle  instrument,"  and  lussignahle  hy  such 
indorsement. 

(_;}')  Thr)mpson  r.  Dominey,  14  M.  & 
W."'403;  Howard  v.  Shepherd,  9  Com. 
Ikneh,  297  ;  Dows  r.  Cohh,  12  Barh. 
310;  Linckcr  i>.  Aycshford,  1  California, 
75.  Sec  also  Rowley  r.  Bigelow,  12 
Pick.  314  ;  Stanton  v.  Eager,  16  I'iek. 
474;  Tindal  v.  Tavlor,  4  Ellis  &  Black. 
219. 

(A)  Sec  Jeukyns  v.  Ushomc,  13  Law  J. 

[249] 


240* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


will  the  property  in  goods,  for  which  a  bill  of  lading  has  been 
given,  pass  by  a  mere  delivery  of  the  bill  without  indorsement, 
(/)  or  by  indorsement  without  delivery.  (11) 


SECTION    XIII. 

OF  PROPERTY   PASSING   WITH   POSSESSION. 

By  the  common  law,  one  who  has  no  title  to  a  chattel  can 
give  no  title,  except  by  a  sale  in  market  overt,  which  is  not 
known  in  this  country.  An  exception  exists  in  the  case  of 
negotiable  notes  made  payable  to  bearer,  or  payable  to  order 
and  indorsed  in  blank,  so  as  to  be  transferable  by  delivery,  (m) 
*We  consider  that  this  exception  extends  to  all  negotiable  in- 
struments which  are  transferable  by  mere  delivery  by  any 
party  holding  them ;  and  that  by  delivery  thereof,  a  good  title 
passes  "  to  any  person  honestly  acquiring  them  ; "  (ti)  because 
the  property  passes  with  the  possession.  It  becomes,  then, 
important  to  determine  what  are  negotiable  instruments.  If, 
for  example,  the  bond  of  a  railroad  company,  payable  to  bearer, 
is  a  negotiable  instrument,  then  a  purchaser  in  good  faith 
holds  it  not  only  free  from  the  equitable  defences  which  the 
company  might  have  made  against  the  first  holder,  but  also 
against  the  claims  of  an  owner  who  may  have  lost  it,  or  from 
whom  it  was  stolen.  The  discussion  of  this  subject  belongs 
rather  to  the  topic  of  Construction  of  Contracts,  under  which  it 
will  be  more  fully  considered.  It  may,  however,  be  said  here, 
that  we  regard  the  English  authorities  as  making  all  instru- 
ments negotiable  which  are   payable  to   bearer   and   are   also 


(N.  S.)  C.  P.  196;  Brant  v.  Bowlbr,  2 
B.  &  Ad.  932. 

(/)  Stone  V.  Swift,  4  Pick.  389.  But 
see  Walter  v.  Koss,  2   Wasii.  C.  C.  283. 

(//)  Buffincjton  v.  Curtis,  15  Mass.  528; 
Allen  V.  Williams,   12   Pick.   297. 

(?n)  Miller  v.  Ilace,  1  Burr.  452. 

(n)  So  said  by  Abbott,  C.  J.,  in  Gor- 
gier  V.  Mieville,  3  B.  &  Cr.  45.  In 
Clark  V.  Slice,  Cowper,  197,  Lord  Maiis- 
[250] 


Jield  puts  notes  and  money  on  precisely 
the  same  footing.  "  When,"  says  he, 
"  money  or  notes  are  paid  bond  fide,  and 
upon  a  valuable  consideration,  they  never 
shall  be  brought  back  by  the  true  owner ; 
but  where  they  come  mala  jide  into  "a  per- 
son's hands,  they  arc  in  the  nature  of  spe- 
cific property;  and  if  tlieir  identity  can 
be  traced  and  ascertained,  the  i^arty  has 
a  right  to  recover." 


en.  XV.] 


INDORSEMENT. 


•241 


customably  transferable  by  delivery,  (o)  within  which  defini- 
tion we  suppose  that  the  common  bonds  of  railroad  companies 
would  fall.  Of  the  coupons  attached,  which  have  no  seal,  this 
would  seem  to  be  probable.  But  usage  must  have  great  in- 
fluence in  determining  this  question. 

If  the  owner  of  a  note  or  bill  not  negotiable,  or  specially  in- 
dorsed to  him,  lose  it,  he  may,  on  sufficient  proof  of  its  *tenor 
and  of  his  loss,  sustain  an  action  at  law,  because  no  finder  can 
give  good  title  to  any  holder  by  a  bond  fide  sale  to  him.  (/?) 
But  if  the  paper  be  negotiable  and  indorsed  in  blank,  or  if  it  be 
payable  to  bearer,  then  the  promisor  or  indorser  may  be  held 
liable  to  an  innocent  holder  for  consideration.  It  follows, 
therefore,  that  the  promisor  or  indorser  should  not  be  liable  to 
the  loser,  without  sufficient  indemnity  to  him  against  the  pos- 
sible demand  of  such  innocent   purchaser,  [q)     But  courts  of 


(o)  Sec  Gorf,ncr  v.  Micville,  3  B.  &  Cr. 
45,  and  compare  it  witli  Glyn  v.  Baker, 
13  Ilast,  509.  See  also,  Wookey  v.  Pole, 
4  B.  &  Aid.  1  ;  Grant  v.  Vaughan,  3 
Burr.  1516,  where  a  draft  by  a  mercliant 
on  liis  banker  was  held  negotiable.  This 
case  distinetly  confirms  the  case  of  Miller 
V.  Race.  See  Lickbarrow  v.  Mason,  5 
T.  U.  G83,  rcspcctinj^  bills  of  la(lin<;,  be- 
fore cited.  Zwin^r  ;;.  Samuda,  7  Taunt. 
265;  Lucas  v.  Dorrien,  7  Taunt.  278; 
Lan}^  V.  Smith,  7  Bing.  284,  in  which 
case  it  was  held  that  certain  hordtrnunx 
and  coitjioiis,  entitling  the  bearer  to  cer- 
tain portions  of  the  public  debt  of  Xajilcs, 
were  not  negotiable,  the  jury  finding  that 
they  did  not  usually  pass  from  hand  to 
hand  like  money.  Taylor  v.  Kymer,  3 
B.  &  Ad.  321,  and  Taylor  v.  Trueman,  1 
Moody  &  Malk.  453,  were  decided  on  the 
construction  of  St.  G  G.  4,  c.  94.  But 
nn  instrument  for  the  payment  of  money 
under  sral  is  not  negotiaiile,  altiiough  it 
appear  to  lie  so  u]mn  its  face ;  at  least 
where  any  writing  is  necessary  in  onler  to 
transfer  it.  Clark  v.  Fanners'  Man.  Co. 
15  Wend.  25f.  ;  Parkr,  Biiron,  in  Hil)ble- 
white  V.  McMorinc,  6  Mees.  &  Wels. 
200.  In  Fisher  v.  The  Murris  Canal  and 
Banking  Company,  deciiled  in  the  Su- 
jircme  Court  of  New  Jersey  in  1 855,  it  was 
held  that  railroad  bonds  are  negotiable, 
and  this  case  was  fully  concurred  in  by  the 
Court  of  Appeals.  Delatielil  *•.  Illinois, 
2  Hill,  159,  is  generally  regarded  as  hav- 


ing settled  the  same  point  in  New  York, 
in  reference  to  State  bonds.  But  the 
Court  of  Appeals  in  the  Schuyler  case, 
held  that  certificates  of  stock  in  a  corpo- 
ration arc  not  negotiable  ;  or  at  least,  that 
he  who  takes  an  assignment  of  a  certifi- 
cate without  any  transfer  in  the  corpora- 
tion's books  acquires  only  the  title  of  the 
assignor.  Mechanics'  Bank  v.  New  York 
and  New  Haven  R.  R.  Co.,  New  York 
Court  of  A])peals,  June,  1850.  The  re- 
sult would  seem  to  be  that  all  corpora- 
tion bonds  and  government  stocks  which 
pass  by  delivery  or  indorsement  with  de- 
livery are  negotiable,  but  that  certificates 
of  stock  in  a  coi"poration  are  not. 

(/>)  Wain  V.  Bailey,  10  Ad.  &  El.  616. 

(7)  Pierson  r.  Hutchinson,  2  Campb. 
211  ;  Hansard  v.  Robinson,  7  B.  &  C. 
90-^  Clay  r.  Crowe,  18  E.  L.  &  E.  514; 
Davis  V.  Dodd,  4  Taunt.  602;  Poole  v. 
Smith,  1  Holt,  144;  Rowley  v.  Ball,  3 
Cow.  303  ;  Kirby  v.  Sisson,  2  Wend. 
550.  But  evidence  is  admissible  to  show 
that  the  note  has  been  actualhi  dfalroi/rd, 
or  that  it  ntnnot  come  to  the  hamls  of  a 
Ix'iin  Jhh'  holder.  K(}lt  r.  Watson,  4  Bing. 
27.3;  Rowley  v.  Ball,  itii/mi.  The  case 
wliere  a  bank-bill  is  cut  in  halves  and  one 
of  them  is  lost,  and  payment  sought  for 
tiie  other,  would  seem  to  stand  ui)on  the 
same  grounds  as  that  of  a  lost  negotiable 
instrument.  Mayor  v.  Johnson,  .3  Camp. 
324.  But  see  Bullet  v.  Bank  of  Penn- 
sylvania,  2    Wash.    C.   C.    172;    Pattoa 

[251] 


K 


241- 


THE   LAAV   OF   CONTRACTS. 


[book  I. 


law  find  it  difficult  to  require  such  indemnity,  or  to  judge  of  its 
sufficiency  ;  and  therefore,  generally  at  least,  they  turn  the  loser 
over  to  courts  of  equity,  in  which  the  defendant  may  be  prop- 
erly secured  by  adequate  indemnity ;  and  then  the  action  will 
be  maintained.  (/•) 


V.  State  Bank,  2  Nott  &  McCord,  464 ;         (r)  Pierson  v.   Hutchinson,  2   Campb. 

Hinsdale  v.  Bank  of  Orange,  6   Wend.  211;  Jjord  Eldon,  in  Ex  parte  Greenway, 

378.  6  Ves.  812. 

[252] 


CII.    XYI.]  INFANTS.  242 


CHAPTER     XVI. 


INFANTS. 


Tn  general,  all  persons  may  enter  into  contracts ;  and  when 
a  contract  is  made  the  law  presumes  the  competency  of  the 
parties.  If,  therefore,  a  party  rests  his  action  or  his  defence 
upon  his  incompetency,  this  must  be  proved,  (s)  This  incom- 
petency may  be  absolute  and  entire,  or  limited  and  partial,  in 
some  cases  a  contract  is  void  as  to  both  parties,  and  in  other? 
only  as  to  one  ;  in  some  cases  void,  and  in  others  voidable. 
We  shall  consider  these  questions  as  we  proceed. 

As  the  essence  of  a  contract  is  an  assent  or  agreement  of  the 
minds  of  both  parties,  where  such  assent  is  impossible,  from  the 
want,  immaturity,  or  incapacity  of  mind,  there  can  be  no  per- 
fect contract.  On  this  ground  rests,  originally,  the  disability 
of  infants.  We  will  first  consider  this  class  of  disabled  per- 
sons. 


SECTION    I. 

mCAPACITY   OF   INFANTS   TO    CONTRACT. 

All  persons  are  denominated  infants,  by  the  common  law, 
until  the  age  of  twenty-one.  But  in  some  parts  of  this  country 
females  reach  majority,  at  least  for  some    purposes,  at  eigh- 

(s)  Jcnnc    V.    Wanl,    2    Stark.    326;  time,  (lieforc  the  suit  was  commenced,) 

Leader  v.  Barry,  1  Esp.  35.T  ;  Henderson  and  the  defendant  must  i>rove  that  ho  was 

r.  Clarke,  27   Miss.  43G.     Not  only  is  a  still  a  minor  at  the  time  of  such  ratitica- 

defcndant,  who  sets  up   his  infancy  as  a  tion.     Bay  v.  Gunn,  1  Denio,  108;  Bortli- 

defence  to  his  contract,  hound  in  the  first  wick  )•.  Carruthers,  1  T.  U.  648  ;  Ilartlev 

instance  to  prove  his  non-a^'c  affirmatively,  i-.  Wharton,  1 1  Ad.   &  El.  934.  —  If  the 

hut  if  to  sudi  a  jilea  the  plaintifV  reply  a  infant  leave   the   |>oint  in  doubt,  the  dc- 

new  promise,  afJer  the  dt'fendnnt  l>rcaine  of  fence  is  not  sustained.     Harrison  v.  Clif- 

aije,  he  may  show  a  new  promise  at  any  ton,  17  Law  Jour.  Ex.  233. 

VOL.  I.  22  [  253  ] 


243* 


THE   LAAT   OF   CONTRACTS 


[book  I. 


teen,  (t)  A  person  is  of  full  age  at  the  beginning  of  the  last 
day  of  his  twenty-first  year;  or  the  day  before  his  twenty-first 
birthday.  This  rule  is  founded  upon  an  ancient  authority,  and 
upon  the  principle  that  the  law  recognizes  no  parts  of  a  day, 
and  therefore  when  the  last  day  of  the  last  year  begins,  it  is 
considered  as  ending.  (U)  A  similar  rule  as  to  infancy  prevailed 
in  the  Roman  civil  law.  (tit)  An  infant,  using  the  word  in  its 
common  *meaning,  that  of  a  child  who  has  not  left  its  mother's 
arms,  cannot  make  a  contract  in  fact ;  but  most  children  who 
are  a  few  years  old  are  capable  of  making  a  contract.  And 
when  the  law  says  that  they  are  not  capable  until  the  age  of 
twenty-one,  it  is  for  their  sake,  and  by  way  of  protection  to 
them.  If  we  keep  this  principle  distinctly  in  mind  it  will 
guide  us  through  the  intricacies  of  the  law  in  relation  to  this 
subject. 

Thus,  as  a  general  rule,  the  contract  of  an  infant  is  said  to 
be  not  void,  but  voidable.  That  is,  he  may,  either  during  his 
minority,  or  within  a  reasonable  time  after  he  becomes  of 
age,  (u)  avoid  the  contract  if  he  will,  or  when  he  reaches  the 
age  of  twenty-one,  if  he  sees  it  to  be  for  his  benefit,  and  chooses 
so  to  do,'  he  may  confirm  and  enforce  the  contract.  It  has 
been  said  that  whatever  contract  the  court  can  see  and  declare 
to  be  to  his  prejudice,  that  will  be  pronounced  void  ;  and  what- 
ever contracts  are  not  clearly  to  his  prejudice,  but  may  be  use- 
ful, these  wiU  be  held  voidable.  And  in  reliance  on  this  prin- 
ciple as  a  safe  and  sufficient  rule,  an  infant's  warrant  of  attor- 


(t)  Sparhawk  v.  Buell,  9  Verm.  42,  79. 

{it)  There  seems  to  have  been  but  one 
case  on  this  question,  in  England,  report- 
ed, under  the  name  of  Herbert  v.  Turball, 
in  1  Keble,  .589,  and  in  Siderfin,  162,  and 
without  names  in  1  Salkeld,  44,  and  re- 
ferred to  as  good  law  in  2  Salk.  625,  in 
Lord  Ilaym.  480,  and  in  Com.  Dig.  En- 
fant, A ;  and  the  rule  is  repeated  in  all 
the  text-books.  The  reason  is  analogous 
to  that  which  made  the  old  law  writers 
speak  of  a  year  and  a  day,  when  they 
mean  a  whole  day.  The  same  rule  is  as- 
serted in  Hamlin  v.  Stevenson,  4  Dana, 
597,  and  in  State  v.  Clarke,  3  Harrington, 
557. 

(tu)  Savigny,  Dr.  Rom.  182,  383,  384. 

[254] 


((()  It  was  settled  by  the  case  of  Zouch 
V.  Parsons,  3  Burr.  1794,  that  an  infant 
cannot  avoid  his  conveyances  of  land  until 
he  becomes  of  age.  In  Roof  v.  Stafford, 
7  Cow.  179,  it  was  held  that  the  same  rule 
applied  to  a  sale  of  chattels  ;  but  in  the 
same  case,  on  error,  9  Cow.  626,  the  dis- 
tinction was  maintained,  that  while  he 
could  not  avoid  a  conveyance  of  lands 
until  he  was  of  age,  he  might  a  sale  of 
chattels.  So  also,  in  Bool  v.  Mix,  17 
AYend.  119,  and  in  Shipman  ('.  Horton, 
17  Conn.  481.  See  also,  IMatthewson  v. 
Johnson,  1  Hoffman's  Chancery,  560 ; 
Carr  v.  Clough,  6  Fost.  280.  See  post  ou 
this  subject. 


CH.  XVI.] 


INFANTS. 


*244 


ney  authorizing  a  conveyance  of  his  land,  (v)  a  confession  of  a 
judgment  against  him,  (iv)  and  his  cognovit  for  the  same  pur- 
pose, although  the  action  was  wholly  for  necessaries,  (x)  or  his 
appointment  of  an  agent  of  any  kind,  (//)  his  bond  tvith  a  pen- 
alty^ or  for  the  payment  of  interest,  (s)  a  release  by  a  female 
infant  to  her  guardian,  [a)  an  infant's  contract  of  suretyship,  {b) 
and  his  release  of  his  legacy  or  his  distributive  *share  in  an 
estate  (c)  have  each  been  declared  to  be  absolutely  void,  {d) 

The  better  opinion,  however,  as  may  be  gathered  from  the 
later  cases,  cited  in  our  notes,  seems  to  be  that  an  infant's 
contracts  are  none  of  them  absolutely  void,  that  is,  so  far  void 
that  he  cannot  ratify  them  after  he  arrives  at  the  age  of  legal 
majority.  Such,  at  least,  is  the  strong  tendency  of  modern  de- 
cisions, {e) 

But  the  contract  of  an  infant  for  necessaries  is  neither  void 
nor  voidable.     It  is  permitted  for  his  own  sake  that  he  may 


(»•)  Lawrence  r.  ^IcArter.  10  Ohio,  37  ; 
Pyk",  &c.  r.  Cravens,  4  Littell,  17. 

("■)  Saundcrson  v.  Marr,  1  II.  Bl.  7.5  ; 
Bennett  v.  Uavis,  6  Cow.  m:i ;  Waples 
J-.  lliUitin^rs,  3  Harrinj^.  403  ;  Knox  v. 
Flack,  22  Tenn.  St.  Kep.  337. 

{s)  Oliver  V.  Woodrotle,  4  Mces.  & 
Welsh.  C.50. 

((/)  Doe  </.  Thomas  v.  Roberts,  16  Mces. 
&  ^Velsb.  778. 

(:)  Baylis  v.  Dineley,  3  M.  &  S.  477  ; 
Hunter  v.  Agnew,  1  Fo.x  &  Smith,  (Irish) 
15  ;  Coleoek  v.  Ferguson,  3  Dcs.  482. 

(a)  Fridge  v.  The  State,  3  Gill  & 
Johns.  104. 

(/')  Wliiaton  V.  East,  5  Yerg.  41,  61  ; 
Allen  r.  Minor,  2  Call,  70.  But  sec, 
(oiilni,  Hinely  v.  Margaritz,  3  Barr,  428. 

(c)  Langf'ord  v.  Frey,  8  lluniphrev, 
443. 

(</)  In  Connecticut  some  contracts  of  an 
infant  arc  made  void  l>v  statute.  Rogers 
c.  Hiird,  4  Day,  .57  ;  'Maples  v.  Wight- 
nutn,  4  Conn.  .370. 

(ft)  The  rule  that  an  infant's  contracts 
are  void  or  voidable  according  as  they 
may  be  pronounced  to  be  prejudicial  or 
nsiful,  has  been  laid  down,  and  ix-cog- 
ni/.eil  by  many  resjiectaiile  courts  and 
jmlges.  See  Keane  r.  Boycott,  2  II.  Bl. 
R.  515;  Baylis  r.  Dineley,  3  Maulc  vt 
Selwyn,  477,' 481  ;  Latt  r.  Booth,  3  Carr. 
&  Kir.  292;  Vent  i-.  Osgood,  19  Pick. 
572  ;  Lawson  v.  Lovcjoy,  8  Grccnl.  405  ; 


Rogers  v.  Hurd,  4  Day,  57  ;  McGan  r. 
Marshall,  7  Hum]).  121  ;  Fridge  v.  The 
State,  3  Gill  &  Johns.  104;  Ridgeley  v. 
Crandall,  4  Maryl.  435 ;  Wheatoii  v. 
East,  5  Yerg.  41 ;  McMinn  i\  Richmond?, 
6  id.  9 ;  Kline  v.  Beebe,  6  Conn.  494 ; 
United  States  v.  Bainbridge,  1  Mason,  71, 
82,  and  many  other  cases.  But  it  may 
be  questioned  whether  it  is  a  sufficiently 
clear,  certain,  and  prnrtical  rule.  The 
more  recent  authorities  incline  to  hold  nil 
(or  all  with  a  single  excejition)  an  infant's 
contracts  to  be  voldnhle  merely,  not  void, 
and  that  it  is  the  ])rivilege  and  right  of  the 
infant  only  (not  that  of  a  court)  to  de- 
clare his  contracts  void.  And  the  rule  it- 
self, as  alluded  to  in  the  text,  and  sus- 
tained by  the  older  authorities,  has  been 
declared  unsatisfactory,  liable  to  many 
exceptions,  and  difficult  of  safe  ajiplica- 
tion.  See  Fonda  i-.  Van  Hornc,  15  Wend. 
631,  635  ;  Breckenltridge's  Heirs  r.  Orms- 
by,  1  J.  J.  Marsh.  (Ky.)  236,  241  ;  Scott 
r.  Buchanan,  2  Humph.  4G8 ;  Cole  v. 
Pennoyer,  14  111.  158;  Cummings  i\ 
Powell,  8  Texas,  80.  And  see  a  just 
criticism  by  Mr.  Justice  Bill  upon  the 
vague  and  indefinite  use  of  the  words 
"  void  "  and  "  voidable,"  in  State  v. 
Richmond,  6  Foster,  232.  J'itrkr,  B.,  in 
Williams  v.  Moore,  11  M.  &  W.  256;  1 
Am.  Leading  Cases,  103,  104.  And  see 
note  (/),  p.  275. 

« 

[255] 


245* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


make  a  valid  contract  for  these  things,  as  otherwise,  whatever 
his  need,  he  might  not  be  able  to  obtain  food,  shelter,  or  rai- 
ment. And  the  principles  which  govern  this  rule  show  plainly 
that  it  is  intended  only  for  his  benefit,  and  is  regarded  and 
treated  as  an  exception 'to  a  general  rule. 

The  word  necessaries,  in  relation  to  an  infant,  is  not  used  in 
a  strict  sense ;  but  the  social  position  of  the  infant,  his  means, 
and  those  of  his  parents,  are  taken  into  consideration.  Neces- 
saries for  him  mean  such  things  as  he  ought  properly  to  have, 
and  not  merely  that  which  is  indispensable  to  his  life  or  his 
comfort.  It  is  difficult  to  lay  down  any  positive  rule  which 
shall  determine  what  are  and  what  are  not  necessaries.  Indeed 
there  is  no  such  rule.  It  may  be  said,  however,  that  whether 
articles  of  a  certain  kind.,  or  certain  subjects  of  expenditure,  are 
or  are  not  such  necessaries  as  an  *infant  may  contract  for,  is 
matter  of  law,  and  for  instruction  by  the  court ;  but  the  ques- 
tion whether  any  particular  things  come  under  these  classes, 
and  the  question  also  as  to  quantity,  are  matters  of  fact  for  the 
jury  to  determine.  (/)  The  cases  cited  in  the  notes  will  show 
the  views  taken  of  this  question  by  various  courts  in  England 
and  in  this  country.  It  seems  to  be  certain  that  food,  clothing, 
lodging,  and  needful  medicine,  are  such  necessaries ;  and  the 
infant  may  contract  for  them  on  credit,  though  he  has  ready 
funds  in  his  possession,  {g)     So,  proper  instruction,  {h)     Neces- 


(/)  Bent  V.  Manning,  10  Verm.  225, 
230;  Beeler  v.  Young,  1  Bibb,  519,  521  ; 
Grace  v.  Hale,  2  Humph.  27,  29 ;  Stanton 
V.  Wilson,  3  Day,  37  ;  Phelps  v.  Wor- 
cester, 11  N.  H.  51  ;  Harrison  v.  Fane,  1 
Mann.  &  Grang.  550  ;  Peters  v.  Fleming, 
6  Mees.  &  Welsh.  42  ;  Burgliart  v.  Anger- 
stein,  6  C.  &  P.  690 ;  Tupper  v.  Cadwell, 
12  Met.  559.  This  is  to  be  understood 
with  some  limitation,  however,  for  the 
quarditij  of  goods  supplied  may  be  exces- 
sive, in  which  case,  if  the  jury  give  the 
plaintiff  his  whole  bill,  their  verdict  may 
be  set  aside.  Johnson  v.  Lines,  6  Watts 
&  Serg.  80.  So  if  they  find  a  verdict  for 
the  plaintiff,  contrary  to  the  opinion  of 
the  court,  a  new  trial  will  be  granted. 
Harrison  v.  Fane,  1  Mann.  &  Grang.  550. 

(g)  Burghart  v.  Hall,  4  Mees.  &  Welsh. 
727. 

(k)  iVnd  for  some,  the  term  proper  in- 

[256] 


struction  might  include  a  knowledge  of 
the  learned  languages,  while  for  others  a 
mere  knowledge  of  reading  and  writing 
may  be  sufficient.  Alderson,  B.,  in  Peters 
V.  Fleming,  6  Mees.  &  Welsh.  48.  But  a 
regular  collegiate  education  for  one  in  the 
ordinary  station  and  circumstances  in  life, 
lias  been  held  in  this  country  not  within 
the  term  "necessaries."  Middlebury 
College  V.  Chandler,  16  Verm.  683.  But 
a  good  "  common  school "  education 
would  be  for  every  one ;  such  an  educa- 
tion is  essential  to  the  intelligent  discharge 
of  civil,  political,  and  religious  duties. 
lioyce,  J.,  in  Middlebury  College  v. 
Chandler,  16  Verm.  686.  "instruction  in 
reading  and  writing  was  held  necessary,  in 
Manby  v.  Scott,  1  Siderfin,  112;  and  the 
reason  given  was,  for  that  it  was  for  the 
benefit  of  the  realm  that  learning  should 
be  advanced.    In  Raymond  v.  Loyl,  10 


CII.  XVI.] 


INFANTS. 


*246 


saries  for  an  infant's  wife  may  be  validly  contracted  for  by  him; 
but  not  if  they  be  necessaries  provided  in  view  of  marriage, 
though  his  wife  afterwards  use  them,  (i)  And  it  seems  that, 
as  an  incident  to  a  marriage,  which  an  infant  may  contract,  he 
is  liable  during  coverture  for  the  antenuptial  debts  of  his 
wife,  (j)  He  is  also  liable  to  the  same  extent  as  an  *adult 
would  be  for  necessaries  supplied  to  his  lawful  children,  (k)  In 
some  cases,  such  things  as  horses,  or  regimentals,  or  watches,  or 
even  jewelry,  are  regarded  as  necessaries.  (/)  An  infant  can- 
not borrow   money,  so  as  to  render  himself  liable  to  an  action 


Barb.  Sup.  Ct.  4S9,  Tlaml,  J.,  stxys:  "It 
was  said  on  tlic  argument  that  '  sclioolinj^ ' 
is  not  a  necessary.  And  Mr.  Cliitty  says, 
it  seems  a  paroiu  is  not  legally  l)Ound  to 
educate  his  child.  Chit,  on  Cont.  140. 
A  parent  is  almost  the  solo  judge  of  what 
is  necessary.  15nt  if  a  ])arent  is  liable  to 
a  tiiird  person,  I  hope  it  will  never  be  de- 
cided that  sending  to  a  common  school, 
at  a  suitable  season,  and  to  a  reasonable 
extent,  is  not  necessary,  in  this  country." 

((')  Turner  v.  Trisby,  1  Strange,  168. 
Sec  Ilainsford  v.  Fenwick,  1  Carter,  215; 
Abell  V.  Warren,  4  Verm.  149,  152; 
heeler  r.  Young,  1  Biltb,  519,  520.  And 
see  Sams  r.  Stockton,  14  B.  Monroe,  232. 
And  an  infant  widow  is  [jcrsonally  iiound 
by  her  contract  for  the  funeral  expenses 
of  her  deceased  husband,  who  <lied  leaving 
no  assets.  Chapi)le  v.  Cooper,  13  M.  & 
W.  252. 

{j)  Paris  V.  Stroud,  Barnes's  Notes,  95  ; 
Hoach  V.  Quick,  9  Wend.  23S  ;  Butler  r. 
Breck,  7  Met.  164.  But  this  is  to  be 
understood  only  of  such  debts  as  the  wife 
was  legally  liable  to  ])ay  at  iier  marriage. 

{k)  Dirta  in  Abell  r." Warren,  4  Verm. 
152;   Beoler  r.  Young,  1  Bil)I),  520. 

(/)  To  be  necessaries  the  articles  must 
be  bond^ftdc  purchased  for  use,  and  not  for 
mere  ornament ;  they  need  not  be  such  as 
a  person  could  not  do  without,  iiut  should 
be  in  (juality  and  (juantity  suitable  for  his 
real  wants,  ami  his  c(jnditiou  and  circum- 
stances in  life.  The  term  includes  his 
food,  but  not  dinners,  confectionary,  fruit, 
&c.,  sujiplied  to  his  friend.  Brooker  r. 
Scott,  1 1  M.  &  W.  67  ;  Wharton  r.  Mc- 
Kenzic,  5  Q.  B.  606.  Also  lodging  and 
house  rent,  Kirton  v.  Elliott,  2  Bulst.  09  ; 
Crisp  r.  Churchill,  cited  in  Lloyd  r.  John- 
son, 1  B.  &  P.  340;  l)ut  not  rc|>airs  u])on 
his   house,    although  bcneticial  in  thcm- 


selves,  and  necessary  to  save  the  building 
from  decay.  Tupper  v.  Cadwell,  12  Met. 
559  ;  nor  food  for  his  horses.  Mason  c. 
AV right,  13  Met.  306  ;  nor  the  rent  of  a 
building  for  carrying  on  a  trade  or  manual 
occupation.  Lowe  c.  lirilfitlis,  1  Scott,  458, 
Suital)le  clothing  also,  comes  within  tiic 
class  of  necessaries,  l)ut  not  suits  of  satin 
and  velvet  with  gold  lace.  Makarell  i-. 
Bachelor,  Cro,  Eliz.  583 ;  nor  racing 
jackets.  Burghart  v.  Angerstein,  6  C.  & 
P.  690 ;  nor  cockades  for  an  infant  cap- 
tain's soldiers.  Hands  v.  Slaney,  8  T.  K. 
578  ;  although  regimentals  for  a  volunteer, 
an<l  livery  for  sucli  cai)taiTi's  servant,  have 
been  held  otherwise.  Id. ;  Coates  r.  Wil- 
son, 5  Esp.  152.  The  following  are  ex- 
amples of  articles  not  generally  "  neces- 
saries :  "  Ilonses,  saddles,  bridles,  licinors, 
pistols,  powder,  whips,  and  fiddles.  Beeler 
V.  Young,  1  Bil)b,  519;  (ilover  v.  Ott,  1 
McCord,  572  ;  Rainwater  r.  Durham,  2 
Nott  &  McC.  524;  Grace  v.  Hale,  2  Humph. 
27;  Clowes  r.  Brooke,  2  Strange,  1101  ; 
Harrison  v.  Fane,  1  Mann.  &  Grang.  550. 
A  stanhope.  Charters  v.  Bavntun,  7  C. 
&  P.  52.  Coach  hire.  Hedgley  v.  Holt, 
4  C.  &  P.  104.  A  chronometer  for  a 
lieutenant  in  the  navy,  not  then  in  com- 
mission. BeroUes  v.  Kamsay,  Holt,  77. 
Balls  atid  serenades.  Carter,  216.  Coun- 
sel fees  and  expenses  of  a  lawsuit.  Phel])fi 
r.  Worcester,  11  New  Hamp.  51.  But  as 
each  c.a.se  is  governed  by  its  own  peculiar 
circumstances,  the  examples  here  given 
can  serve  only  as  illustrations,  and  under 
different  circumstances  would  not  neces- 
sarily be  binding  precedents.  Thus,  as 
we  have  just  seen,  horses  are  not  generally 
necessary,  iuit  when  an  infant  had  heen 
advised  to  ride  on  horseback  for  his  healtli, 
a  dirterent  rule  was  applied.  Uart  v. 
Prater,  1  Jurist,  623. 

r  2o7  1 


247*-248* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


for  money  lent,  although  borrowed  for  and  expended  for  neces- 
saries ;  because  the  law  does  not,  for  his  own  sake,  trust  him 
with  the  expenditure,  (m) 


♦SECTION     II. 

OF  THE  OBLIGATIONS  OF  PARENTS  IN  RESPECT  TO  INFANT 
CHILDREN. 

The  obligation  of  the  father  to  maintain  the  child  is  and 
always  has  been  recognized  in  some  way  and  in  some  degree, 
in  all  civilized  countries.  The  infant  cannot  support  himself. 
Others  must  therefore  supply  him  with  the  means  of  subsistence; 
and  the  only  question  is,  whether  the  public  (that  is,  the  State,) 
shall  do  this,  or  his  parent.  And  justice,  equally  with  the 
best  affections  of  our  nature,  answer  that  it  is  the  duty  of  the 
parent.  But  it  is  a  very  dilficult  question  how  far  this  duty  is 
made  a  legal  obligation,  by  the  common  law. 

In  England,  after  much  questioning,  and  perhaps  a  tendency 
to  hold  the  father  liable  for  necessaries  supplied  to  the  child,  on 
the  ground  of  moral  obligation  and  duty,(/^)  it  *seems  to  be,  on 


{ni)  ^mith  v.  Gibson,  Peake's  Add. 
Cas.  52  ;  Darby  v.  Boucher,  1  Salk.  279  ; 
Probart  V.  Knouth,  2  Esp.  472,  note  ; 
Beeler  v.  Young,  1  Bibb,  519,  521  ;  Earlc 
V.  Peak,  1  Salk.  387, 10  Mod.  67  ;  Walker 
V.  Simi)son,  7  Watts  &  Serg.  83,  88  ;  Bent 
V.  Manning-,  10  Verm.  225,  230.  It  is 
otherwise  in  equity.  Marlow  v.  Pitfield, 
1  P.  Wins.  558.  But  money  advanced  to 
an  oiBcer,  to  procure  the  liberation  of  an 
infant  from  an  arrest  on  a  debt  for  neces- 
saries, may  be  recovered,  it  not  being 
strictly  speaking  money  lent.  Clarke  v. 
Leslie,  5  Esp.  28.  So  an  infant  is  liable 
for  money  paid  at  his  request  to  satisfy  a 
debt  which  he  had  contracted  for  necessa- 
ries. Randall  v.  Sweet,  I  Denio,  460. 
So  if  the  infant  give  his  note  for  the  neces- 
saries, and  anotiier  sign  as  surety,  and 
subsequently  pay  the  note,  he  may  recover 
the  amount  of  the  infant.  Conn  v.  Co- 
burn,  7  New  Hamp.  368  ;  Haine  v.  Tar- 
rant, 2  Hill,  (S.  C.)  400. 

[n)  In  Simpson  v.  llobertson,  1  Esp. 

[258] 


17,  (1793,)  ^yhich  is  the  earliest  case  on 
this  point.  Lord  Kenyan  said  he  had  ruled 
before,  that  if  a  tradesman  colludes  with  a 
young  man,  and  furnishes  him  with  clothes 
to  an  extravagant  degree,  though  the  father 
might  have  been  liable  had  they  been,  to  a  rea- 
sonable extent,  the  tradesman  wlio  gives 
credit  to  such  an  extravagant  degree  shall 
not  at  law  be  allowed  £0  recover.  Crantz 
r.  Gill,  2  Esp.  471,  (1796,)  decided  that 
if  the  father  gives  the  son  a  reasonable 
allowance  for  his  expenses,  he  is  not  liable 
even  for  necessaries  furnished  to  the  son. 
The  presumption  of  liability  was  rebutted 
by  the  allowance.  But  this  case  seems  to 
imply  that  such  liability  exists  in  the  ab- 
sence of  rebutting  circumstances.  —  In 
Urmston  v.  Ncwcomcn,  4  Ad.  &  El.  899, 
6  Nev.  &  Man.  454,  (1836,)  it  was  consid- 
ered as  a  doubtful  question  whether  a 
parent  was,  at  common  law,  liable  to  pay  a 
third  person,  who  furnishes  necessaries  to 
his  deserted  child.  Sir  John  Campbell, 
Attorney-General,  arguendo,  says,  p.  903  : 


CH.  XVI.] 


INFANTS. 


*249 


the  whole,  settled,  that  this  moral  obligation  is  not  a  legal  one ; 
and  indeed  it  has  been  recently  peremptorily  decided  that  no 
such  legal  obligation  exists  in  the  case  of  contracts  made  by  the 
child   for  necessaries,  (o)      The  *father's  liability  is  nevertheless 


"  Then  the  question  is  whether  a  father, 
if  he  desert  liis  Icj^itimate  child,  he  not 
liahle  in   assum])sit   to  any  one  who  pro- 
vides food  and  ehjthing  for  it.     Tliere  is 
no  exjjress  decision  on  the  jioint."    Alex- 
ander, contra:  "  The  supposed  foundation 
of  the  defendant's  liability  does  not  exist. 
It  is  not  true  that  by  the  common  law  a 
fjxther  is  bound  to  maintain   his   child." 
Lord  Denmaii,  C.  J.,  says  :  "  The  <reneral 
question  is  important;  but  the  facts  do  not 
raise  it."    And aftenvards  :  "The general 
question,  therefore,  which  we  shonld  ap- 
proach with  much  anxiety,  does  not  arise." 
LiUleddle,  J. :  "  The  general  question  does 
not  arise."     Patteson,  J. :  "1   agree  that 
the    general    question    docs    not   arise." 
Colmdf/c,  J.:  "  It  is  best  to  say  nothing  on 
the  general  question.     For  the  purpose  of 
this  case,  I  will  assume,  (what  is  not  to  be 
understood  as  my  opinion  at  present,)  that 
the  general  liability  is  as  contended  by  the 
Attorncv-(iencral."  —  In  Law  c.  Wilkin, 
6  Ad.  &K1.  718,  (1837,)  the  defendant's 
son   was  from  home  at   school,   and   ap- 
peared to  be  in  want  of  clothes,  when  the 
l)lainlift"  supplied    him.     When    the    boy 
went  home,  he  took  the  clothes  with  him, 
but  did  not  wear  them.     There  was  no 
evidence   that    the   father  ever    saw    tiie 
clothes,  or  that  lie  had  any  communication 
with  the  |)hiintitf  before  or  after  they  were 
fm-nishcd.     Tlic  judge  at  nisi  jiriiis  non- 
suited the  plaintiti',  thinking  there  was  not 
snrticient  evidence  to;/o  to  t/ic  Jiiri/  to  charge 
the    ilcfendant.     The    Court    of    King's 
IJi'Mcli  set  aside  the  nonsuit,  on  the  ground 
that  there  was  some  evidence  to  tiiat  ett'ect ; 
ami    Lord   Denmun,  C.   J.,  who   with  his 
brethren  the  year  before  had  carefully  and 
almost  anxiously  avoided  the  question,  in 
I'rmston  v.  Newcomcn,    now  said  :  "  A 
.    father  is  properly  liable  for  any  necessary 
provision  made  for  his  infant  son."     Lit- 
thdttli',  J'ottiso?),  and  Co/iridt/r,  ,],].,  made 
no  objection   to  this  dirtuiu,  although  the 
decision  of  the  case  did  not  re(|uire  it.  — 
In    Cooper    V.    riiillips,   4  C.  &  P.   .'J81, 
(1831,)  Tannton,  J.,  says  :  "  If  the  father 
of  a   family  lives   at   a  distance  from  the 
place  at  which  his  children  are,  and  puts 
them  under  the  protection  of  servants,  1 
am  of  opinion  that  if  any  accident  occurs 
to  one  of  the  children,  even  from  the  care- 


lessness of  the  sei-vant,  tlie  father  of  the 
family  is  bound  to  pay  for  the  medical 
attendance  on  such  cliild." 

(o)  In  Baker  v.  Keen,  2  Starkie,  501, 
(1819,)  AbboU,  C.  J.,  said:  "A  father 
would  not  be  bound  by  the  contract  of  his 
son,  unless  either  an  actual  authority  were 
proved,  or  circumstances  a])peared  from 
which  such  an  authority  migiit  be  implied. 
Were  it  otherwise,  a  father,  who  had  an 
imjirudent  son,  might  be  prejudiced  to  an 
indefinite  extent ;  it  was  therefore  neces- 
sary that  some  proof  should- be  given  that 
the  order  of  a  son  was  made  by  the  au- 
thority of  his  father.  The  question,  there- 
fore, for  the  consideration  of  the  jury,  was, 
whether,  under  the  circumstances  of  the 
particular  case,  there  was  sutheient  to  con- 
vince them  tliat  the  defendant  had  invested 
his  son  with  such  authority.  He  had 
placed  his  son  at  the  military  college  at 
Harlow,  and  had  paid  his  expenses  whilst 
he  remained  there.  The  son,  it  appeared, 
then  obtained  a  commission  in  the  army, 
and,  having  found  his  way  to  London,  at 
a  considerable  distance  from  his  father's 
residence,  had  ordered  regimentals  and 
other  articles  suitable  to  his  equipment  for 
the  East  Indies.  If  it  had  appeared  in 
evidence  that  the  defendant  had  su])plied 
his  son  with  money  for  this  purpose,  or 
that  he  had  ordered  these  articles  to  be 
furnished  elsewhere,  the  circumstance 
might  have  rebutted  the  presumption  of 
any  authority  from  the  defendant  to  order 
them  from  the  plaintiff".  Nothing  however 
of  tiiis  nature  had  been  proved  ;  and  since 
the  articles  themselves  were  necessar}'  for 
tlie  son,  and  suitable  to  that  situation  in 
which  the  defendant  had  placed  him,  it 
was  for  the  jury  to  say,  whether  they  were 
not  satisfied  tliat  an  authority  had  been 
given  by  the  defendant."  —  This  was  soon 
followed  by  Fluck  r.  Tollemache,  1  C.  & 
r.  5,  (1823,)  before  Jiunoiiijli,  ,his.t\cc  of 
the  King's  Hench.  The  defendant's  son 
was  a  cadet  at  Woolwich,  the  fatherliving 
at  Uxbridge.  Upon  being  written  to  to 
pay  the  plaintiff's  bill,  which  was  the  fii-st 
knowledge  the  defendant  had  of  the  trans- 
action, he  said  he  had  ordered  no  goods 
of  the  jilaintitf,  and  would  not  pay  for  any 
supplied  to  his  son.  The  latter  was  fifteen 
years  old.    Burrough,  J.,  told   the  jury, 

[  259  1 


250* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


admitted  in  many  English  cases,  bat  is  now  put  on  the  ground 
of  agency  ;  and  the  *authority  of  the  infant  to  bind  the  father  by 


that  "an  action  can  only  be  maintained 
against  a  person  for  clothes  supplied  to 
his  son,  either  when  he  has  ordered  such 
clothes,  and  contracted  to  pay  for  them,  or 
when  they  have  been  at  first  furnished 
without  his  knowledge,  and  he  has  adopted 
the  contract  afterwards ;  such  adoption 
may  be  inferred  from  his  seeing  his  son 
wear  the  clothes,  and  not  returning  them, 
or  making,  at  or  soon  after  the  time  when 
he  knows  of  tlieir  being  supplied,  some 
objection.  Here  the  only  knowledge  that 
it  appeared  the  defendant  had  of  the  trans- 
action was  being  asked  for  the  money; 
he  then  repudiated  the  contract  altogether. 
It  would  be  rather  too  much  that  parents 
gliould  be  compellable  to  pay  for  goods 
that  any  tradesman  may,  withont  their 
knowledge,  improvidently  trust  their  sons 
with."  —  In  Blackburn  v.  Mackev,  1  C.  & 
F.  I,  (1823,)  before  ylW»«,  Ciiief  Justice 
of  tlic  King's  Benth,  the  defendant's  son 
was  a  minor  living  away  from  his  father, 
as  a  clerk  in  London,  receiving  a  guinea 
a  week  as  wages.  Tlie  father  did  not 
supply  the  son  with  any  clothes,  and  it 
was  proved  that  he  was,  at  the  time  of  the 
supply  l»y  the  plaintiff",  in  great  want  of 
them.  The  defendant  did  not  know  the 
plaintiff, und  when  informed  of  the  sup])ly 
of  clothes  to  his  son,  he  repudiated  the 
contract  altogether.  Abbott,  C.  J.,  told 
the  jury,  that  a  father  was  not  bound  to 
pay  for  articles  ordered  bi/  his  son,  unless 
lie  had  given  some  authority,  express  or 
implied.  —  In  Eolfe  v.  Abbott,  6  C.  &  P. 
286,  (1833,)  the  defendant's  son,  a  young 
man  of  nineteen  years  of  age,  and  having 
a  situation  worth  ^£90  a  year,  went  with  a 
friend  who  introduced  him  to  the  plaintiff, 
a  tailor,  and  the  latter  supplied  him  with 
clothes,  and  soon  after  sent  iiis  bill,  debit- 
ing them  to  the  son  and  not  to  the  father. 
The  friend  of  the  minoi-  had  no  authority 
from  the  father  to  introduce  his  son  to  the 
plaintiff,  and  tlicre  was  no  evidence  that 
the  father  knew  of  the  transaction.  In 
summing  up  to  the  jury,  Gurney,  B.,  said  : 
"  The  cjuestion  in  this  case  is,  whether 
these  clothes  were  supplied  to  the  son  of 
the  defendant  by  the  assent  of  the  defend- 
ant. For,  to  charge  him,  it  is  essential 
that  the  goods  should  have  been  supplied 
with  his  assent  or  by  his  authority.  In- 
deed, if  the  law  were  not  so,  any  one  of 
you  who  had  an  imprudent  son  might 
have  bills  to  a  large  amount  at  the  tailor's, 

[260] 


the  hatter's,  the  shoemaker's,  and  the 
hosier's,  and  you  know  nothing  at  all 
about  it."  —  Clements  v.  Williams,  8  C. 
&  P.  58,  (1837,)  was  an  action  by  a  school- 
master against  a  guardian  for  clothes  sup- 
plied his  ward,  who  had  been  j)laced  in 
the  plaintiff's  school,  but  who  had  not 
been  provided  by  his  guardian  with 
clothes  for  upwards  of  a  year.  The 
schoolmaster  supplied  his  wants,  and 
charged  them  to  the  guardian,  with  his 
bill  for  tuition.  Williams,  J.,  told  the 
jury,  that  he  was  not  aware  of  any  au- 
thority which  a  schoolmaster  had  to  cause 
his  pupil  to  be  supplied  with  articles  of 
wearing  apparel  without  the  sanction,  ex- 
press or  implied,  of  the  parent  or  guardian  ; 
and  that  it  was  the  duty  of  tlie  school- 
master, if  he  observed  his  pupil  to  be  in 
want  of  such  articles,  to  communicate  that 
fact  to  the  boy's  friends,  and  not  to  furnish 
him  with  snch  things  without  their  au- 
thority. —  Seaborne  v.  Maddy,  9  C.  &  P. 
497,  (1840,)  is  also  a  very  strong  case 
against  the  parent's  liability.  This  was  an 
action  of  assumpsit  for  the  board  and 
lodging  of  tiie  defendant's  illegitimate 
child.  The  child  had  been  placed  with 
the  plaintiff  by  the  defendant  in  the  year 
1831,  at  2s.  a  week,  and  the  amount  had 
been  paid  down  to  the  month  of  April, 
1838.  The  child  remained  with  the  plain- 
tiff down  to  April,  1839,  and  evidence  was 
given  of  a  conversation  in  the  month  of 
May  following,  in  whicli  it  was  alleged 
that  the  defendant  had  promised  payment 
of  the  amount  claimed.  The  defendant 
gave  evidence  that  at  the  time  of  settle- 
ment in  1838,  he  said  the  plaintiff  was  to 
give  up  the  cliild  either  to  Mr.  Parkes  or 
the  Union,  for  he  would  pay  no  longer. 
Evidence  was  also  given,  that  on  several 
occasions  when  asked  for  payment  the  de- 
fendant refused  to  pay  any  thing,  and 
there  was  also  contradictory  evidence  as 
to  the  conversation  in  May,  1839.  Parke, 
Baron,  said  :  "  No  one  is  bound  to  pay 
another  for  maintaining  his  children, 
cither  legitimate  or  illegitimate,  except  he 
has  entered  into  some  contract  to  do  so. 
Every  man  is  to  maintain  his  own  children 
as  he  himself  shall  think,  proper,  and  it 
requires  a  contract  to  enable  another  per- 
son to  do  so,  and  charge  him  for  it  in  an 
action.  In  the  present  case  there  had  been 
a  contract  in  1831,  which  was  put  an  end 
to  in  1838.     However,  on  the  part  of  the 


CH.  XVI.] 


INFANTS. 


-250 


contracts  for  necessaries  is  inferred,  both  in  England  and  in  this 
country,  from  very  slight  evidence,  (p)     If  we  take  the  case  of 


plaintiff,  it  is  contended  that  a' new  con- 
tract is  to  be  inferred  from  the  conversa- 
tion with  tlie  defendant  in  the  year  1839. 
This  is  for  you  to  consider.  But  you 
must  also  hear  in  mind  that  the  defendant 
has  on  several  occasions  distinctly  refused 
to  pay  any  thinrj,  and  that  as  to  one  of  the 
conversations,  the  evidence  is  contradic- 
toiy." —  Tiie  case  of  Mortimore  v.  Wright, 
6  M.  &  W.  482,  (1840,)  seems  to  be  deci- 
sive on  this  point.  Lord  Abinf/er,  C.  B., 
said  :  "  I  am  clearly  of  opinion  that  there 
was  no  evidence  for  the  jury  in  this  case, 
and  that  tlie  phiintift'  ought  to  have  been 
nonsuited.  Tlie  learned  judge  was  anx- 
ious, as  judges  have  always  been  in  modern 
times,  not  to  withdraw  any  scintilla  of  evi- 
dence from  the  jury ;  but  he  now  agrees 
with  the  rest  of  tlie  court  that  there  ought 
to  have  been  a  nonsuit.  In  the  present 
instance  I  am  the  more  desirous  to  make 
the  rule  absolute  to  that  extent,  in  order 
that  there  may  be  no  uncertainty  as  to  the 
law  upon  this  subject.  In  point  of  law,  a 
father  who  gives  no  authority,  and  enters 
into  no  contract,  is  no  more  liable  for 
goods  supplied  toliis  son  than  a  brother, 
or  an  uncle,  or  a  mere  stranger  would  he. 
From  the  moral  obligation  a  parent  is 
under  to  jirovide  for  his  children,  a  jury 
arc,  not  unnaturally,  disposed  to  infer 
against  him  an  admission  of  a  liaiiility  in 
respect  of  claims  upon  his  son,  on  grounds 
which  warrant  no  such  inference  in  point 

of  law Witli  regard  to  the  case  in 

the  Court  of  King's  Bench,  of  Law  v. 
Wilkin,  if  the  decision  is  to  be  taken  as 
it  is  reported,  I  can  only  say  that  I  am 
Sony  for  it,  and  cannot  assent  to  it.  It 
may  liavc  been  influenced  by  facts  which 
do  not  a|)])car  in  t!ie  rejiort ;  but,  as  the 
case  stands,  it  appears  to  sajiction  the  idea 
that  a  father,  as  regards  his  liability  for 
debts  incurred  by  his  son,  is  in  a  ditterent 
situation  from  any  other  relativo  ;  which 
is  a  doctrine  I  must  altogether  dissent 
from.  If  a  father  does  any  S])e<ific  act, 
from  which  it  may  reasonably  be  inferred 
that  he  lias  authorized  liis  son  to  contract 
a  debt,  he  may  be  liable  in  rcs])cct  of  the 
debt  so  contracted  ;  but  the  mere  moral 
obligation  on  the  father  to  maintain  his 
child  aftbrds  no  inference  of  a  legal  prom- 
ise to  pay  his  debts  ;  and  we  ought  not  to 
put  upon  his  acts  an  intcrinctation  which 
abstractedly,  and  without  reference  to  that 
moral  obligation,  they  will  not  reasonably 


warrant.  In  order  to  bind  a  father,  in 
point  of  law,  for  a  debt  incuiTcd  by  his 
son,  you  must  prove  that  he  has  contracted 
to  be  bound,  just  in  the  same  manner  aa 
you  would  prove  such  a  contract  against 
any  other  person  ;  and  it  would  bring  the 
law  into  great  uncertainty  if  it  were  per- 
mitted to  juries  to  impose  a  liability  in 
each  particular  case,  according  to  their 
own  feelings  or  prejudices."  Parte,  B., 
added  :  "  It  is  a  clear  principle  of  law  that 
a  fothcr  is  not  under  any  legal  obligation 
to  pay  his  son's  debts." — And  in  Shelton 
V.  SjiVingett,  20  E.  L.  &  E.  281,  the  same 
princii)les  are  reiterated  ;  and  the  law  de- 
clared to  be  well  settled  that  without  some 
contract,  express  or  implied,  the  father  is 
not  liable  for  necessaries  supplied  to  the 
son.  Jervis,  C.  J.,  says :  "If  a  father 
turns  his  son  upon  the  world,  the  son's 
only  resource,  in  the  absence  of  any  thing 
to  show  a  contract  on  the  father's  part,  is 
to  apply  to  the  parisii,  and  then  the  proper 
steps  will  be  taken  to  enforce  the  perform- 
ance of  the  parent's  legal  duty." 

(l>)  This  may  be  inferred  from  some  of 
the  cases  we  have  already  cited ;  but  it 
was  doubted  in  Mortimore  r.  Wright, 
whether  Law  v.  Wilkin,  aiul  Blackburn  y. 
JIackcy,  were  livw.  And  in  Shelton  v. 
Springett,  where  the  father  had  given  his 
son  5/.  and  sent  him  to  London  to  look 
out  for  a  ship,  telling  him  to  put  up  at  a 
particular  hotel,  but  the  son  put  up  at  an- 
other, u|)on  which  evidence  the  jury  had 
found  a  verdict  against  the  father  for  the 
son's  board,  the  verdict  was  set  aside  and 
a  nonsuit  ordered  on  the  ground  that  there 
was  no  evidence  to  warrant  a  jury  in  hold- 
ing the  father  liable.  In  Forsyth V.  Milne, 
(1808,)  cited  in  Macpherson  on  Infants,  p. 
511,  the  defendant's  wife,  in  his  absence 
and  without  his  knowledge,  contracted 
with  a  third  person  for  the  board  of  their 
minor  daughter.  The  defendant  paid  the 
bill,  but  expressed  some  disap]irobation  of 
it.  The  mother  removed  the  daughter  to 
another  situation  ;  it  was  held  that  the  first 
payment  so  far  acknowledged  the  discre- 
tionary power  of  the  wife  to  contract,  aa 
to  make  the  father  liable  to  the  plaintiti' 
upon  the  second  contract.  —  In  Bryan  v. 
Jackson,  4  Conn.  288,  (1822,)  where  the 
defendant's  minor  son  had  taken  uj)  goods 
of  the  plaintiff,  which  the  defendant  paid 
for,  without  objection,  or  giving  notice  not 
to  trust  his  son  any  further,  and  the  son 

[261  j 


251 


THE   LAW   OF   CONTRACTS. 


[book  I. 


necessaries  supplied  to  an  infant  actually  incapacitated  by  want 
of  age,  or  by  disease  of  mind  or  body,  from  making  any  con- 
tract, or  acting  in  any  way  as  the  agent  of  any  person,  the 
father  cannot  be  made  liable  excepting  on  the  ground  of  his 
parental  obligation  ;  and  there  are  cases,  or  rather  dicta  in  some 
cases  which  might  indicate,  perhaps,  that  the  question  would  be 
decided  in  England  in  favor  of  this  liability  on  his  part,  if  it 
were  necessary.  It  will  be  noticed,  that  where  it  is  most  dis- 
tinctly denied  that  this  moral  obligation  of  the  parent  consti- 
tutes a  legal  obligation,  the  denial  is  confined  to  a  liability  for 
the  contracts  of  the  child.     The  reason  is  said  to  be,  the  danger 


afterwards  took  up  other  goods  of  a  similar 
nature  ;  it  was  iicld  that  the  payment  so 
made  by  the  defendant  was  equivalent  to 
a  recognition  of  his  sons's  authority,  and 
rendered  the  defendant  liable  for  the  goods 
subsequently  taken  up,  aUhough  he  had, 
(but  without  the  plaintiff's  knowledge,) 
given  positive  orders  to  his  son  to  contract 
no  more  debts,  and  had  placed  him  under 
the  care  of  a  friend,  with  instructions  to 
furnish  him  with  every  thing  necessary 
and  suital)le  for  him.  See  also,  McKenzie 
V.  Stevens,  19  Ala.  691.  —  It  was  held  in 
Nichole  r.  Allen,  3  C.  &  P.  36,  (1827,) 
that  if  a  parent  knew  that  a  third  person 
was  maintaining  his  minor  child,  although 
illegitimate,  and  expressed  no  dissent,  he 
is  liable,  unless  he  show  that  the  child  is 
there  against  his  consent;  but  this  case 
was  afterwards  denied  in  Mortimore  v. 
Wright.  —  In  Rumney  y.  Keyes,  7  New 
Hamp.  .571,  (1835,)  it  was  held,  that  if  a 
husband,  living  in  a  state  of  separation 
from  his  wife,  suffers  his  children  to  reside 
with  the  mother,  he  is  liable  for  necessa- 
ries furnished  them,  and  she  is  considered 
as  his  agent  to  contract  for  this  purpose. 
And  see  Rawlynsw.  Vandyke,  3  Esp.  250, 
(1800).  In  Deane  v.  Aiinis,  14  Maine, 
26,  (1836,)  the  defendant's  minor  son  left 
his  father's  home  against  his  will,  and  re- 
fused to  return  to  it  upon  his  father's  com- 
mands. Being  afterwards  taken  sick, 
however,  he  did  return,  and  remained  until 
his  death.  During  his  sickness  his  father 
went  with  him  to  the  plaintitt''s  house  to 
obtain  medical  advice,  and  the  plaintiff 
afterwards  visited  the  boy  professionally 
at  his  father's  house.  No  exjn-ess  promise 
was  proved  to  pay  the  plaintiff,  nor  did 
the  father  notify  him  that  he  did  not  ex- 
pect to  pay  him.     The   father   was  held 

{262] 


liable  for  the  plaintiff's  services.  —  And  in 
Swain  v.  Tyler,  26  Vt.  1 ,  where  the  father 
had  given  his  minor  son  leave  to  act  for 
himself,  and  had  made  publication  of  the 
fact,  and  that  he  would  not  thereafter  pay 
any  debts  of  his  son.  The  son  returned  to 
his  father's  house  sick,  and  the  plaintiff's 
charges  were  for  necessarj^  medical  ser- 
vices rendered  the  son,  upon  the  credit  of 
the  father,  and  in  good  faith  charged  to 
him  at  the  time,  and  the  father  knew  of 
the  seiwices  being  rendered  and  did  not 
object,  it  was  held  that  the  law  implies  a 
promise  to  pay,  though,  the  father  did  not 
assent  to  the  services  being  done  on  his 
credit,  either  expressly  or  impliedly,  in  fact. 
—  The  case  of  Thayer  v.  White,  12  Met. 
343,  (1847,)  has  an  importanX  bearing 
upon  the  point  of  implied  liability.  It 
does  not  appear  in  that  case  that  the  de- 
fendant's sou  was  a  minor,  nor  were  the 
goods  bought  by  the  son  necessaries,  but 
the  facts  were  that  a  son,  who  had  several 
times,  with  his  father's  express  consent, 
bought  goods  of  T.  in  the  name  and  on  the 
credit  of  his  fother,  again  bought  goods  of 
T.  in  the  name  of  his  father,  on  six  months' 
credit ;  T.  charged  the  goods  to  the  father, 
and  immediately  wrote  a  letter  to  him,  in- 
forming him  thereof,  and  stating  that  he 
supposed  it  was  correct,  but  thought 
proper  to  give  him  notice.  The  father 
made  no  reply  to  this  letter.  Held,  in  a 
suit  by  T.  against  the  father,  fo'r  the  price 
of  the  goods,  that  the  jury  were  warranted 
in  inferring,  from  the  father's  silence,  his 
consent  to  the  transaction  thus  notified  to 
him.  Held,  also,  that  such  consent  was 
proof  either  of  an  original  authority  to  the 
son,  or  of  a  subsequent  affirmance  by  the 
father,  which  bound  him  to  pay  for  the 
goods. 


CH.   XVI.] 


INFANTS. 


*252 


of  pennitting  a  father  to  be  bound  in  this  way,  and  it  is  vari- 
ously illustrated  in  the  cases;  but  this  reason  fails  where  the 
infant  can  make  no  contracts,  and  must  be  supplied  or  suffer. 

In  this  country,  the  rule  of  law  varies  in  the  different  States. 
In  most  of  them  in  which  the  question  has  come  before  the 
courts,  the  legal  liability  of  the  parent  for  necc^ssaries  furnished 
to  the  infant,  is  asserted,  unless  they  are  supplied  by  the  father; 
and  it  is  put  on  the  ground  that  the  moral  obligation  is  also  a 
legal  one,  and  some  of  our  courts  have  declared  this  quite 
strongly,  (q).  In  other  States  the  present  *Englishrule  has  been 
declared  to  be  law,  and  agency  and  authority  are  held  to  be  the 
only  ground  of  such  liability.  (/•). 


(7)  Sec  Stanton  v.  Wilson,  3  Day,  37, 
(1808).  In  this  case  the  father  had  been 
divorced  from  tlie  phiiiititf,  his  fonner 
wife,  and  two  of  their  children  were  or- 
dered into  her  custody  as  ;;;uardian.  A 
third  remained  with  his  fatlier,  (the  de- 
fendant,) for  a  few  years,  when  tln-oup;h 
fear  of  personal  violence  and  abuse  from 
his  father  he  fled,  and  went  to  live  witli 
his  mother  and  her  second  husband,  who 
furnished  him  with  snpport  and  education. 
The  action  was  brought  to  recover  for 
tiie  support  of  the  three  children.  "  It 
was  agreed  that  the  whole  of  tlie  charges 
accrued  without  any  request  from  the 
father,  and  that  he  never  made  any  ex- 
I)res8  promise  to  jjaythem."  The  court, 
(two  judges  dissenting,)  held  the  father 
liable  for  the  whole  bill,  saying  :  "  Parents 
are  bound  by  law  to  maintain,  protect,  and 
educate  their  legitimate  children  during 
tiieir  infancy.  This  duty  rests  on  the 
father.  But  because  the  father  has  aban- 
doned his  duty  and  trust,  by  jjutting  the 
child  out  of  his  protection,  he  cannot 
thereby  exonerate  himself  from  its  main- 
tenance, educatinii,  and  support.  The 
duty  remains,  and  the  law  will  enforce  its 
peifonnance,  or  there  must  be  a  failure  of 
justice.  The  infant  cast  on  the  world 
must  seek  pnjtcction  and  safety  where  it 
can  be  found  ;  ami  where  with  more  pro- 
jjriety  can  it  apply  than  to  the  next  friend, 
nearest  relative,  and  sucli  as  are  most  in- 
terested in  its  safety  and  happiness  ?  The 
father  having  forced  his  child  abroad  to 
seek  a  sustenance  under  such  circumstan- 
ces, sends  a  credit  along  with  him,  and 
shall  not  be  permitted  to  say  it  was  fur- 
nished without  his  consent,  or  against  his 


will."  But  see  Finch  v.  Finch,  22  Conn. 
411,  post  note  («).  In  the  case  of  Ed- 
wards V.  Davis,  16  Johns.  284,  it  was  de- 
cided that  there  was  no  common  law  obli- 
gation rcfpiiring  a  child  to  support  a 
j)arcnt ;  but  Spcurer,  J.,  in  delivering  the 
o!)inion  of  the  court,  said:  "  The  duty  of 
a  ])arent  to  maintain  his  offspring,  until 
they  attain  the  age  of  maturity,  is  a  per- 
fect common  hnv  duty."  In  the  matter  of 
■Ryder,  11  Paige,  187,  Walivorth,  Ch., 
says:  "A  parent  who  has  the  means  is 
undoubtedly  bound  to  suj)[iort  his  or  her 
minor  child."  See  also,  Benson  r.  Rem- 
ington, 2  Mass.  113;  Whipple  r.  Dow,  id. 
415;  Dawes  v.  Howard,  4  id.  97;  Van 
Valkinburgh  v.  Watson,  13  .Johns.  480; 
Pidgin  V.  Cram,  8  New  Ham|).  3;")3,  2 
Kent's  Com.  193  ;  Call  v.  Ward,  4  Watts 
&  Serg.  118. 

(;•)  In  Hunt  v.  Thompson,  3  Scam.  180, 
(1841,)  Wilson,  C.  J.,  said:  "That  a 
parent  is  under  an  obligation  to  provide 
for  the  maintenance  of  his  infant  children 
is  a  i)rinciple  of  natural  law  ;  and  it  is 
ui)on  this  natural  ol)lig;uion  alone  that  the 
duty  of  a  ]iarcnt  to  ])rovide  his  infant  chil- 
dren with  the  necessaries  of  life  rests;  for 
tliere  is  no  rule  of  nuinici)ial  law  enforcing 
this  duty.  The  claim  of  the  wife  upon  the 
husband,  for  necessaries  suitable  to  his 
rank  and  fortune,  is  recognized  by  the 
princi]>les  of  the  common  law,  and  by 
statute.  A  like  claim  to  sonic  extent  may 
l)e  enforced  in  favor  of  indigent  and  iiitirm 
parents,  and  other  relatives,  against  chil- 
dren, &c.,  in  many  civses  ;  but,  as  a  general 
rule,  the  obligation  of  a  jiarent  to  provide 
for  his  offspring  is  left  to  the  naturaf  und 
inextinguishable   affection   which    Provi- 

[263] 


253 


THE   LAW   OF   CONTRACTS. 


[book  I. 


The  law  can  hardly  be  considered  as  positively  settled  either 
in  England  or  in  this  country.  But  we  would  state,  as  strongly 
prevailing  rules  here,  that  where  goods  are  supplied  to  an  infant 
which  are  not  necessaries,  the  father's  authority  must  be  proved 
to  make  him  liable  ;  where  they  are  necessaries  the  father's 
authority  is  presumed  unless  he  supplies  them  himself,  or  was 
ready  to  supply  them  ;  where  the  infant  lives  with  the  father,  or 
under  his  control,  his  judgment  as  to  what  are  necessaries  will 
be  so  far  respected,  that  he  will  be  held  liable  only  for  things 
furnished  to  the   infant  to   relieve   him  from   absolute  want ; 


dence  has  implanted  in  the  breast  of  every 
parent.  This  natural  obligation,  however, 
is  not  only  a  sufficient  consideration  for 
an  express  promise  by  a  father  to  pay  for 
necessaries  furnished  his  child,  but  when 
taken  in  connection  with  various  circum- 
stances has  been  held  to  be  sufficient  to 
raise  an  implied  promise  to  that  effisct. 
But  erther  an  express  promise,  or  circum- 
stances from  which  a  promise  by  the  father 
can  be  inferred,  are  indipensably  necessary 
to  bind  the  parent  for  necessaries  furnished 
his  infant  child  by  a  third  person.  —  Owen 
V.  White,  5  Porter,  435,  (1837,)  seems  to 
deny  the  legal  obligation  of  the  father, 
except  on  a  contract,  expx-ess  or  implied  ; 
but  admits  that  such  contract  is  implied 
where  the  father  fails  in  his  duty  to  sup- 
port the  child,  or  drives  him  from  home. 
Then  the  father  is  "  liable  for  a  suitable 
maintenance."  In  Varney  v.  Young,  1 1 
Verm.  258,  (1839,)  the  court  appear  to 
deny  altogether  that  the  moral  obligation 
of  the  father  constitutes  any  legal  obliga- 
tion. Bennett,  J.,  says  :  "  There  must  be 
proof  of  a  contract,  express  or  implied,  a 
prior  autliority,  or  a  subsequent  recognition 
of  the  claim."—  Perhaps  the  strongest  case 
in  the  American  reports,  against  the  lia- 
bility of  the  father,  is  Gordon  v.  Potter,  17 
Verm.  350,  (1845).  There  the  defendant 
told  his  minor  son  in  the  spring  to  go  out 
to  work,  and  in  the  fall  he  would  get  him 
some  winter  clothes.  The  son  went  to 
service  at  monthly  wages.  In  June  fol- 
lowing, the  plaintifY  furnished  him  with 
doth  and  trimmings  for  a  suit  of  clothes. 
The  fother  knew  of  this  purchase  by  the 
son,  and  furnished  him  money  to  pay  for 
making  them  up  ;  he  also  permitted  him  to 
wear  out  the  clothes.  It  did  not  clearly 
appear  whether  the  plaintiff  furnished  the 
goods  upon  the  son's  or  the  father's  credit, 

[264] 


And  this  might  have  been  a  sufficient 
ground  for  the  decision  itself;  but  liedjield, 
J.,  went  much  further,  and  said :  "  But 
there  is  one  defect  in  the  case,  which  we 
think  must  clearly  and  indisputably  pre- 
clude any  recovery  against  the  father.  It 
does  not  appear  that  the  father  ever  gave 
the  son  any  authority,  either  expressly  or 
by  implication,  to  pledge  his  credit  for  the 
articles  ;  but  the  contrary.  And  unless 
the  father  can  be  made  liable  for  necessa- 
ries for  his  infant  child,  against  his  own 
will,  then,  in  this  case,  the  plaintiff  must 
fail  to  recover.  I  know  there  are  some 
cases,  and  dicta  of  judges,  or  of  elementary 
writers,  which  seem  to  justify  the  conclu- 
sion that  the  parent  may  be  made  liable 
for  necessaries  for  his  child,  even  against 
his  own  will.  But  an  examination  of  all 
the  cases  upon  this  subject  will  npt  justify 
any  such  conclusion."  After  critically 
examining  the  American  and  English 
authorities,  he  concluded  :  "It  is  obvious 
that  the  law  makes  no  provision  for  stran- 
gers to  furnish  children  with  necessaries, 
against  the  will  of  parents,  even  in  extreme 
cases.  For  if  it  can  be  done  in  extreme 
cases  it  can  be  done  in  every  case  where 
the  necessity  exists ;  and  the  right  of  a 
parent  to  control  his  own  child  will  de- 
pend altogether  upon  his  furnishing  neces- 
saries, suitable  to  the  varying  taste  of  the 
times.  There  is  no  stopping-place  short 
of  this,  if  any  interference  whatever  is 
allowed.  If  the  parent  aliandons  the 
child  to  destitution,  the  public  authorities 
may  interfere,  and,  in  the  mode  pointed 
out  by  the  statute,  compel  a  proper  main- 
tenance. But  tins,  according  to  the 
English  common  law,  which  prevails  in 
this  State,  is  not  the  right  of  every  inter- 
meddling stranger." 


I 


en.  xrv'i.]  INFANTS.  *254 

where  the  infant  does  not  live  with  the  father,  but  has  volun- 
tarily left  him,  the  authority  of  the  father  must  be  strictly 
proved,  unless,  perhaps,  in  cases  of  absolute  necessity;  and 
where  he  has  been  deserted  by  the  *fathcr,  or  driven  away  from 
him,  either  by  command  or  by  cruel  treatment,  there  the  infant 
carries  with  him  the  credit  and  authority  of  the  father  for  nec- 
essaries. And  wherever  the  question  is  how  far  the  father  is 
liable  for  necessaries  supplied  to  the  child,  this  word  "  neces- 
saries" will  not  generally  be  understood  in  the  very  liberal 
sense  given  to  it  when  the  question  is  as  to  the  capacity  of  the 
infant  to  contract,  but  will  be  interpreted  according  to  the  cir- 
cumstances of  the  case.  And  if  the  child  be  of  sufficient  age 
and  strength  to  earn  by  proper  exertions  the  whole  or  a  part  of 
his  subsistence,  it  will  not  be  deemed  "  necessary"  that  the  aid 
should  be  rendered  to  him  which  it  would  be  "  necessary  "  to 
give  to  an  infant  incapacitated  by  tender  years,  or  by  debility 
of  mind  or  body,  from  contributing  to  his  own  support. 

So  far  as  the  duty  of  support  certainly  belongs  to  the  parent 
as  a  legal  obligation,  and  is  neglected,  any  other  person  may 
perform  it,  and  will  be  regarded  as  performing  it  for  him  ;  and, 
on  general  principles,  the  law  will  raise  a  promise  on  the  part 
of  the  parents,  to  compensate  the  party  who  thus  did  for  him 
what  he  was  bound  by  law  to  do.  (s)  But  this  rule  is  carried 
no  further  than  its  reason  extends  ;  and  is  guarded  by  many 
restrictions  from  becoming  the  means  of  injury  to  the  parent. 
Thus,  we  have  seen  that  if  the  child  be  living  with  the  parent, 
or,  as  it  is  said  in  some  cases,"  if  he  be  siiO  poleslate  parentis, 
the  law  will  not  presume  that  the  parent  neglects  the  child,  but 
will  presume  a  due  care  of  him,  until  tlie  contrary  is  shown; 
and  of  the  propriety  and  sufficiency  of  the  clothing,  »Jcc.,  the 
parents  must  judge ;  and  if  a  stranger  under  such  circum- 
stances supplies  the  child  even  with  necessaries  he  certainly 
cannot  hold  the  parent  upon  the  contract  implied  by  his  duty. 


(s)  In  the  matter  of  Ryder,  11  PaipfC,  ohiission  of  <luty,  on  tlie  part  of  tlic  par- 

188,    Hu/K-ort/i,  Ch.  savs  :  —  "  A  stranijcr  cnt,    in  sui)plying    the  child   with    neces- 

niay  furnish  necessaries  for  tlie  child,  and  saries."     K(}ually  stronfj  arc  Van  Valkin- 

rccovcr  of  the  parent  compensation  there-  i)urK    v.    Watson,    13    Johns.   480,    and 

for,  where  there  is  a  clear  and  palpahle  I'idgiu  i-.  Cram,  8  New  llamp.  350. 

VOL.  I.                                     23  [  265  ] 


255* 


THE    LAW   OF   CONTRACTS. 


[book  I. 


without  proving  a  dear  and  unquestionable  abandonment  and 
neglect  of  that  duty.  But  if  the  supplier  seeks  to  make  the 
parent  responsible,  on  the  ground  that  his  authority  was  given 
to  the  child,  then,,  if  the  goods  supplied  were  necessaries,  it 
would  seem  from  the  cases,  as  we  have  said,  that  slight  evi- 
dence is  sufficient  to  prove  such  authority ;  as  that  the  father 
saw  the  son  wear  the  clothes,  or  knew  that  he  had  received 
them,  and  made  no  objection.  But  if  the  things  supplied  are 
strict  and  absolute  necessaries,  needful  for  the  child's  subsist- 
ence, or  if  the  child  is  living  away  from  the  parent,  under  cir- 
cumstances which  indicate  a  desertion  by  the  parent,  or  that 
the  child  has  been  expelled  from  his  house,  or  caused  to  leave 
it  by  the  wrongful  acts  of  the  parents,  then  the  authorities  and 
dicta  to  which  *we  have  referred  lead  to  the  conclusion  that 
whoever  supplies  the  wants  of  the  child  may  recover  from  the 
parent,  (t)  But  it  has  been  held  in  England  that  a  father  was 
under  no  legal  obligation  to  educate  his  child,  and  could  not 
be  made  liable  for  the  expenses  of  his  instruction,  where  the 
wife,  being  cruelly  treated  at  the  husband's  house,  left  it,  taking 
the  children  with  her.  Precisely  this  question  has  not  occurred 
in  this  country,  but  the  weight  and  tendency  of  authorities 
would  not  require  us  to  believe  that  the  decision  would  be  the 
same  here  as  in  England.  If  the  wife  be  divorced,  with  ali- 
mony, and  the  care  of  the  children  be  given  to  her,  the  father 
has  been  held  liable  not  only  to  her  for  the  expenses  she  incurs 


(t)  We  are  unable  to  discriminate  these 
cases,  on  principle,  from  any  which  may 
occur,  in  which  compensation  is  sou<rht 
of  a  fatlier  for  things  supplied  to  an  in- 
fant, which  were  absolutely  needed  for  his 
subsistence,  and  which  the  child  would 
not  have  had  unless  they  were  sujjplied 
by  a  stranger.  Where  the  infant  has 
unnecessarily  and  in  his  own  wrong  left 
his  parent,  and  renounced  the  filial  rela- 
tion, it  seems  to  be  held  that  the  liability 
of  the  parent  ceases.  But  in  the  princi- 
pal case  in  which  this  is  directly  decided, 
(Angel  V.  McLcllan,  IG  Mass.  28,)  the 
child  had  absconded  to  avoid  arrest  for 
felony ;  and  although  the  case  finds  that 
"  he  was  in  distress  in  a  foreign  country," 
it  does   not  appear  that   he  might  not 

[266] 


have  supported  himself  by  labor,  or,  in 
other  words,  that  the  things  supplied 
were  strict  and  absolute  necessaries.  We 
have  some  doubts,  therefore,  whether 
even  this  exception  would  always  be  al- 
lowed. Indeed,  we  are  disposed  to  regard 
the  rule  of  law,  in  this  country,  generally, 
if  not  universally,  as  imposing  a  liability 
on  the  father  for  all  supplies  to  an  infant, 
which  were  so  absolutely  needed  that  he 
:nust  have  them  or  perish.  The  liability 
might  be  put  on  different  grounds  in  dif- 
ferent courts,  —  in  some  on  the  ground  of 
contract  and  of  implied  authority,  and  in 
others  on  the  legal  obligation  growing 
out  of  the  moral  obligation,  —  but  on 
some  ground  or  other  we  think  it  would 
generally  be  enforced. 


CII.   XVI.]  INFANTS.  *256 

in  their  support  and  education,  but  also  to  a  stranger  whom 
she  marries,  and  who  continues  to  support  the  children,  (w) 
And  where  the  father  and  mother  separate,  and  the  father  per- 
mits the  mother  to  take  the  children  with  her,  then  the  father 
constitutes  the  mother  his  agent  to  provide  for  his  children,  and 
is  bound  by  her  contract  for  necessaries  for  them,  (v)  There  is, 
indeed,  authority  for  holding  that  if  a  parent  of  sufficient  abil- 
ity to  provide  suitably  for  his  children  neglect  to  do  so,  he  is 
guilty  of  an  indictable  offence,  {w) 

It  becomes  a  different  question  when  the  child  has  an  inde- 
pendent property  sufficient  for  his  own  maintenance ;  what 
then  is  the  father's  obligation  ?  It  would  seem  that  the  rule 
*of  law  was  formerly,  that  if  the'parent  had  abundant  means 
himself,  he  was  bound  to  provide  for  his  children,  even  if  they 
iiad  independent  property,  (x)  And  this  rule  is  enforced 
even  now  in  some  instances,  (/y)  It  is  however,  in  general 
relaxed  ;  and  courts  go  far  in  appropriating  the  means  of  the 
child  to  his  own  support,  although  the  father  may  also  be  en- 
tirely able  to  maintain  him.  (z)  And  where  the  father  is  with- 
out means  to  educate  and  support  his  children  in  a  manner 
which  is  rendered  suitable  by  their  position  and  expectations, 
courts  of  equity  will  not  only  make  an  allowance  out  of  the 
estate  of  the  children,  but  will,  if  necessary,  take  from  the 
principal  of  a  vested  legacy  for  the  proper  maintenance  and 
education  of  the  legatee,  (a)  Such  decrees  are  usually  made 
for  the  future  maintenance  of  the  child  ;  but  it  cannot  be  said 
that  there  is  a  positive  rule  preventing  retrospective  allow- 
ances, {b) 


{«)  Rtanton   r.    Willson,   3   Day,   37.  (.r)  Dawes  r.  Ilowarrl,  4  Mass.  97. 

Rut  tliis  case  was  coniiiK'ntt'd  upon  and  (y)  In  the  matter  of  Kane,  2  Barb.  Ch. 

(Icniedin  Finch   r.  Fiiuh,  22   Conn.  411,  R.  375. 

and  it  was  decided  l>y  a  majority  of  tlie  (r)  Jer\-oise  v.  Silk,  Cooper,  Eq.  Rep. 

court    that    a   divorced    wife    could    not  52;    Maherly  v.   Turton,   14    Ves.    499; 

maintain    an    action    ajrainst    licr   former  Simon  v.  I3arl)er,  1  Tamlyn,  22. 

husl)and   to   recover   for   the   support   of  (n)   Newport    v.    Cook,    2    Ashmead, 

their    infant    children,    the     custody    of  332;  Ex  parte   Green,   1    Jac.   &  Walk, 

whom  was  awarded  to  her.     Two  of  the  253.     Se«    also.    Carter    v.   RoUard,    1 1 

five  judf:cs,  l*owever.  adhered  to  the  de-  lAimph.  339. 

eision  of  Stanton  v.  Willson.  (li)  In  the  matter  of  Kane,  2  Barb.  Ch, 

(r)  Rawlvns  v.  Vandyke,  3  Esp.  251.  R.  375. 

(»•)  Rcx'r.  Friend,  Russ.  &  Ry.  C.  C. 
20. 


[267] 


257* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Whether  the  mother  is  under  an  equal  obligation  with  the 
father  to  maintain  the  child,  the  father  being  dead,  seems  not 
to  be  quite  certain  ;  but  the  weight  of  authority,  both  in 
England  and  in  this  country,  might  perhaps  justify  the  conclu- 
sion that  she  is  not  under  a  legal  obligation,  (c)  or  that  it  is 
very  greatly  qualified  in  important  particulars.  Thus,  if  the 
child  has  property,  the  mother  is  not  bound  for  the  child's 
maintenance  where  the  father  would  be.  (d)  And  a  court  of 
*equity  has  refused  to  compel  a  mother  to  furnish  the  means 
of  educating  a  child,  even  where  she  was  entirely  able  to  do 
so ;  and  it  is  even  said  that  the  court  have  no  power  to  do 
this,  (e)  A  husband  is  not  responsible  for  the  child  of  his 
wife  by  a  former  husband,  unless  he  takes  him  into  his  house  ; 
but  if  he  does,  he  assumes,  perhaps,  the  responsibility  for  his 
maintenance,  so  long  as  he  retains  him  as  one  of  his  fam- 
ily. (/)  But,  on  the  other  hand,  the  relation  which  he  in  this 
case  sustains  to  the  child  rebuts  any  presumption  which  might 
otherwise  exist,  of  a  promise  or  obligation  to  pay  the  child  for 
his  services,  {g")  as  in  the  case  of  his  own  children,  (g'g') 

Where  the  parent  is  thus  obliged  to  provide  for  the  child  a 
home,  and  a  sufficient  maintenance,  so,  on  the  other  hand,  he 
has  a  right  to  the  custody  of  the  child  during  his  minority,  and 
is  entitled  to  all  his  earnings,  (h)     For  these  two  things,  this 


(c)  The  chancery  cases  which  assert 
this  obligation,  appear  to  do  so  on  the 
ground  of  the  ability  of  the  mother  and 
the  need  of  the  cliiklren.  See  Hughes  v. 
Hughes,  1  Bro.  Ch.  387.  In  Benson  v. 
Remington,  2  Mass.  113,  the  court  say: 
"  The  law  is  very  well  settled  that  parents 
are  under  obligations  to  support  their 
children,  and  that  they  are  entitled  to 
their  earnings.""  In  Nightingale  v.  With- 
ington,  15  Mass.  274,  Parker,  C.  J., 
says :  "  Generally  the  father,  and  in 
case  of  his  death  the  mother  is  entitled  to 
the  earnings  of  their  minor  children. 
This  right  must  be  founded  upon  the 
obligation  of  the  parents  to  nurture  and 
support  their  children."  But  it  is  only  a 
dictum  in  either  case  ;  and  in  neither  do 
the  court  refer  to  any  authority  whatever 
for  this  rule;  nor  are  we  aware  of  any 
direct  adjudication,  in  which  it  is  deter- 
mined as  the  point  of  the  case,  that  the 
mother  and  the  father  stand  on  the  same 

[268] 


footing  in  this  respect.  See,  against  the 
mother's  obligation,  Tilton  i'.  Russell,  11 
Ala.  497  ;  Raymond  r.  Loyl,  10  Barb. 
Sup.  Ct.  483 ;  Pray  v.  Gorham,  31  Maine, 
241  ;  Commonwealth  v.  Murray,  4  Binn. 
487. 

(d)  In  Dawes  v.  Howard,  4  Mass.  97, 
it  is  said  that  where  minor  children  have 
property  of  their  own,  the  father  is,  not- 
withstanding, bound  to  support  them,  if 
of  ability ;  but  it  is  otherwise  with  the 
mother. 

(e)  In  the  matter  of  Ryder,  11  Paige, 
185. 

( /)  Stone  V.  Carr,  3  Esp.  1 ;  Cooper  v. 
Martin,  4  East,  82  ;  Tubb  v.  Harrison,  4 
Term  R.  118  ;  Ereto  v.  Brown,  4  Mass. 
635  ;  Minden  v.  Cox,  7  Cow.  235. 

(v)  Williams  v.  Hutchintion,  5  Barb. 
Slip.  Ct.  122,  3  Comst.  312. 

{(/g)  See  post,  Book  III.,  Chap.  IX., 
Sect.  1. 

(h)  See  note  (c),  siqji-a. 


CH.   XVI.]  INFANTS.  *258 

obligation  and  this  right,  go  together.  Thu?,  if  the  father  sepa- 
rates from  the  mother,  and  permits  the  child  to  leave  him  and 
go  with  her,  he  is  no  longer  entitled  to  the  earnings  of  the 
child,  and  has  no  power  to  avoid  his  reasonable  contracts ;  (?) 
and  therefore  the  son  may  in  such  case  make  a  special  contract 
with  his  employer,  which  is  valid  against  the  father's  will.  And 
if  the  parent  be  himself  an  insane  person  and  a  pauper,  and 
therefore  under  no  obligation  to  maintain  the  child,  he  is  not 
entitled  to  the  child's  earnings,  nor  is  the  town  which  supports 
the  parent  entitled  to  receive  the  child's  wages,  so  long  as  the 
child  himself  is  not  a  pauper,  (ii)  And  it  has  been  said  that 
wherever  the  son  is  not  living  with  the  father,  the  son  may  of 
necessity  be  entitled  to  receive  the  wages  of  his  labor,  and  that 
the  father's  consent  to  the  son's  receipt  and  appropriation  of 
them  would  be  inferred  in  such  case  from  very  slight  circum- 
stances, (j) 

It  is  certain  that  a  father  may,  by  an  agreement  with  his 
minor  child,  relinquish  to  the  child  the  right  which  he  would 
otherwise  have  to  his  services,  and  may  authorize  those  who 
employ  him  to  pay  him  his  wages,  and  will  then  have  no  right 
to  demand  those  wages,  either  from  the  employer  or  from  the 
child,  (k)  And  such  an  agreement  may  be  inferred  *from  cir- 
cumstances ;  as  where  a  father  left  his  child  to  manage  his  own 
affairs,  and  make  and  execute  his  own  contracts  for  a  consider- 
aJale  time.  (/)  Or  even  if  the  father  knew  that  the  son  had 
made  such  a  contract  for  himself,  and  interposed  no  objec- 
tion, (m)  And  it  has  been  held  that  an  infant  whose  father  is 
dead,  and  whose  mother  is  married  again,  is  entitled  to  his  own 
earnings.  («) 

It  is  very  common  in  this  country  to  see  in  the  newspapers 
an  advertisement  signed  by  a  father,  stating  that  he  has  given 

()')  Wodcll  v.  Co{;cfrPsImIl,  2  Mctc.  89;  fiuhcr  may  t;ive  to  his  minor  son  a  part 

Cliilson  V.  Pliilips,   1   Venn.  41. j  as  well  a.s  the  whole  of  his  time. 

(ii)  Jenncss  r.  Emerson,  15   N.  IF.  486.  (/)  Canqvar  v.  Cooper,  3  Barh.    Sup. 

(  ;')  Gale  (;.  I'arrott,  1  New  Ilamp.  28.  Ct.  115  ;  Clinton  v.  York,  26  Maine,  167  ; 

(I)  Jenncy    v.    Alden,    12    Mass.  .375  ;  Stiles  r.  Granville,  6  Cush.  458  ;   AVodell 

Morse  v.  Welton,  6  Conn.  547  ;  Whiting  r.  Copgeshall,  2  Mete.  91  ;  Cloud  v.  Ham- 

V.  Earle,  3  I'iek.  201  ;  Vaniey  r.  Younp,  ilton,  11  Humph.  104. 
11    Verm.    258;    Burlin<:anu'  r.  liurlin-         {in)   Whitin;r    ''.   Earle,   3    Pick.    201; 

game,    7    Cow.    92.        In     Tillot.son     r.  Armstrong,'  ;•.  MrDonald,  10  Barb.  300. 
McCrillis,  U  Verm.  477,  it  is  held  that  a         (»)  Freto  v.  Brown,  4  Mass.  675. 

23*  [  2G9  ] 


259* 


THE   LAW    OF    CONTRACTS. 


[book  I. 


to  his  minor  son  "  his  time,"  and  that  he  will  make  no  future 
claim  on  his  services  or  for  his  wages,  and  will  pay  no  debts  of 
his  contracting.  Such  a  notice  would  undoubtedly  have  its 
full  force  in  reference  to  any  party  to  whom  a  knowledge  of  it 
was  brought  home.  And  if  a  stranger,  not  knowing  this  ar- 
rangement, should  employ  the  son,  he  might  still  interpose  it  as 
a  defence  if  the  father  claimed  the  son's  wages.  But  if  a 
stranger  supplied  a  son,  at  a  distance  from  his  home,  with  suit- 
able necessaries,  in  ignorance  of  such  arrangement,  there  is  no 
sufficient  reason  for  holding  that  it  would  bar  his  claim  against 
the  father.  And  we  think  that  he  might  recover  from  the 
father  for  strict  necessaries,  even  if  he  knew  this  arrangement. 
On  what  ground  could  the  father  discharge  himself  from  his 
liability  by  such  a  contract?  Even  if  the  father  had  paid  the 
son  a  consideration  for  the  release  of  all  further  obligation,  it 
would  be  a  contract  with  an  infant,  and  void  or  voidable,  be- 
cause certainly  not  for  necessaries.  And  the  whole  policy  and 
reason  of  the  law  of  infancy  would  seem  to  be  opposed  to  per- 
mitting a  father  to  cast  his  son  in  this  way  upon  the  public,  and 
relieve  himself  from  the  obligation  of  maintenance. 

It  may  be  added,  that  while  an  infant  remains  under  the  care 
and  control  of  his  father,  and  is  in  fact  supported  by  him,  the 
infant  is  not  liable,  even  on  his  express  contract,  to  a  *stranger 
for  necessaries  furnished  for  him.  One  reason  given  for  this,  is, 
that  it  would  interfere  with  his  father's  right  of  judging  how  hje 
should  be  supported,  (o)  Where  services  are  rendered  at  the 
parent's  request,  it  will  be  presumed  that  credit  is  given  to  him 
alone,  and  in  that  case  the  infant  cannot  be  liable  even  for 
necessaries,  (p) 

The  common  law  liability  of  a  parent  to  support  his  child 
ceases  altogether  when  the  infant  becomes  of  full  age ;  and 
then  a  parent  would  not  be  bound  even  by  his  express  promise 
to  pay  for  necessaries  previously  furnished  to  the  child,  not  at 


(o)  Angel  V.  McLcllan,  16  M.ass.  28; 
Wailing  v.  Toll.  9  Johns.  141  ;  Hull  v. 
Connolly,  3  McCord,  6  ;  Kline  v.  L'Ame- 
roux,  2  Paige,  419 ;  Guthrie  v.  Murphy,  4 
Watts,   80 ;  Simms  v.  Norris,  5  Ala.  42  ; 

[270] 


Johnson  v.  Lines,  6  W.  &  S.  80  ;  Phelps 
V.  Worcester,  11  New  Hamp.  51. 

{p)  Duncomb  v.  Tickridge,  Aleyn,  94; 
Phelps  V.  Worcester,  11  New  Hamp.  51  ; 
Simms  v.  Norris,  5  Ala.  42. 


en.  XVI.]  INFANTS.  *260 

the  request  of  the  father,  (q)     If  they  were  furnished  at  his 
request  it  would  be  otherwise,  (r) 

By  statute  of  43  Eliz.  c.  2,  the  father,  "  being  of  ability,"  is 
liable  to  contribute  to  his  child's  support  even  after  he  becomes 
of  age.  And  in  some  of  our  States  similar  provision  is  made,  (s) 
But  such  a  liability  is  wholly  statutory,  and  does  not  accrue 
until  proceedings  are  had  pursuant  to  the  statute,  (l)  So  at 
common  law  a  son  is  not  liable  for  the  support  of  an  infirm  and 
indigent  parent,  (v)  Nor  is  a  father  liable  at  common  law  for 
the  support  of  his  illegitimate  child.  The  only  remedy  is  under 
the  statute,  procuring  an  order  of  filiation,  and  the  like,  (f) 


SECTION    III. 

VOIDABLE   CONTRACTS    FOR   NECESSARIES. 

As  an  infant  is  not  permitted  to  enter  into  general  contracts, 
because  his  immature  judgment  would  expose  hiin  to  *injury, 
and  as  he  is  nevertheless  permitted  to  contract  for  necessaries, 
because  otherwise  he  might  suffer  for  the  want  of  them,  so  this 
exceptional  permission  is  qualified  in  an  important  particular, 
for  the  same  purpose  of  protecting  him  from  wrong.  He  cannot 
contract  to  pay  even  for  necessaries,  in  such  wise  as  to  bar  an 
inquiry  into  the  price  and  value.  Tlie  law  permits  persons  to 
supply  his  ne(;essities,  and  have  therefor  a  valid  claim  against 
him  for  their  fair  worth  ;  but  it  does  not  permit  them  to  make 
a  bargain  with  him  as  to  the  price,  which  shall  bind  him  abso- 
lutely, because  it  does  not  permit  him  to  determine  this  price 

iq)  Mills  V.  Wyinan,  3  Pick.  207.     Sec  (/)  Loomis  v.  Newhall,   15  Tick.  159  ; 

also,  Cook  I'.  lirailU'v,  7  Conn.  57.  Mortiniorc  v.  Wrifrlit,  6  M.   &  W.  488; 

((•)  Loomis  r.  Ncwliall,  15  Titk.  159.  Gonlon  r.  Potter,  17  Verm.  348;  Shelton 

(.s)  The  provision  in  tiic  Kev.  tStat.  of  r.  Si)rinRett,  20  E.  L.  &  E.  281. 

Ma.ssacluisetts,    cli.    4G,    sect.    5,  is  very  (")  Edwards  r.  Davis,  16  Johns.  281  ; 

broad  :  "  Tlic  kindred  of  any  such  poor  Rex   r.   Mundcn,    1    8tr.  190.     But  see 

j)erson,  if  any  he  shall  have,  in  the  line  (iilhert  r.  Lynes,  2  Root,   168  ;  Ex  parte 

or  dofiree  of  father  or  {rrandfather,  mother  Hunt,  5  Cow.  284. 

or  prandmother,   cliildren    or    prandcliil-  (r)    Furiilio    v.    Crowthor,  7    Dow.    & 

dren,  i)y  consanguinity,  living:  within  this  Ryl.  612;   Cameron   v.   Baker,   1    Car.  & 

State,  and  of  sullicient  ability,  shall   be  1\   268;    Monericf    t'.    Ely,    19    Wend. 

bound  to  support  such  pauper,  in  proper-  405. 

tiou  to  their  respective  ability." 

[271] 


261' 


THE   LAW   OF    CONTRACTS. 


[book  I. 


for  himself,  by  reason  of  his  presumed  inability  to  take  proper 
care  of  his  own  interests;  but  the  value  and  the  price  may  be 
determined  by  a  jury.  And  a  seal  to  the  instrument  would 
give  it  no  additional  force  in  this  respect,  but  the  infant  would 
still  be  bound  only  for  a  fair  value.  For  the  same  reason  an 
infant  cannot  be  bound  for  the  amount  in  an  account 
stated  ;  (tv)  nor  for  the  sum  mentioned  in  his  note,  although 
given  for  necessaries,  but  only  for  the  value  of  the  necessa- 
ries ;  (x)  nor  for  the  amount  due  on  his  bond ;  for  the  ancient 
distinction  which  held  him  on  a  bond  without  a  penalty,  but 
not  on  a  bond  with  penalty,  would  probably  be  now  disre- 
garded. {!/) 

*Neither  can  an  infant  enter  into  contracts  of  business  and 
trade  ;  for  this  is  not  necessary,  and  might  expose  him  to  the 
misfortune  of  entering  upon  adult  life  with  the  burden  of  bank- 
ruptcy resting  upon  him.  (r)     But  if  he  uses,  as  necessaries  for 


(w)  Ingledcw  v.  Douglas,  2  Starkie, 
36;  Trueman  v.  Hurst,  1  T.  R.  40; 
Hedglev  i^.  Holt,  4  C.  &  P.  104  ;  Oliver 
V.  Woodi-otte,  4  M.  &  W.  650 ;  Williams 
?\  Moor,  1 1  id.  256 ;  Bceler  v.  Young,  1 
Bibb,  519. 

(.r)  McCrillis  v.  How,  3  New  Hamp. 
348;  Bouchellw.  Clary,  3  Brevard,  194; 
Swasey  v.  Vanderheyden,  10  Jobus.  33  ; 
Fenton  v.  Wliite,  1  "Southard,  100  ;  Mc- 
Minn  v.  Riclimoiids,  6  Yerg.  9  ;  Hanks  v. 
Deal,  3  McCord,  257.  Some  of  these 
cases  declare  an  infant's  note,  though 
given  for  necessaries,  void,  but  it  is  con- 
ceived they  mean  voidable  onh"-,  and  not 
that  such  note  is  not  suscc])tible  of  ratili- 
cation.  Although  an  infant's  note  given 
for  necessaries  would  not  bind  him  as  to 
the  amount,  he  may  yet  be  sued  on  the  in- 
strument, and  the  plaintiff  may  recover  the 
just  value  of  the  necessaries  for  which  the 
note  was  given.  Earle  v.  Reed,  10  Mete. 
387 ;  Dubose  v.  Wheddon,  4  McCord, 
221.  See  also,  Stone  r.  Dennison,  13 
Pick.  1  ;  Breed  r.  Judd,  1  Gray,  455,  that 
wherever  the  form  of  an  infant's  contract 
for  necessaries  is  such  that  the  considera- 
tion is  open  to  inquiry,  he  may  I)e  sued 
upon  the  contract  itself.  And  in  Bradley 
r.  Pratt,  23  Verm.  378,  interest  is  allowed 
on  a  promissory  note  given  by  an  infant, 
and  it  is  declared  that  there  is  no  general 
rule  exempting  infants  from  a  liability  to 
pay  interest  on  their  just  debts. 

[  272  ] 


(?/)  The  older  cases  hold  that  an  infant's 
bond,  at  least,  if  given  ivith  a  penaltij,  is 
absolutely  void,  not  voidable  merely, 
although  given  for  necessaries.  Ayliff  v. 
Archdale,  Cro.  Eliz.  920  ;  Fisher  v".  Mow- 
bray, 8  East,  300  ;  Baylis  v.  Dineley,  3 
M.  &-  S.  477 ;  Hunter  r.  Agnew,  1  Fox  & 
Smith,  (Irish)  15;  Allen  ?\'Minor,  2  Call, 
70 ;  Colcock  r.  Ferguson,  3  Des.  482. — 
It  is  conceived,  however,  that  in  this  coun- 
try, bonds,  like  other  contuicts,  are  only 
voidable,  and  may  be  ratified.  Conroe  v. 
Birdsall,  1  Johns.  Cas.  127.  The  mar- 
ginal note  to  this  case  erroneously  uses 
the  word  void,  in  relation  to  such  bond ; 
the  court  said  it  was  only  voidable. 

(z)  AVhittinghara  v.  Hill,  Cro.  Jac.  494 ; 
Whywall  v.  Champion,  2  Strange,  1083; 
Dilk  V.  Keighley,  2  Esq.  480.  Latt  v. 
Booth,  3  Carr.  &  Kir.  292.  But  if  with 
his  guardian's  consent  he  is  canying  on  a 
certain  business,  it  has  been  held  that  he 
might  bind  himself  to  pay  for  articles 
suitable  and  necessary  for  that  business. 
Rundell  v.  Keeler,  7  Watts,  237.  Sed 
quir-re.  Although  an  infant  "cannot  trade, 
and  would  not  be  bound  to  execute  any 
contract  of  trade  he  may  have  entered 
into,  yet  if  he  has  in  part  executed  such 
contract  himself  he  may  sue  the  adult  for 
non-performance  on  his  part,  and  this 
while  he  is  yet  an  infant.  Warwick  v. 
Bruce,  2  M.  &  S.  205.  As  to  bankruptcy 
of  an  infant,   see    post,  in    chapter    on 


CH.  XVI.] 


INFANTS. 


*262 


himself  or  his  family  the  goods  furnished  to  him  for  the  pur- 
poses of  trade,  he  is  so  far  liable,  (a)  This  liability  to  pay  even 
for  necessaries  seems  to  be  founded  only  on  his  actual  necessi- 
ties, and  if  he  had  already  supplied  himself  with  sufficient 
clothing,  it  was  held  that  he  was  not  bound  to  pay  for  similar 
articles  subsequently  purchased,  although  they  might  be  suitable 
in  themselves,  and  although  he  had  avoided  payment  for  the  first 
purchase  on  the  ground  of  his  infancy,  (b)  As  he  cannot  trade, 
neither  can  he  subject  himself  to  the  incidents  of  trade,  as  bank- 
ruptcy or  insolvency,  (c)  nor  is  he  liable  as  a  partner  of  a  mer- 
cantile firm,  (d)  Nor  *can  he  be  sued  on  his  covenant  as  an 
apprentice,  (c)    Nor  is  his  contract  for  labor  and  service  generally 


Bankruptcy  and  Insolvency  in  second 
volume. 

(f()  Turbei-ville  f.  Wliitehouse,  1  C.  & 
P.  94,  12  Price,  692. 

(6)  Burghart  v.  Angerstein,  6  C.  &  P. 
690. 

(c)  For  no  man  can  be  a  bankrupt,  for 
debts  whieb  be  is  not  oblji^ed  to  pay.  Kex 
V.  Cole,  1  Ld.  llaym.  443,  per  I'lolf,  C. 
J.;  J^x  parte  Sydebotliain,  1  Atk.  146. — 
And  a  commission  of  bankiiijitcy  aj^ainst 
an  infant  is  roi(l,  and  not  merely  voidable. 
Belton  V.  Hod<,as,  9  Bini;.  30.') ;  O'Brien 
V.  Cnrrie,  3  C.  &  P.  283.  Tliis  is  the 
English  rule  ;  i)Ut  in  this  country  it  lias 
been  held  tliat  an  infant  is  entitled  to  the 
benefit  of  the  bankru|)t  law  of  the  United 
States  of  1841,  and  that  the  proceedings 
might  be  in  his  own  name.  In  re  Samuel 
Book,  3  McLean,  317. 

((/)  If,  however,  an  infant  enfrafrcs  in 
a  partnership,  he  must,  at  or  within  a 
reasonable  time  after  the  period  of  his 
coming  of  age,  notify  his  disathrniance 
thereof  ;  otherwise  he  will  be  deemed  to 
have  confirmed  it,  and  will  be  bound  by 
subseipient  contracts  made  on  the  credit 
of  the  i)artnership.  Goode  r.  Harrison,  5 
B.  &  Aid.  147.  B'lijlfily  J.,  in  this  case, 
said  ;  "  It  is  dear  that  an  infant  may  be 
in  partuersliip.  It  is  tiiu'  that  be  is  not 
liable  for  contracts  entered  into  during  his 
infancy ;  but  still,  he  may  be  a  partner. 
If  lie  is  in  point  of  fact  a  partner  during 
his  infancy,  he  may,  when  he  comes  of 
nge,  elect  if  he  will  lontinue  that  partner- 
shiji  or  not.  If  he  continues  the  partncr- 
siiip,  he  will  tiien  be  liable  as  a  partner; 
if  he  dissolve  the  jiartnershij),  and  if,  when 
of  age,  he  takes  the  jirojicr  means  to  let 
the  world  know  that  the  partnership   is 


dissolved,  then  he  will  cease  to  be  a  part- 
ner. But  the  foundation  of  my  opinion 
is  the  negligence  of  Bennion  at  the  time 
he  became  of  age.  Sup])ose  an  infant  is 
not  really  a  partner,  and  that,  during  his 
infancy,  he  never  in  fact  enters  into  any 
joint  purchase,  but  that  he  holds  out  to 
different  ])eople,  '  I  am  a  partner  with  A 
B,'  and  then  comes  of  age.  Sujipose  also 
that  the  person  to  whom  he  made  the  rep- 
resentation furnishes  A  B  with  goods,  A 
B  representing  himself  to  be  a  partner 
with  the  infant,  and  tiie  latter  having  done 
nothing  to  correct  the  mistake  and  appre- 
hension in  the  mind  of  the  seller  of  those 
goods  ;  I  should  think,  in  such  a  case  as 
that,  the  infant,  the  pei-son  who,  when  he 
was  an  infant,  had  rejiresented  himself  as 
being  a  partner  with  A  B,  would,  by  suf- 
fering that  delusion  to  continue  when  he 
became  of  age,  and  neglecting  to  set  the 
matter  right,  be  liable  to  all  those  persons 
upon  whom  the  delusion  o])erated.  That 
is  the  justice,  and  as  it  seems  to  me,  the  law, 
of  the  case."  So  in  Miller  r.  Sims,  2  Hill, 
So.  Car.  R.  479,  it  was  held  that  an  in- 
fant |)artncr,  who  afterwards  confirmed 
the  contract  of  ]»artnership,  by  transacting 
the  business  and  receiving  the  protits,  he- 
came  thereby  liable  on  all  the  jirevious 
liabilities  ij['  tlic  lirm,  even  such  as  were 
not  known  to  him.  But  as  to  the  last 
jtoint  see  contra,  Grabtrec  i;.  May,  I  B. 
Monroe,  289. 

(i')  It  is  clear  that  an  infant  cannot  be 
sued  on  his  covenants  of  inilenture.  See 
(.iylbcrt  r.  Fletdier,  Cro.  Car.  179;  Jen- 
nins  V.  Pitman,  llutton,  63  ;  Lvllv's  case, 
7  Mod.  l.");  Whitley  ;•.  Loft  us,  "s  Mod. 
190;  Frazicr  1-.  Kowan,  2  Brev.  47;  Mc- 
Kuight  V.  Hogg,  3  Brev.  44.  —  But  if  the 

[  273  ] 


263* 


THE    LAW    OF    CONTRACTS. 


[book  I. 


binding.  (/)  But  enlistments  in  the  navy,  though  made  with- 
out the  consent  of  the  parent  or  guardian,  are  binding,  and  the 
infant  cannot  avoid  them ;  (^■)  it  is  otherwise  as  to  the 
army,  (g-g-)  Neither  can  he  avoid  a  contract  whereby  he  under- 
takes to  do  what  he  is  under  a  legal  obligation  to  do ;  as  a 
bond  executed  under  a  statute,  to  indemnify  a  town  for  the  sup- 
port of  an  illegitimate  child  ;  for  which  *an  order  of  filiation 
has  been  made  upon  him.  (//)  He  is  not  responsible  as  an  inn- 
keeper for  losses  sustained  by  his  guests,  (i)  Nor  will  joining 
her  husband  in  a  conveyance  bar  an  infant  feme  covert  of  her 
right  of  dower. (u) 


infant  is  a  party  to  tlie  indenture,  or  l)is 
consent  be  expressed  in  it,  many  cases 
have  held  tliat  the  contract  of  apprentice- 
ship is  binding  absolutely  upon  him,  and 
that  he  cannot  dissolve  the  relation  thus 
created.  See  Ilex  r.  Great  Wigston,  3 
B.  &  C.  484.  —  And  a  right  of  action 
necessarily  results  to  the  injured  party  for 
a  breach  thereof.  Woodruff  v.  Logan,  1 
Eng.  Rep.  (Ark.)  276.— And  this,  be- 
cause it  was  said  that  such  contracts  must 
be  for  the  infant's  benefit,  and  therefore  he 
should  not  avoid  them.  But  analogy  and 
principle  would  seem  to  require  that,  in- 
dependently of  any  statutory  provisions 
regulating  this  matter,  this  contract,  like 
all  others,  should  be  voidalile  at  his  elec- 
tion. See  the  cases  cited  in  the  next  note.  - 
Where  a  statute  allows  a  parent  to  bind 
his  son  as  an  apprentice,  undoubtedly  an 
indenture  executed  in  pursuance  of  such 
statute  would  bind  all  the  parties  to  it ; 
and  the  infant  could  not  dissolve  the  re- 
lation tlius  created,  but  it  would  not  neces- 
sarily follow  that  the  remedy  of  the  adult, 
for  the  desei'tion  of  the  appreiuico,  would 
be  an  action  m/ainst  him  on  his  covenants. 
See  also  Harper  v.  Gilbert,  5  Cusli.  417. 
(/)  Vent  V.  Osgood,  19  Pick.  572  ; 
Moses  V.  Stevens,  2  Pick.  332 ;  Nickei'son 
V.  Easton,  12  Pick.  110;  Francis  v.  Fcl- 
mit,  4  l)ev.  &  Batt.  498  ;  Thomas  v.  Dike, 
11  Verm.  273;  Peters  v.  Lord,  18  Conn. 
337.  And  if  an  infant  do  avoid  such  con- 
tract, when  part  performed,  he  may  re- 
cover on  a  quantum  meruit  for  the  hibor 
actually  performed  under  it.  Vent  v.  Os- 
good, 19  Pick.  572  ;  Judkins  i».  Walker, 
17  Maine,  38  ;  Medbury  v.  Watrous,  7 
Hill,  110,  (overruling  the  contrary  cases 
of  McCoy  V.  Huffman,  8  Cow.  84  ;  Weeks 
V.  Leighton,  5  N.  Hamp.  343 ;  Harney  v. 
Owen,   4    Blackf.   337).      Deducting    it 

[274] 


seems  any  injury  the  adult  may  have  sus- 
tained by  such  avoidance.  Thomas  v. 
Dike,  1 1  Verm.  273  ;  Moses  v.  Stevens, 

2  Pick.  332;  Judkins  v.  Walker,  17 
Maine,  38.     But  see  Whitmarsh  r.  Hall, 

3  Denio,  375,  contra,  as  to  deducting  for 
injury  to  the  adult. 

[g]  Commonwealth  v.  Gamble,  11  S.  & 
R.  93 ;  Commonwealth  v.  Murray,  4 
Binn.  487  ;  United  States  v.  Bainbridge, 
1  Mason,  71  ;  United  States  v.  Blakeney, 
3  Grattan,  405. 

(gg)  The  statutes  of  the  United  States 
provide  that  no  person  under  the  age  of 
twenty-one  years  shall  be  enlisted  without 
the  consent  of  his  parent,  guardian,  or 
master.  See  United  States  v.  Bainbridge, 
1  Mason,  71  ;  Commonwealth  v.  Harri- 
son, 11  Mass.  63;  Commonwealth  v. 
Gushing,  11  Mass.  67. 

{h)  People  V.  Moores,  4  Denio,  518. 
So  where  a  father  entered  land  in  tlie 
name  of  his  minor  son,  for  the  jmrpose  of 
defrauding  his  creditors,  and  afterwards 
sold  the  land,  which  the  son  by  his  direc- 
tiou  convej'cd  by  his  own  deed,  during  his 
infiincy,  to  the  purchaser,  it  was  held  that 
such  deed  was  one  which  the  law  would 
have  compelled  him  to  make,  and  there- 
fore could  not  be  avoided  b}'  him  on  arriv- 
ing at  full  age.  Elliot  v.  Horn,  10  Ala. 
348.  In  like  manner  equal  partition  of 
lands  binds  an  infant.  Bavington  v. 
Clarke,  2  Penn.  115;  Commonwealth  v. 
Hantz,  id.  333,  The  binding  effect  of 
proceedings  in  partition  in  Pennsylvania, 
where  a  purpart  is  accepted  by  the  guar- 
dian, depends  upon  statutes.  Gilbach's 
Appeal,  8  S.  &  R.  205. 

(?)  llolt,  C.  J.,  Williams  ii.  Harrison, 
Carth.  161  ;  Crosse  v.  Androes,  1  Rol. 
Abr.  2,  D.  pi.  3. 

(a)  Cunninghams.  Knight,  1  Barb.  399. 


CH.  XVI.]  INFANTS.  *264 


SECTION    IV. 

OF   THE   TORTS    OF   AN   INFANT. 

An  infant  is  protected  against  his  contracts,  but  not  against 
his  frauds  or  other  torts,  (j)  But  his  promissory  note  given 
as  a  compensation  for  his  torts  is  not  binding,  (jj)  If  such 
tort  or  fraud  consists  in  the  breach  of  his  contract,  then  he  is  not 
liable  therefor  in  an  action  sounding  in  tort,  because  this  would 
make  him  liable  for  his  contract  merely  by  a  change  in  the  form 
of  the  action,  which  the  law  does  not  permit.  (A')  But  where 
the  tort,  though  connected  by  circumstances  with  the  contract, 
is  still  distinguishable  from  it,  there  he  is  liable.  As  if  he  hires 
a  horse  for  an  unnecessary  ride  he  is  not  liable  for  the  hire ;  but 
if  in  the  course  of  the  ride  he  wilfully  abuses  and  injures  the 
horse,  he  is  liable  for  the  tort.  {!)  And  *if  he  should  sell  the 
horse,  trover  would  lie,  nor  would  his  infancy  be  a  good  de- 
fence. Nor  need  this  tort  or  fraud  be  subsequent  to  the  con- 
tract. Thus,  in  the  case  of  a  bond  given  by  an  infant  and 
received  by  the  obligee  in  reliance  upon  his  false  and  fraudulent 
representations  of  his  being  of  full  age,  the  bond  cannot  be  en- 
forced against  him.  (m)   But  as  soon  as  the  infant  makes  and  de- 

(/)  See  Stone  v.  Witliipool,  Latcli,  21  ;  Wcml.  399;  Jennings  v.   Ruiulall,   8  T. 

Bullock  )'.  Babcock,3  Wcnd..391  ;  Hanks  li.  337. 

V.  Deal,  3  McCord,  257;  Green  r.  Spcrrv,  {/)  Campl)cll  v.  Stakes,  2  Wend.  137. 

16   Venn.  390;  Lewis   v.  Littlefield,  15  And  so  lie  will  be  liable  in  trover  if  he 

Maine,  233;  Harttield  r.  Roper,  21  Wend,  drive  the  horse  fiirtiicr,  or  on  a  different 

fil.),  G20  ;  iJrown  v.  Maxwell,  6  Hill,  592,  ronte,  from  that  for  which  he  has  engafred 

594;     Homer  v.  Thwinji,  3    I'ick.  492;  him.     Homer  r.    Thwin?,   3  Tick.    492. 

School    Dist.   V.  Bra<.nlon,  3  Fo.st.   516;  Approved  in  Green  c   SpeiTV.  16    Vcrni. 

"Walker  v.    Davis,    1    Gray,  506.      He  is  390;    Towno,  r.    Wiley,  23"  Verm.    353. 

even  liable  for  his  toits,  thout^h  he  act  by  And  see  Vasse  v.  Smith,  6  Cranch,  226. 

his    father's    command.      Iliimjihi-ey    r.  But  see  Wilt  i'.  Welsh,  6  Watts,  9  ;  I'en- 

Douijlass,  10   Venn.  71  ;  or  through  the  rose    r.    Curran,   3   Kawle,  351  ;   1    Am. 

af,'cncy  of  a  third  person.     Sikes  v.  John-  Lead.  Cases,  lis,  119,  (1st  ed.)  ;   10  Am. 

son,  16  Mass.  389.  Jur.  98;  11  id.  69  ;  20  id.  264. 

(//)  Hanks  c.  Deal,  3  McCord,  257.  (hi)  Conroe  t,-.  Birdsall,    1  Johns.   Cas. 

(1-)  See  West  v.  Moore,  14  Verm.  447;  127  ;  Brown  ;•.  McCune,  5   Sandf.   224. 

Brown  v.   Durham,    1   Koot,    273  ;    and  Neither  will  Ids  warrant  of  attorney   to 

Morrill  r.   Aden,    19    Verm.  R.  505,  that  confess  jud^rment  bind  him,  and  tlic  court 

infancy    is    a   bar    to    an  a<'tion    founded  cannot    make    it    good,    althon<xh    tlierc 

on     a    false    and    fraudulent    warranty,  be   fraud   in    tlie    infant.     Saundorson   r. 

But  contra,    Word  v.    Vance,   1    Nott  &  Marr,  1  H.  Bl.  75.     See  also,  Burley  i-. 

McCord,  197;  Peijine  r.  Sutclitfe,  4  Me-  Russell,   10  New   Hamp.   184;  StoolVoos 

Cord,  387;  The  People   v.  Kendall,  25  r.  Jenkins,  12  S.  &  R.  399. 

[275] 


265* 


THE   LAW    OF   CONTRACTS. 


[book  1. 


I 


livers  it  he  is  guilty  of  a  fraud,  for  which  an  action  may  at  once  be 
maintained  for  any  loss  sustained,  (w)  *As  long  as  the  bond  runs, 
it  is  not  clear  that  he  will  not  pay  it ;  and  this  uncertainty  should 


(n)  Fitts  I'.  Hall,  9  New  Hamp.  441  ; 
(oveiTiilini;'  Johnson  v.  Pie,  1  Lev.  169, 
contra;)  Com.  Dig.  Action  on  the  Case 
for  Deceit,  A.  10;  2  Kent's  Com.  241, 
note  c.  ;  Reeves's  Dom.  llel.  259.  — And 
in  Wallace  v.  Morss,  5  Hill,  391,  an  in- 
fant who  had  fraiulnlently  obtained  goods 
upon  credit,  not  intending  to  ])ay  for 
them,  was  held  lialile  in  an  action  for  the 
tort.     But  see  contra,  Brown  v.  McCune, 

5  Sandf.  224;    Price  r.  Hewett,  18  E.  L. 

6  E.  522.  The  case  of  Eitts  v.  Hall, 
supra,  is  decidedly  condemned  in  1  Am. 
Lead.  Cas.  pp.  117, 118,  where  the  learned 
editors  say  :  "  This  decision,  which  di- 
rectly ovei-rules  Johnson  v.  Pie,  1  Levinz, 
169,  is  clearly  unsound ;  the  representation 
b}"^  itself  was  not  actionable,  for  it  was  not 
an  injury;  and  the  avoidance  of  the  contract, 
which  alone  made  it  so,  was  the  exercise  of 
a  perfect  legal  right  on  the  part  of  the  infant. 
The  contract,  in  such  a  case  as  Eitts  v.  Hall, 
forms  an  essential  part  of  the  right  of 
action,  and  no  liability  growing  out  of 
contract  can  be  asserted  against  an  infant. 
The  test  of  an  action  against  an  infant  is, 
whether  a  liability  can  be  made  out  with- 
out taking  notice  of  the  contract.  It  is 
admitted,  in  the  same  court,  that  such  an 
affirmation  as  in  Eitts  v.  Hall  does  not 
estop  the  infant  so  as  to  render  him  lia- 
ble on  the  contract;  which  implies  that 
the  avoidance  of  a  contract  induced  by 
such  a  representation  is  not  &  fraud."  In 
the  case  referred  to,  Parker,  C.  J.,  says  : 
"But  Johnson  v.  Pie,  1   Lev.   169,  was 

'  case,  for  that  the  defendant,  being  an  in- 
fant, affirmed  himself  to  be  of  full  age,  and 
by  means  thereof  the  plaintiff  lent  him 
ilOO,  and  so  he  had  cheated  the  plaintiif 
by  this  false  affirmation.'  .After  verdict 
for  the  plaintiff,  it  was  moved  in  arrest  of 
judgment  that  the  action  would  not  lie  for 
this  false  affirmation,  but  the  plaintitf 
ought  to  have  informed  himself  by  others. 
'  Kelynge  and  Wyndham  held,  that  the 
action  did  not  lie,  because  the  affirmation, 
being  by  an  infant,  was  void ;  and  it  is 
not  like  to  trespass,  felony,  &c.,  for  there 
is  a  fact  done.  Twysden  doubted,  for 
that  infants  are  chargeable  for  trespasses. 
Dyer,  105  ;  and  so,  if  he  cheat  with  false 
dice,  &c.'  The  report  in  Levinz  states  that 
the  case  was  adjourned ;  but  in  a  note,  re- 

[276] 


ferring  to  1  Keb.  905,  913,  it  is  stated  that 
judgment  was  arrested.  If  this  case  be 
sound,  the  present  action  cannot  be  sus- 
tained on  the  first  count.  Erom  a  refer- 
ence in  the  margin,  it  seems  that  the  same 
case  is  re])ortcd,  1  Sid.  258.  Chief  Baron 
Comyns,  however,  who  is  himself  regarded 
as  high  authority,  seems  to  have  taken  no 
notice  of  this  case  in  his  digest,  '  Action 
on  the  case  for  Deceit,'  but  lays  down  the 
rule  that  '  if  a  man  affirms  himself  of  full 
age  when  he  is  an  infant,  and  thereby  pro- 
cures money,  to  be  lent  to  him  upon  mort- 
gage,' he  is  liable  for  the  deceit ;  for  which 
he  cites  1  Sid.  183;  Com.  Dig.  Action, 
&c.  A.  10.  We  are  of  opinion  that  this  is 
the  true  princijile.  If  infancy  is  not  per- 
mitted to  protect  fraudulent  acts,  and  in- 
fants are  liable  in  actions  ex  delicto,  whether 
founded  on  positive  wrongs,  or  construc- 
tive torts,  or  frauds,  (2  Kent,  197,)  as  for 
slander,  (Noy's  Rep.  129,  Hodsman  v. 
Grissel,)  and  goods  converted,  (auth.  ante,) 
there  is  no  sound  reason  that  occurs  to  us 
why  an  infant  should  not  be  chargeable 
in  damages  for  a  fraudulent  misrepresen- 
tation, whereby  another  has  received  dam- 
age." But  it  is  believed  that  the  true 
ground  of  the  decision  in  Eitts  v.  Hall  was 
mistaken  in  the  Am.  Lead.  Cases,  the 
learned  authors  being  misled  perhaps  by 
the  marginal  note,  in  which  it  is  said  that 
"  An  infant  is  answerable  for  a  fraudulent 
representation  and  deceit,  which  is  not 
connected  with  the  subject-matter  of  a 
contract,  but  by  which  the  other  party  is 
induced  to  enter  into  one  with  him,  ifhe 
a/iericards  avoids  the  contract  by  reason  of 
Iiis  infdnci/."  Such  may  have  been  the 
case  before  the  court ;  but  the  principle  to 
be  deduced  from  the  decison  is  that 
a  fraudulent  misrepresentation,  whereby 
money  or  goods  are  obtained  by  an  in- 
fant, is  itself  an  actionable  injury.  It  is 
stated  in  Bac.  Abr.  Infancy  &  Age,  (I.) 
3  :  "  If  an  infant  without  any  contract, 
wilfully  takes  away  the  goods  of  another, 
trover  lies  against  him.  Also  it  is  said, 
that  if  he  take  the  goods  under  pretence 
that  he  is  of  full  age,  trover  lies,  because 
it  is  a  wilfnl  and  fraudulent  trespass."  So 
an  infant  is  liable  for  a  fraudulent  execu- 
tion of  a  trust  confided  to  liim.  Loop  v. 
Loop,  1  Verm.  177. 


• 


CH.    XVI.]  INFANTS.  *266 

perhaps  reduce  the  damages  to  a  nominal  amount.  But  when  he 
refuses  to  pay,  and  avoids  the  bond,  by  this  refusal  he  gives  no 
new  cause  of  action,  but  now  in  the  action  grounded  upon  the 
original  tort,  full  damages  may  be  given.  It  might  be  held,  how- 
ever, that  before  any  action  could  be  maintained  for  the  fraud 
in  making  such  a  bond,  either  he  must  have  refused  payment, 
or  else  the  bond  should  be  returned  to  him  ;  and  then  the  plain- 
tiff would  be  entitled  to  recover  the  full  amount  of  the  bond. 
And  if  goods  were  sold  to  an  infant  in  reliance  upon  his  fraud- 
ulent representations  that  he  was  of  full  age,  the  seller  may 
reclaim  them,  certainly  on  his  refusal  to  pay,  if  not  before,  on 
the  ground  that  he  had  never  parted  with  his  property,  (o) 

When  goods  not  necessaries  are  sold  to  an  infant,  without 
fraudulent  representations  by  him,  with  a  knowledge  by  the 
seller  of  his  infancy,  and  the  infant  refuses  to  pay  for  them,  and 
also  refuses  to  return  the  goods,  although  they  are  within  *his 
possession  and  control,  some  question  exists  as  to  the  rights  of 
the  seller.  Some  authorities  support  the  doctrine  that  he  is 
remediless,  regarding  the  incapacity  of  the  infant  as  his  privi- 
lege and  his  defence.  But  it  seems  unreasonable  and  unjust  to 
say  that  the  infant  may  refuse  to  pay  for  the  goods,  without 
affecting  the  validity  of  the  sale  to  him.  It  should  seem 
enough  if  the  infant  has  the  power  of  rescinding  the  sale.  This 
is  an  adequate  protection  ;  and  if  the  goods  are  out  of  his  pos- 
session when  the  sale  is  rescinded,  the  seller  may  be  wholly 
without  remedy.  But  when  the  sale  is  rescinded,  the  property 
in  the  goods  should  revest  in  the  seller,  so  far,  at  least,  that  if 
he  finds  them  in  the  possession  of  the  infant,  he  may  peaceably 
retake  them  as  his  own.  And  if  he  demands  them,  the  refusal 
of  the  infant  to  deliver  them  would  seem  to  be  a  tort  whollv 


(o)  Badger  v.  Phinncy,  15  Mass.  359;  &  Sraalc,  90,  it  was  held  that  m  the  ab- 
Mills  I'.  Graham,  4  B.  &  P.  140,  Per  sence  of  any  positive  misrepresentation,  the 
Mansfield,  C.  J.  ;  Fui-nes  v.  Smith,  1  Rol.  mere  omission  of  the  infant  to  disclose  his 
Abr.  530,  C.  pi.  3.  It  has  been  suggested  minority  was  not  a  sufficient  fraud  to  in- 
that  the  mere  silence  of  the  infant  as  to  his  validate  the  contract.  So  his  note  is  void- 
age,  knowing  that  the  other  party  believed  able,  jilthongh  the  payee  did  not  know  of 
him  an  adult,  would  be  a  sufficient  ground  his  infancy  and  although  he  was  carrying 
to.  enable  the  other  party  to  reclaim  the  on  trade  as  an  adult.  Van  Winkle  r. 
goods  so  parted  with.  See20  Am.  Jur.  2G5.  Ketcham,  3  Caines,  323. 
But  in  Stikeraan  v.  Dawson,  1   De  Gex 

VOL.   I.  24  [  277  ] 


267* 


THE   LAW   OF    CONTRACTS. 


[book  I. 


independent  of  the   contract,  on  which  trover  might  be  main- 
tained.    And  there  are  authorities  which  sustain  this  view,  (p) 


(p)  Judge  Reei;e  states  similar  views  in 
his  work  on  the  Domestic  Relations,  p. 
244.  He  says  :  "  But  it  seems  to  have 
been  an  opinion  among  the  elementary 
writers,  that  if  a  contract  be  performed  by 
the  adult  to  the  infant,  and  then  the  infant 
refuse  to  perform  liis  part,  and  this  con- 
tract be  rescinded  ;  that,  in  such  cases, 
the  adult  has  no  remedy  to  recover  the 
consideration  paid  to  tlie  minor.  So  that 
if  a  minor  should  contract  to  pay  au  adult 
$  50  for  a  horse,  sold  to  him  by  the  adult, 
and  then  the  minor  should  rescind  the 
contract,  that  the  adult  must  lose  his 
horse.  Or  if  a  minor  should  buy  a  horse, 
and  pay  for  him,  that  he  might  rescind 
the  contract,  and  recover  back  the  money, 
and  yet  retain  the  horse  ;  it  being  a  pre- 
sumption of  law,  as  they  say,  that  the  con- 
sideration paid  or  delivered  by  the  adult 
was  intended  as  a  present  to  the  minor. 
This  doctrine  appears  to  me  to  be  wholly 
destitute  of  principle,  and  not  supported  by 
the  authorities.  That  the  minor  has  a  right 
to  I'escind  his  contract  at  pleasure  is  not 
controverted  ;  but  when  rescinded  I  should 
suppose  that  the  contract  was  as  if  it  had 
never  been,  and  that  the  minor  could 
never  retain  when  he  had  rescinded.  I 
apprehend  it  to  be  a  sound  maxim,  and 
which  is  founded  in  the  highest  reason, 
that  an  infant,  although  he  may  always  use 
his  privilege,  as  a  shield  to  defend  himself 
against  his  own  contracts,  yet  he  shall 
never  make  use  of  it  as  an  otfensive  wea- 
pon to  injure  others.  It  is  enough  that 
an  infant  shall  have  full  power  to  set 
afloat  his  contract.  In  doing  this  he  is 
in  the  proper  use  of  his  privilege  ;  but  to 
obtain,  by  that  means,  property  from 
others,  is  a  fraud  ;  and  is  turning  his  privi- 
lege into  an  offensive  weapon,  whicli  the 
law  will  not  indulge.  It  is  true  that  the 
lawful  exercise  of  this  privilege  will  pro- 
duce the  effect  of  defrauding  others,  in 
many  cases.  As  where  an  infant  has 
bought  a  horse,  and  given  his  note  for  the 
value,  and  then  avoids  his  note  by  a  plea 
of  infanc}^ ;  and  has  sold  the  hoi'se,  spent 
the  money  received,  and  is  unable  to  pay 
the  value  of  the  horse  :  in  this  case  the 
adult  may  be  defrauded,  but  it  is  because 
the  minor  is  unable  to  pay,  or  make  him 
satisfaction.  But  how,  in  point  of  prin- 
ciple and  good  sense,  would  the  case  be, 
if  the  infant  were  in  possession  of  the  horse 
at  the  time  he  avoided  the  note  ?     Would 

[278] 


not  the  whole  contract  be  utterly  void, 
and  as  much  blotted  out  of  existence,  as 
if  it  had  never  l>ecn  ?  and  would  not  the 
horse  then  be  the  property  of  the  adult, 
the  infant  having  received  the  full  benefit 
of  his  privilege  ;  that  is,  the  privilege  of 
not  being  bound  by  his  contract  1  And 
if  the  property  of  the  horse  were  in  the 
adult,  he  might  retake  him  in  a  peaceable 
manner  prescribed  by  law,  and  might  de- 
mand him  of  the  infant ;  and  in  the  case 
of  refusal  might  bring  an  action  of  trover 
against  the  minor,  for  converting  the  horse 
to  his  own  use."  Judge  Metcalf,  in  his 
very  valuable  articles  on  the  Law  of  Con- 
tracts, in  the  American  Jurist,  says,  vol. 
20,  p.  260  :  "  But  where  the  infant  refuses 
to  ])ay  for  articles  sold  to  him,  the  other 
party  cannot  retake  the.  articles  ;  and 
where  he  has  received  money  for  property 
which  he  engaged  to  deliver  to  the  pur- 
chaser, and  afterwards  refuses  to  deliver, 
his  privilege  (as  it  is  termed)  is  his  de- 
fence. This  is  manifestly  inequitable, 
and  Judge  Reeve  therefore  zealouslj'  con- 
tends that  such  is  not  the  law.  But  the 
principles  of  the  law  of  infancy,  seem  to 
lead  to  this  result,  and  the  authorities  to 
be  too  stubborn  to  be  resisted."  We  con- 
fess that  we  think  the  views  of  Judge 
Reeve  more  consonant  with  the  principles 
of  law,  as  well  as  of  equity.  The  infant 
is  not  bound  by  his  promise  ;  but  this 
must  mean  that  the  promise  was  void,  or 
may  be  made  void,  and  when  void  it  is  as 
if  it  had  not  been  ;  and  therefore  when 
the  infant  has  defeated  the  claim  of  the 
seller  for  the  price  by  avoiding  his  prom- 
ise, there  is  an  end  of  the  contract.  We 
sec  no  sufficient  reason  for  connecting  his 
subsequent  wrongdoing,  in  refusing  to  re- 
deliver the  property  with  the  contract,  so 
as  to  say  the  owner  now  sues  substantiall}' 
for  a  breach  of  the  contract,  although 
formally,  in  tort.  He  demands,  in  fact  as 
well  as  in  form,  damages  for  the  wi-ongful 
detention  of  property  which  is  his,  because 
it  ivas  his,  and  has  never  passed  out  of 
him  but  by  a  contract  which  the  infant 
has  exercised  his  right  of  rescinding.  We 
think  the  case  of  Vasse  v.  Smith,  6  Craneh, 
226,  rests  upon  similar  princi])les.  There 
the  defendant  received  goods  as  super- 
cargo, but  disposed  of  them  in  disobedi- 
ence to  the  orders  of  the  owner,  who 
brought  trover.  The  defendant  pleaded 
and  proved  infancy,  and  the  court  below 


CH.  XVI.]  INFANTS.  *268 

At  all  events,  it  seems  to  be  admitted  that  if  the  infant  has  re- 
ceived the  goods  and  paid  for  them,  he  cannot  avoid  the  con- 
tract and  recover  the  money  paid,  without  redelivering  the 
goods,  (pp) 


SECTION    V. 

OF   THE   EFFECT    OF   AN   INFANT'S    AVOIDANCE    OF   HIS    CONTRACT. 

Every  executory  contract  may  be  avoided  by  an  infant,  and 
then  the  adult  dealing  with  him  is  relieved  from  his  part  of  the 
contract ;  as  if  the  contract  were  for  the  sale  of  a  horse  by  the 
infant,  and  the  infant  refuses  to  deliver  the  horse,  the  adult  of 
course  may  refuse  to  pay  the  price.  But  if  it  be  executed  on 
the  part  of  the  adult,  —  as,  for  instance,  by  the  payment  in  ad- 
vance for  the  horse,  —  and  the  infant  then  annuls  the  contract, 
and  refuses  to  deliver  the  horse,  the  rights  of  the  other  party 
are  not  so  certain,  (q)  If,  previous  to  the  *contract,  the  infant 
fraudulently  represented  himself  as  of  age,  we  have  seen,  that 
for  this  fraud  he  may  be  answerable.  But,  if  there  were  no 
such  representations,  it  is  not  clear  that  the  adult  party  has 
any  remedy.  He  cannot  bring  trover  for  the  horse,  for  it  was 
never  his  ;  nor  case,  unless  he  can  found  his  action  upon  a 
wrong  independent  of  the  contract ;  he  cannot  therefore  recover 
the  money  unless  on  the  ground  that  the  entire  avoidance  of 


held  it  to  be  a  sufficient  defence.    Marshall,  be  of  goods  which  came  hiwfullv  to  his 

C.  J.,   ill  delivering   the   opinion  of  the  possession."     And  see  Walker  i..  Davis, 

supreme  court,  sidd  :  —  "  This  court  is  of  1    Gray,  506.     We  tliink  that  Badger  v. 

opinion  tiiat  infancy  is  no  complete  bar  to  Phinney,  15  Mass.  359,  and  Fitts  i-.  Hall, 

an  action  of  trover,  although  the  goods  9  New  Hamp.  441,  imply  similar  princi- 

convcrted  be  in  ids  possession,  in  virtue  pies. 

of  a  previous  contract.     The  conversion  {pp)  Holmes  v.  Blogg,  8  Taunt.  503  ; 

is  still  in  its  nature  a  tort ;  it  is  not  an  act  Bailey  v.   Bamberger,  11  B.  ilon.  113  ; 

of  omission,   but  of  commission,  and   is  Smith    r.  Evans,  5  Humph.   70  ;    Cura- 

within  that  class  of  ott'ences  for  which  in-  mings  v.  Po\yelI,  8  Texas,  80.     And   see 

fancy    cannot    atVord    protection Harney  v.   Owen,  4  Blackf.  337 ;  Weeks 

This  instruction  of  the  court  (below)  must  v.   Leigliton,   5  N.   H.  343;  Medbury  v. 

have  been  founded  on  tlie  ojiinion  tliat  in-  Watrous,  7  Hill,  110. 

fancy  is  a  bar  to  an  action  of  trover  for  (7)  See  Shaw  r.  Boyd,  5  S.  &  R.  309  ; 

goods   committed   to  the  infant  under  a  Crymes  r.  Day,  1   Bailey,  320 ;  Jones  v. 

contract This   court  has  already  Todd,  2  J.  J.  Marsh.  361  ;  20  Am.  Jur. 

stated  its  opinion  to  be,  that  an  infant  is  260. 
chargeable  with  a  conversion,  although  it 

[279] 


I 


269*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

the  sale  has  left  the  infant  in  possession  of  money  that  belongs 
only  to  the  adult.  If  the  infant  disaffirms  a  sale  that  he  has 
made,  and  reclaims  the  property  he  sold,  it  seems  now  quite 
well  settled  that  he  must  return  the  purchase-money,  (r) 

If,  during  infancy,  he  has  destroyed  or  parted  with  the  prop- 
erty he  purchased  before  a  demand  was  made  upon  him  for  it 
subsequently  to  his  disaffirmance,  the  seller,  as  we  have  said,  is 
remediless  ;  but  if  he  destroys  or  disposes  of  the  property  after 
coming  of  age,  this  must  be  regarded  as  a  conffi'mation  of  the 
contract,  (s) 

If  an  infant  advances  money  on  a  voidable  contract,  which 
he  afterwards  rescinds,  he  cannot  recover  this  money  back,  be- 
cause it  is  lost  to  him  by  his  own  act,  and  the  privilege  of  in- 
fancy does  not  extend  so  far  as  to  restore  this  money,  unless  it 
was  obtained  from  him  by  fraud.  Whether  an  infant  who  has 
engaged  to  labor  for  a  certain  period,  and,  after  some  part  of  the 
work  is  performed,  rescinds  the  contract,  can  recover  for  the 
work  he  has  done,  has  been  differently  decided,  (t)  The  prin- 
ciple upon  which  the  rule  is  founded  that  forbids  the  infant's 
recovery  of  money  advanced  by  him  on  a  contract  which  he  has 
rescinded,  would  appear  to  lead  to  the  conclusion  that  he  could 
not  recover  for  the  work  he  had  done  ;  but  the  weight  of  au- 
thority, seems  to  be  the  other  way.  As  to  the  time  of  an  infant's 
disaffirmance  of  his  contract,  it  may  be  said,  in  general,  that  he 
cannot  avoid  a  sale  of  lands,  *conclusively,  until  of  full  age,  (w) 
although  he  may  enter  while  under  age,  and  take  and  hold  the 
profits,  (v)     The  disaffirmance  may  be  by  any  appropriate  legal 


(r)  Badger  v.  Phinney,  15  Mass.  363  ;  condition  as  before.  See  Dulty  i\  Brown- 
Hubbard  V.  Cummings,  1  Greenl.  13  ;  field,  1  Barr,  497  ;  Willis  v.  Twambly, 
Smith  V.  Evans,  5  Humph.  70;  Farr  d.  13  Mass.  204 ;  Nightingale  y.  Withington, 
Sumner,   12  Verm.   28.     See  also,  Taft  15  Mass.  272. 

&   Co.  V.   Pike,  14  Verm.  405.     Carr  i,'.  (s)   Cheshire    v.    Barrett,   4   McCord, 
Clough,  6  Post.  280.     Heath  v.  West,  8  241  ;  Deason  v.  Boyd,  1  Dana,  45 ;  Law- 
id.  101.     And  for  the  rule  in  chancery,  son  v.  Lovcjoj',  8  Greenl.  405. 
that  if  an  adult  files  his  bill  to  set  aside  a  {t)  See  note  ( /")  supra,  p.  *263. 
conveyance    made  when    under   age,    he  (it)  Stafford  y.  Roof,  9  Cow.  626  ;  Bool 
must  offer  to  restore  the  purchase-money,  v.  Mix,   17  Wend.  120;  Matthewson  v. 
see  Hillyer  v.  Bennett,  3  Jldwards's  Chan-  Johnson,    1    Hoffman's    Chancery,    560  ; 
eery,  222.     So  if  the  indorsee  of  an  infant  Shipman  v.  Horton,  17  Conn.  481  ;  Cum- 
payee  is  paid,  the  infant  cannot  avoid  his  mings  v.  Powell,  8  Tex.  80.     See  also, 
indorsement,  because   he   cannot  restore  aiite,  p.  243,  note  (u). 
the  maker  of  the  bill  or  note  to  the  same  (v)  Stafford  v.  Roof,  9  Cow.  626. 

[280] 


CH.   XVI.] 


INFANTS. 


'270 


process,  or  by  any  act  on  his  part  showing  conclusively  his  pur- 
pose of  annulling  the  sale.  Contracts  which  relate  only  to  the 
person  or  to  personal  property  may  be  avoided  at  any  time,  and 
by  any  act  clearly  manifesting  this  purpose,  (w)  And  this 
right  may  be  exercised  against  all  equities  of  purchasers  from 
the  grantee,  or  other  persons,  (x)  0 

An  infant  stands  on  the  same  footing  as  an  adult,  in  respect 
to  his  rights  to  reclaim  money  on  a  failure  of  consideration,  or 
because  obtained  by  fraud,  or  to  rescind  contracts  for  good 
cause. 


SECTION    VJ. 

OF  ratification;. 

As  the  liability  of  the  infant  is  defeated  by  the  law,  for  his 
protection,  therefore,  as  we  have  already  seen,  when  he  is  of 
full  age,  he  may,  if  he  pleases,  confirm  and  ratify  a  contract 
entered  into  by  him  during  infancy,  and  this  by  parol.  (//)  But, 
for  this  ratification,  a  mere  acknowledgment  that  the  debt  ex- 
isted, or  that  the  contract  was  made,  is  not  enough,  (z)  It  need 
not  be  a  precise  and  formal   promise  ;  but  it  must  be  *a  direct 


(iv)  See  supra,  note  ('()•  For  a  dictum 
contra,  sec  Boody  i'.  McKenncy,  23  Me. 
517.  See  also,  Farr  u.  Surancr,  12  Verm. 
28. 

(.r)  Myers  v.  Sanders,  7  Dana,  506  ; 
Hill  r.  Anderson,  5  S.  &  M.  216. 

{y)  In  England,  by  stat.  9  Geo.  4,  c. 
14,  §  5,  it  is  now  necessary  tliat  the  new 
promise  or  ratification  he  in  writing,  and 
signed  by  the  party  to  be  chai-gcd  thereby. 
And  any  written  instrument  signed  b3'the 
party,  whicli  in  an  adult  would  be  an 
adoption  or  ratification  of  an  act  done  by 
one  acting  as  agent,  is  sufficient.  Harris 
V.  Wall,  1  Excii.  K.  122;  Hartley  v. 
Wliarton,  11  Ad.  &  El.  934.  But  see 
Mawson  v.  Blanc,  26  E.  L.  &  E.  560. 
The  defendant  having,  whilst  an  infant, 
accepted  a  bill  of  exchange,  was  applied 
to  after  he  became  of  age  on  behalf  of  the 
holder,  and  then  wrote  to  him  as  follows  : 
"  Your  brother  tells  me  you  are  very  un- 
easy about  the  500l.  bill'drawn  by  ^Ir.  P. 
upon  me.     Pray  make  yourself  easy  about 

24* 


it,  as  I  will  take  care  that  it  is  paid,  and 
Sir  Henry  P.  comes  to  England  in  June." 
IMd,  pei-  Parke,  B.,  and  Alderson,  B., 
that  this  was  not  a  sufficient  ratifica- 
tion to  take  the  case  out  of  tiie  said 
statute  ;  and  per  Piatt,  B.,  and  Martin, 
B.,  tliat  it  was  a  suflicicnt  ratification. 
A  similar  statute  exists  in  Maine.  —  In 
Baylis  v.  Dinely,  3  M.  &  S.  477,  it  seems 
to  have  been  held  that  an  instrument 
under  seal,  executed  wliile  the  maker  was 
an  infant,  could  not  be  affirmed  hi/  parol. 
But  this  is  believed  to  be  inconsistent  witli 
true  ))rinciple  and  analogous  cases.  See 
Hoyle  V.  Stowc,  2  I)ev.  &  Batt.  320  ; 
Wlieaton  r.  East,  5  Ycrg.  41  ;  Houser  v. 
Heynohls,  1  Hayw.  143.  But  see  Gla- 
morgan V.  Lane,  9  Missouri,  446. 

(:)  Itobbins  v.  Eaton,  10  New  Hamp. 
561  ;  Thrupp  v.  Fielder,  2  Esp.  628 ; 
Ordinary  r.  Wlicrry,  1  Bailey,  28  ;  Ben- 
ham  )'.  iVishop,  9  Conn.  .3.30;  Alexander 
V.  Hutcheson,  2  Hawks,  535 ;  Ford  i'.  Phil- 
lips, 1  Pick.  203. 

[281] 


271* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


and  express  confirmation,  and  substantially^  (though  it  need  not 
be  inform,)  a  promise  to  pay  the  debt  or  fulfil  the  contract,  [a) 
It  must  be  made  with  the  deliberate  purpose  of  assuming  a 
liability  from  which  he  knows  that  he  is  discharged  bylaw,  and 
under   no  compulsion  ;  {b)    and   to  the  *party  himself  or   his 


(a)  See  Goodsell  v.  Myers,  3  Wend. 
479  ;  Rogers  lu  Hurd,  4  Day,  57  ;  Wilcox 
V.  Roath,  12  Conn.  550;  Hale  v.  Gerrish, 
8  New  Haiiip.  374  ;  Bigelow  v.  Grannis, 
2  Hill,  120  ;  Willard  v.  Hewlett,  19  Wend. 
301.  The  cases  are  well  collected  in 
Bingham  on  Infancy,  Am.  ed.  p.  69,  note. 
"  No  particular  words  seem  necessary  to  a 
ratification,  and  provided  they  import  a 
recognition  and  confirmation  of  his  prom- 
ise, they  need  not  be  a  direct  promise  to 
pay.  Whitney  v.  Dutch,  14  Mass.  460, 
Parker,  C.  J.  ;  Hale  v.  Gerrish,  8  New 
Hamp.  376  ;  as  '  I  have  not  the  money 
now,  but  when  I  return  from  my  voyage 
I  will  settle  with  you ; '  and  '  I  owe  you, 
and  will  pay  you  when  I  return,'  have 
been  held  a  sufficient  ratification.  Martin 
V.  Mayo,  10  Mass.  137  ;  also,  these  words, 
'  I  will  pay  it  (the  note)  as  soon  as  I  can 
make  it,  but  not  this  year.  I  understand 
the  holder  is  about  to  sue  it,  but  she  had 
better  not.'  Bobo  v.  Hausell,  2  Bailey, 
S.  C.  114.  So  a  ])romiso  to  endeavor  to 
procure  the  money  and  send  it  to  the 
creditor  is  sufiicient.  Whitney  v.  Dutch, 
15  Mass.  457  ;  and  where  a  minor  after 
coming  of  age  wrote  to  the  plaintiff,  '  I 
am  sorry  to  give  you  so  much  trouble  in 
calling,  but  I  am  not  prcp'ared  for  you,  but 
will  without  neglect  remit  you  in  a  short 
time,'  this  was  held  a  sufficient  ratifica- 
tion. Hartley  v.  Wharton,  11  Ad.  &  El. 
934.  See  also,  Harris  v.  Wall,  1  Exch. 
128,  Avhere  it  is  said  that  any  written  in- 
strument signed  by  the  infant,  which  in 
the  case  of  adults  would  have  amounted  to 
the  adoption  of  the  act  of  a  party  acting 
as  agent,  will,  in  the  case  of  an  infant  wjio 
has  attained  his  majority,  amount  to  a 
ratification.  A  declaration  of  an  inten- 
-tion  to  pay  a  note,  and  authorizing  an 
agent  to  take  it  up,  has  been  held  a  good 
ratification,  although  the  agent  had  done 
nothing  about  it.  Orvis  v.  Kimball,  3 
New  Hamp.  314  ;  see  further,  Best  v. 
Givens,  3  B.  Monr.  72  ;  Taft  v.  Sergeant, 
18  Barb.  320.  On  the  other  liand,  an  ad- 
mission by  an  infant  that  he  owed  the 
debt,  and  that  the  adult  ivould  get  his  pay, 
but  at  the  same  time  refusing  to  give  his 
.note,  was  considered  no  ratification  of  the 

[282] 


original  promise.  Hale  v.  Gerrish,  8  New 
Hamp.  374  ;  and  so  these  words,  '  I  owe 
the  plaintiff,  but  am  unable  to  pay  him, 
but  will  endeavor  to  get  my  brother  bound 
with  me.'  Ford  v.  Phillips,  1  Tick.  202  ; 
likewise  the  language,  'I  consider  your 
claim  as  worthy  my  attention,  but  not  my 
first  attention,'  adding  he  would  soon  give 
it  the  attention  due  it.  Wilcox  v.  Roath, 
12  Conn.  550.     And  see  Dunlap  v.  Hales, 

2  Jones  (N.  C.),  Reps.  381  ;  and  where  a 
minor  gave  his  note,  and  a  part  of  which 
he  subsequently  paid,  and  in  his  will,  made 
after  attaining  majority,  directed  the  pay- 
ment of  his  just  debts,  this  was  held  no 
ratification  as  to  the  residue  of  the  note. 
Smith  V.  Mayo,  9  Mass.  62 ;  but  see 
Wright  V.  Steele,  2  New  Hamp.  51  ;  20 
Am.  Jur.  269  ;  Merchants,  &c.  v.  Grant,  2 
Edw.  Ch.  R.  544.  And  where  a  minor 
received  money,  which  he  promised  in 
writing  to  pay  to  another  when  requested, 
and,  on  being  applied  to,  said  it  was  not 
convenient  to  \>a.y  then,  but  expressed  an 
intention  to  do  so  on  his  arrival  at  Hon- 
duras ;  this  was  held  no  ratification  of  his 
promise  to  repay,  however  otherwise  he 
might  have  been  liable.  Jackson  v.  Mayo, 
11  Mass.  147.  Neither  is  a  submission  to 
arbitration,  whether  he  is  liable  or  not,  on 
his  note,  a  ratification.    Benham  v.  Bishop, 

9  Conn.  330;  nor  is  a  partial  payment 
any  ratification  to  the  remainder.  Thrupp 
V.  Fielder,  2  Esp.  628  ;  Robbins  i'.  Eaton, 

10  New  Hamp.  561  ;  Hinely  i'.  Margaritz, 

3  Barr,  428.  If  the  ratification  is  condi- 
tional, as,  to  pay  when  able,  the  plaintiff" 
must  show  the  happening  of  the  contin- 
gency, but  not  that  the  defendant  could 
pay  icithout  inconvenience.  Thompson  v. 
Lay,  4  Pick.  48 ;  Cole  v.  Saxby,  3  Esp. 
159.  See  also  Davis  v.  Smith,  4  Esp. 
36;  Besford  v.  Saunders,  2  H.  Bl.  116; 
Martin  v.  Mayo,  10  Mass.  Rand's  ed.  141, 
n.  (c) ;  Evcrson  v.  Carpenter,  17  Wend. 
419." 

(h)  Ford  t'.  Phillips,  1  Pick.  202;  Smith 
V.  Mayo,  9  Mass.    64 ;  Curtin   v.  Patton, 

1 1  Serg.  &  Rawle,  307  ;  Harmer  v.  Kill- 
ing, 5  Esp.  102  ;  Brooke  v.  Gaily,  2  Atk. 
34 ;  Hiiiely  v.  Margaritz,  3  Barr,  428. 


CH.  XVI.J 


INFANTS. 


*272 


agent  (c)  It  may  be  conditional,  and  in  that  case  the  party- 
relying  upon  it  must  show  that  the  condition  has  been  ful- 
filled, (d)  But  it  is  perhaps  now  settled  that  a  ratification  will 
not  maintain  an  action  brought  before  such  ratification,  (e) 

The  mere  fact  that  an  infant  does  not  disaffirm  a  contract 
after  he  is  of  full  age,  is  not,  it  would  seem,  of  itself  a  confirma- 
tion ;  (ee)  but  this  fact  may  be  made  significant  by  circum- 
stances ;  if  coupled  with  a  continued  possession  and  use  of 
property,  or  a  refusal  to  redeliver  the  same,  and  an  assertion  of 
ownership,  it  may  frequently  raise  by  implication  of  law  such 
confirmation  and  a  promise  to  pay  for  the  property  ;  especially 
if  either  this  intention  and  promise  to  pay  must  be  presumed, 
or  a  fraud.  Indeed  any  act  of  ownership,  after  full  age,  may 
have  this  effect ;  but  it  mast  be  unequivocal. 

The  purchases  of  an  infant  may  be  far  more  easily  ratified 
than  his  conveyances  of  real  estate.  To  affirm  the  latter  some 
positive  act  seems  to  be  necessary,  and  mere  acquiescence,  or 
failure  to  disajffirm,  although  continued  beyond  a  reasonable 
time,  has  frequently  been  adjudged  not  sufficient  to  bind  the 
minor.  (/)     It  has  been  held  in  England  that  an  *infant's  bond 


(c)  Goodscll  r.  Myers,  3  Wend.  479  ; 
Bigelow  V.  Graiinis,  2  Hill,  120  ;  Iloit  v. 
UnrleHiill,  9  New  llainp.  436. 

(d)  Thompson  v.  Lay,  4  Pick.  48 ; 
Cole  V.  Saxliy,  3  Esp.  159.  Sec  also, 
Davics  V.  Smith,  4  Esp.  36 ;  Besford  v. 
Saunders,  2  II.  Bl.  116;  Everson  i'.  Car- 
penter, 17  Wend.  419. 

(e)  Thornton  v.  Illingworth,  2  B.  &  C. 
824;  Ford  r.  I'hillips,^  Pick.  202  ;  Thing 
V.  Lit)bey,  IG  Maine,  .55  ;  Alerriam  v.  Wil- 
kins,  6  New  Hamp.  432,  (overruling  the 
earlier  case  of  Wright  v.  Steele,  2  New 
Hamp.  51)  ;  Hale  v.  Gcrrish,  8  N.  Hamp. 
374  ;  Goodridgc  v.  Koss,  6  Met.  487. 

(ee)  Bennett's  note  to  Dublin  and 
Wieklow  Railway  Co.  v.  Bhuk,  If.  E.  L. 
&  E.  558.     But  see  post,  nott;s  (/')  and 

(/)  In  Jackson  v.  Carpenter,  11  Johns. 
539,  an  infant  conveyed  land  to  A,  in  fee 
in  tlie  military  tract,  in  1784.  Afterwards 
in  1796,  and  ten  years  after  he  became  of 
age,  he  conveyed  the  same  premises  to  B. 
A  claimed  that  the  Hrst  deed  was  only 
voidable,  and  not  void,  and  that  there  had 
been  an  acquiescence  for  so  long  a  time 


after  the  infant  arrived  at  full  age,  that  it 
amounted  to  a  confirmation  of  the  first 
convej'ance,  before  the  second  was  exe- 
cuted. But  the  court  said,  in  giving  their 
opinion  :  "  The  cases  cited  by  the  defend- 
ant's counsel,  to  this  point,  do  not  support 
it  to  the  extent  contended  for.  In  all  of 
them  it  appears  that  some  act  of  the  infant, 
after  he  is  twenty -one  years  of  age,  is  re- 
quired to  evince  his  ussent ;  they  are  only 
instances  of  purchases  made,  or  leases 
given,  rendering  a  rent  by  which  either  the 
contiimance  in  possession  or  receipt  of  the 
rent  reserved  shows  his  assent  afterwards. 
In  the  present  case,  no  act  of  the  infant 
ap[)ears  since  he  arrived  at  full  age,  by 
wliicli  this  assent  could  be  inferred,  except 
mere  omission.  He  has  possessed  no  prop- 
erty, nor  ha,s  he  received  rent.  The  con- 
firmation of  this  sale,  consequently,  can, 
in  no  point  of  view,  turn  out  to  his  advan- 
tage, nor  can  his  neglect  to  do  any  thing 
from  1784  till  1790  destroy  his  title.  It 
would  be  contrary  to  the  benign  principles 
of  the  law,  by  which  the  imbecility  and  in- 
discretion of  infants  are  protected  from  in- 
jury to  their  property,  that  a  mere  acqui- 

[283] 


273* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


could  not  be  ratified  but  by  an  instrument  of  equal  solemnity. 
But  this  has  been  dpubted  for  strong  *reasons.  (g-)  But  whether 
verbal  declarations  can,  in  any  event,  ratify  an  instrument  under 
seal,  it  is  quite  certain  that  if,  in  an  instrument  under  seal,  a 
person  recites  or  refers  to  a  former  instrument  also  under  seal, 


escence,  without  any  intermediate  or  con- 
tinued benefit,  sliowing-  liis  assent,  sliould 
operate  as  an  extinguishment  of  his  title." 
So,  in  Jackson  v.  Burciiin,  14  Johns.  124, 
an  infant  in  1784,  and  while  between 
nineteen  and  twenty  years  of  age,  con- 
veyed wild  and  unoccupied  land  in  fee, 
and  in  1 795  executed  another  conveyance 
of  the  same  premises,  not  iiaving  in  the 
mean  time  after  iiis  arrival  of  full  age 
made  any  entry  on  the  premises.  It  was 
also  proved  that  the  infant,  after  he  came 
of  age,  had  stated  to  others  that  he  had 
sold  his  land  to  [the  first  grantee].  The 
defendant  also  offered  to  prove  that  the 
'  infant,  after  he  became  of  full  age,  declined 
to  sell  the  premises  onone  occasion,  be- 
cause lie  had  previously  sold  it,  but  this 
was  overruled.  Spencer,  J.,  in  delivering 
the  opinion,  observed :  "  I  perceive  no 
evidence  of  the  affirmance  of  the  first  deed 
by  the  infant  after  he  came  of  age." 
These  cases  were  commented  upon  in 
Bool  V.  Mix,  17  Wend.  120,  and  the  court 
incline  to  the  same  general  doctrine.  So 
in  Tucker  v.  Moreland,  10  Peters,  58,  Mr. 
Justice  /Stony  observed  :  "  To  assume,  as  a 
matter  of  law,  that  a  voluntary  and  de- 
liberate recognition  by  a  person,  after  his 
arrival  at  age,  of  an  actual  conveyance  of 
his  right,  during  liis  non-age,  amounts  to 
a  confirmation  of  such  conveyance ;  or  to 
assume  that  a  mere  acquiescence  in  the 
same  conveyance,  without  objection,  for 
several  months  after  his  arrival  at  age,  is 
also  a  confirmation  of  it,  are  not  maintain- 
able. The  mere  recognition  of  the  fact 
that  a  conveyance  has  been  made,  is  not, 
per  se,  proof  of  a  confirmation  of  it."  In 
Lessee  of  Drake  v.  Ramsay,  5  Hammond, 
251,  the  court  remarked  :  "  Inouro])inion 
lapse  of  time  maij  frequently  furnish  evi- 
dence of  acquiescence,  and  thus  confirm  the 
title  [of  the  first  purchaser]  ;  but  of  itself 
it  does  not  take  away  the  right  to  avoid 
until  the  statute  of  limitations  takes  effect." 
The  same  doctrine  was  after^vards  affirmed 
in  Cresinger  v.  Lessee  of  Welch,  15  Ohio 
R.  19.3.  In  the  very  able  case  of  Doe  v.  Ab- 
ernathy,  7  Blackf  442,  it  appeared  that  a 
female  infant,  residing  in  Pennsylvania,  ex- 

[284] 


ecutcd  there  a  deed  of  bargain  and  sale  for 
land  situate  in  that  State.  She  afterwards 
married,  but  whether  before  or  after  her 
majority  did  not  appear,  nor  did  it  appear 
where,  after  the  execution  of  the  deed,  she 
and  her  husband  had  resided,  nor  that  her 
husband  had  acquiesced  in  the  deed  after 
he  knew  of  it.  Held,  that  the  lapse  of 
about  five  years  after  the  wife's  majority, 
without  any  attempt  to  disaffirm  the  con- 
veyance, did  not,  under  the  circumstances, 
prevent  the  husband  and  wife  from  disaf- 
firming it.  In  Boody  v.  McKenney,  23 
Maine,  52.3,  Sheplei/,  J.,  thus  lays  down 
the  law  on  this  subject :  "  When  a  person 
has  made  a  conveyance  of  real  estate  dur- 
ing infancy,  and  would  affirm  or  disaffirm 
it  after  he  becomes  of  age,  in  such  case  the 
mere  acquiescence  for  years  to  disaffirm  it 
affords  no  proof  of  a  ratification.  There 
must  be  some  positive  and  clear  act  per- 
formed for  that  purpose.  The  reason  is, 
that  by  his  silent  acquiescence  he  occa- 
sions no  injury  to  other  persons,  and  se- 
cures no  benefits  or  new  rights  to  himself. 
There  is  nothing  to  urge  him  as  a  duty 
towards  others  to  act  speedily.  Language 
appropriate  in  other  cases,  requiring  him 
to  act  within  a  reasonable  time,  would  be- 
come inai)propriate  here.  He  may,  there- 
fore, after  years  of  acquiescence,  by  an 
entry,  or  b}'  a  conveyance  of  the  estate  to 
another  person,  disaffirm  and  avoid  the 
conveyance  made,  during  his  infancy." 
This  point  was  discussed  in  Hoyle  v. 
Stowe,  2  Dev.  &  Batt.  320,  where  it  was 
held  that  some  act  of  affirmance  was  clear- 
ly necessary,  and  that  if  declarations  were 
sufficient,  they  must  be  cleaj  and  unequiv- 
ocal, and  made  with  a  view  to  ratification. 
In  Houser  v.  Reynolds,  1  Hayw.  143,  such 
declarations  were  held  sufiicient.  See, 
however,  Glamorgan  v.  Lane,  9  Missouri, 
446. 

(9)  Parol  ratification  was  claimed  in 
Baylis  v.  Dinely,  3  M.  &  S.  477.  But 
see,  contra,  Hoyle  v.  Stowe,  2  Dev.  & 
Batt.  320  ;  Wheaton  v.  East,  5  Ycrg.  41 ; 
Houser  v.  Reynolds,  1  HayAvard,  143 ; 
Scott  V.  Buchanan,  2  Humph.  468.  But 
see  Glamorgan  v.  Lane,  9  Missouri,  446. 


CH.  XVL] 


INFANTS. 


-273 


made  while  the  party  was  a  minor,  this  is  a  ratification  of  the 
first,  (h) 

In  some  cases  it  has  been  urged  that  even  a  silent  acqui- 
escence for  a  considerable  time  by  an  infant,  after  arriving  at 
full  age,  is  itself  a  ratification  of  his  conveyances,  (i) 


{h)  See  Story  v.  Johnson,  2  Youngc  & 
Coll.  586  ;  Boston  Bank  v.  Chambcriin, 
15  Mass.  220;  Phillips  v.  Green,  5  Mon- 
roe, 344. 

(i)  In  Kline  v.  Becbe,  6"  Conn.  494, 
where  an  infant,  having  executed  a  deed 
of  conveyance  in  1791,  at  the  age  of  eigh- 
teen years,  held  the  note  given  for  the  con- 
sideration four  years,  and  then  married  ; 
her  husl)and  held  it  until  her  death  in  1815, 
and  continued  to  hold  it  eleven  years  after- 
wards ;  and,  during  the  whole  period, 
there  was  no  act  or  expression  of  disaffirm- 
ance, and  the  grantee  was  permitted  to 
remain  in  the  undisturbed  occupation  of 
the  land,  it  was  held  that  there  was  both 
an  implied  and  a  tacit  affirmance.  Iloamer, 
C.  J.,  said :  "  The  deed  in  question  has 
been  ratified  by  every  implied  mode  of 
affirmance.  The  consideration  note  was 
held  by  V.  BoUes  a  year  after  her  annval 
at  full  age,  and  before  her  marriage,  and 
by  the  plaintiff  has  been  held  ever  since. 
During  all  this  period,  until  the  com- 
mencement of  the  ])laintiff's  action,  a 
profound  silence  was  observed  relative  to 
the  disaffirmance  of  the  contract ;  and  the 
defendant  was  permitted  to  remain  in  the 
un([uestioncd  occupation  of  the  land. 
These  acts  imjdy  an  affirmance  of  the 
deed,  not  unlike  the  holding  jiosscssion  of 
land  lea.scd  or  exchanged,  and  autliorized 
the  same  inference.  Besides,  the  omission 
to  disaffirm  alone,  for  eleven  years,  a 
period  almost  sufficient  to  give  title  by 
jiossession,  is  an  acfiuiescence  in  the  con- 
veyance amounting  to  a  tacit  affirmance." 
Tliis  case  was  cited  with  ap])robation  in 
Richardson  v.  Boriglit,  9  Verm.  368, 
where  lial/idd,  J.,  said  :  "  In  the  case  of 
every  act  of  an  infant  merely  voidable,  he 
must  disaffirm  it  on  coming  of  full  age,  or 
he  will  be  bound  by  it."  See  also, 
Holmes  r.  Blogg,  8  Taunt.  3.5,  Dallas, 
J.;  2  Kent,  Comm.  238.  —  Tlie  case  of 
Wallace  i'.  Lewis,  4  llarring.  75,  is  a 
strong  ca.sc  against  the  rigiit  of  disaffirm- 
ance. There  a  minor,  when  wanting  only 
four  months  of  his  majority,  conveyed  his 
land  in  fee  by  deed  in  proper  form,  and 
the  j)urchascr  went  iiito  ininu'diate  jios- 
session, and  greatly  imjtroved  the  premi- 


ses. The  infant,  four  years  after,  brought 
his  action  of  ejectment  against  his  own 
grantee,  to  recover  the  same  premises.  It 
was  held  that  his  silence  for  four  years 
after  he  became  of  age  was  a  waiver  of  his 
right  to  disaffinn,  and  that  he  could  not 
recover.  And  see  also  Scott  v.  Buchanan, 
11  Humph.  468.  But  see  Moore  v.  Aber- 
natby,  7  Blackf.  442.  So  in  Wheaton  v. 
East',  5  Yerg.  41,  it  was  held  that  any  act 
of  a  minor,  from  which  his  assent  to  a 
deed  executed  during  his  minority  may  be 
inferred,  will  operate  as  a  confirmation, 
and  prevent  him  thereafter  from  electing 
to  disaffirm  it.  Therefore  where  the 
minor  had  done  no  act  from  which  a  dis- 
sent or  disaffirmance  might  be  inferred, 
for  three  or  four  years  after  he  arrived  at 
twenty-one,  but  where  he  admitted  he  had 
sold  the  land,  said  he  was  satisfied,  offered 
to  exchange  other  lands  for  it,  and  saw 
the  bargainee  putting  on  improvements 
without  objection,  it  was  held  that  these 
were  sufficient  acts  froin  whicii  to  infer  a 
confirmation.  We  have  thus  fully  referred 
to  the  autliorities  on  the  subject  of  the 
ratification  of  conveyhnces,  because  there 
is,  as  will  be  seen  by  a  reference  to  the 
foregoing  cases,  not  a  little  conflict  be- 
tween them.  On  the  otlicr  liand,  as  to 
puivlinses,  the  law  is  well  settled  ;  and  if 
an  infant  retains  property  purchased, 
wiiether  real  or  personal,  and  gives  no 
notice  of  an  intention  to  disaffirm,  for  an 
unreasonable  length  of  time  after  he  ar- 
rives at  full  age,  and  especially  if  he  uses 
the  projierty,  sells  it,  or  mortgages  it,  or 
exercises  any  unequivocal  act  of  ownership 
over  it,  without  any  notice  to  the  other 
party  of  an  intention  to  disaffirm,  tliis 
is  clearly  sufficient  evidence  of  a  ratifica- 
tion. Some  of  the  leading  cases  on  this 
subject  are  Boy  den  v.  Boy  den,  9  Met. 
519  ;  Boody  i-.  McKenny,  23  Maine,  517  ; 
Hubbard  v.  Cummings,  1  Greenl.  11, 
where  this  doctrine  is  apjjlied  to  the  pur- 
chase of  real  estate.  Co.  Lift.  51,  b; 
Bobbins  v.  Eaton,  10  New  Hamp.  561  ; 
Cheshire  i'.  Barrett,  4  McConl,  241  ; 
Lawson  r.  Lovejoy,  8  Greenl.'  405  ;  (Ben- 
nett's ed.  and  note  );  Alexander  r.  Heriot, 
Bailey,    Ch.    223;    Armfield   v.  Tate,    7 

[285] 


274* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


If  any  act  of  disaffirmance  is  necessary  to  enable  an  infant 
after  attaining  his  majority  to  avoid  his  conveyance  made  while 
a  minor,  it  is  now  well  settled  that  the  execution  of  a  second 
deed,  which  is  inconsistent  with  the  former  deed,  is  itself  a  dis- 
affirmance of  the  former  deed,  although  the  infant  had  not  pre- 
viously manifested  any  intention  to  avoid  it,  and  had  made  no 
entry  upon  the  premises  conveyed.  The  old  rule,  requiring 
such  entry  before  the  infant  could  make  another  conveyance, 
has  long  since  been  done  away,  (j)  In  some  of  our  States, 
however,  a  sale  of  lands  can  be  made  only  by  one  in  possession  ; 
and  in  that  case  the  infant  should  enter  before  making  his  con- 
veyance. 

*A  question  has  been  raised  in  relation  to  ratification  by  an 


Ired.  258 ;  Kitchen  v.  Lee,  11  Paige,  107  ; 
Deason  v.  Boyd,  1  Dana,  45.  —  And 
where  an  infant,  a  few  daj's  before  he  be- 
came twenty-one,  purchased  a  note  and 
drew  an  order  on  a  third  person  for  the 
payment,  but  which  was  not  paid,  of 
which  he  liad  notice,  it  was  held  in  a  suit 
on  such  order,  several  years  afterwards, 
that  his  failure  to  return  the  note  and  dis- 
aiErm  the  contract,  after  he  became  of 
age,  warranted  the  inference  that  he  in- 
tended to  abide  by  it,  and  was  a  sufficient 
answer  to  the  defence  of  infancy.  Tho- 
masson  v.  Boyd,  13*  Ala.  419.  In  Delano 
i\  Blake,  11  Wend.  85,  where  an  infant 
took  the  note  of  a  third  person  in  pay- 
ment for  work  done,  and  retained  it  for 
eight  months  after  he  came  of  age,  and  then 
offered  to  return  it,  and  demanded  pay- 
ment for  his  work,  it  was  held,  in  an 
action  for  the  work  and  labor  perfonned 
by  him,  that  the  retaining  of  the  note  for 
such  a  length  of  time  was  a  ratification 
of  the  contract  made  during  infancy, 
especially  when,  in  the  mean  time,  the 
maker  of  the  note  had  become  insolvent, 
the  debt  lost,  and  the  ofter  to  return  made 
on  the  heel  of  that  event.  In  Aldrich  i\ 
Grimes,  10  New  Hamp.  194,  an  infant 
bought  personal  property,  with  a  right  of 
return  if  it  was  not  liked.  He  kept  it  two 
months  after  he  was  of  full  age,  and  after 
he  had  been  requested  to  return  it  if  he 
did  not  like  it.  It  was  held  a  confirma- 
tion. In  the  late  case  of  Smith  v.  Kelly, 
1-3  Met.  309,  an  infant  bought  goods  that 
were  not  ndcessaries,  and  the  sellers  three 
days  before  he  came  of  age,  brouglit  in  an 
action  against   him  for  the  price,  and  at- 

[  286] 


tached  the  goods  on  their  writ.  The 
goods  remained  in  the  hands  of  the  attach- 
ing officer  at  the  time  of  the  trial  of  the 
action,  and  the  defendant  gave  no  notice  to 
the  plaintiff's,  after  he  came  of  age,  of  his 
intention  not  to  be  bound  by  the  contract 
of  sale.  Ildd,  that  there  was  not  a  ratifi- 
cation of  the  contract  of  sale  by  the  de- 
fendant, and  that  the  action  could  not  be 
maintained.  If  an  infant  purchase  land, 
and  at  the  same  time  mortgage  it  for  the 
purchase-money,  so  that  the  whole  is  but 
one  transaction,  the  retaining  of  possession 
of  the  land  beyond  a  reasonable  time  is  a 
confirmation  of  the  mortgage,  and  any  act 
that  ratifies  the  mortgage  affirms  the 
deed.  Bigelow  v.  Kinney,  3  Verm.  353  ; 
Richardson  v.  Boright,  9  id.  368  ;  Rob- 
bins  V.  Eaton,  10  New  Hamp.  562  ;  Dana 
V.  Coombs,  6  Greenl.  89 ;  Hubbard  v. 
Cummings,  1  id.  11  ;  Lynde  v.  Budd,  2 
Paige,  191.  — Upon  the  whole  it  may  be 
said,  that  an  infant's  conveyances  are  not 
ratified  by  a  bare  recognition  of  the  exist- 
ence of,  or  a  silent  acquiescence  in  his 
deed,  for  any  period  less  than  the  period 
of  statutorj^  limitation.  See  the  cases 
alreadv  cited. 

(y)  Cresinger  v.  Welch,  15  Ohio  R. 
156  ;  Hoyle  v.  Stowe,  2  Dev.  &  Batt.  320  ; 
Tucker  v.  Moreland,  10  Peters,  58  ;  Jack- 
son V.  Carpenter,  11  Johns.  539  ;  Jackson 
r.  Burchin,  14  id.  124.  But  to  constitute 
a  disafiSrmance,  the  second  deed  nnist  be 
so  inconsistent  with  the  first  that  both 
cannot  consistently  stand.  Eagle  Fire 
Company  v.  Lent,  6  Paige,  635 ;  Bingham 
on  Infancy,  Bennett's  ed.  p.  60,  note. 


CH.  XVI.] 


INFANTS. 


»27o-*276 


infant,  whether,  if  the  contract  be  one  of  those  which  is  'de- 
clared to  be  not  voidable,  but  void,  any  ratification  could  restore 
it.  And  contracts  by  an  infant  for  purposes  of  trade  have  been 
declared  absolutely  void.  But  the  exact  distinction  between 
the  void  and  the  voidable  contracts  of  an  infant  is  rather 
obscure ;  and  the  better  opinion,  as  well  as  the  stronger  reason, 
seems  to  be,  as  we  have  already  stated,  that  in  reference  to  its 
ratification,  no  contract  is  void ;  or,  in  the  language  of  Parke, 
B.,  in  Williams  v.  Moore,  {k)  "  the  promise  of  an  infant  is  not 
void  in  any  case,  unless  the  infant  chooses  to  plead  his  in- 
fancy." (/) 


SECTION    YII 


"WHO   MAY   TAKE   ADVANTAGE   OF    AN   INFANT'S    LIABILITY. 


It  is  a  general  rule  that  the  disability  of  infancy  is  the  per- 
sonal privilege  of  the  infant  himself,  and  no  one  but  *himself 
or    his    legal    representatives    can    take    advantage    of  it.  (/;?). 


(/.)  11  M.  &  W.  250. 

(/)  The  words  "  void  "  and  "  voidable  " 
have  often  been  very  vaguely  used  when 
ap|)lied  to  contracts,  and  the  word  void 
has  been  frequently  used  to  denote  merely 
that  the  contract  was  not  hlndinrj,  and  as 
expressing  no  opinion  whether  such  con- 
tract might  or  might  not  be  ratified.  Thus, 
in  Conroe  v.  Birdsall,  1  Johns.  Cas.  127, 
the  marginal  note  indicates  that  the  court 
held  the  contract  "  roid,"  and  the  case  is 
so  cited  in  Mason  r.  Dcni.?on,  15  Wend. 
71  ;  and  in  2  Kent's  Comm.  241  ;  but 
the  language  of  the  court  was  :  "  The 
bond  is  vuidahk,  only  at  the  election  of  the 
infant."  So  in  Curtin  v.  Patton,  11  S.  & 
R.  311,  Mr.  Justice  Ditncnn,  s])eaking  of 
an  infant's  contract  of  suretyship,  calls  it 
in  one  place  "  absolutely  void,"  but  in  the 
very  next  line  lie  makes  use  of  such  ex- 
pressions as  "  ronjiriiiiiii;,"  "  di.'itiiirt  arts 
of  confirmation."  &c.,])lainly  showing  that, 
while  calling  the  contract  void,  he  did  not 
mean  to  deny  that  it  was  sxsrrptible  of 
ratification,  and  if  so,  tliat  it  wa.s  not  "ab- 
solutely void,"  but  only  voidable,  as  it  has 
often  been  held  by  the  same  court.  Ilinely 
V.  Margaritz,  3  JBarr,  42S.  In  a  similar 
manner,  Bayley,  J.,  in  Thornton  v.  Illing- 


worth,  2  B.  &  C.  824,  speaking  of  an  in- 
fant's contract  of  trade,  calls  it  void,  but 
the  case  clearh-  shows  that  if  the  ratifica- 
tion which  was  shown  in  the  case  had 
been  bf/ore  the  action  was  comniciiced, 
instead  of  oftrr,  the  infant  would  have 
been  bound,  a  conclusion  impossible,  iiad 
the  contract  been  really  void.  So  an  in- 
fant's acceptance  of  a  bill  of  exchange 
has  be(*n  called  "  void,"  but  it  is  only 
voidable,  and  is  susceptible  of  a  ratifica- 
tion. Gibbs  r.  Merrill,  3  Taunt.  307. 
Another  instance  occui-s  in  the  aiijilication 
of  the  word  "  void  "  to  fraudulent  con- 
tracts, but  they  arc  only  voiduhle,  and  if 
the  person  defrauded  choose  to  ratify,  he 
may  do  so,  and  hold  the  other  jiarty. 
Avers  ;•.  llewett,  19  Maine,  281.  These 
instances  are  sufiicient  to  illustrate  the 
vague  and  indefinite  use  of  the  word  void, 
and  may  perhaps  serve  to  reconcile  the 
conflicting  language  of  some  ca.ses,  and  to 
account  for  the  api>lication  of  the  word 
"  i-oid  "  to  an}'  of  an  infant's  contracts. 
See  also,  Arnold  v.  Kichmond  Iron 
Works,  1  Gray,  434,  and  ante,  p.  244, 
note  (p). 

(m)  Parker  v.  Baker,  1    Clarke's  Ch. 
136  ;    Gullett  v.  Lumberton,  I   I]ng.  R. 

[287] 


277* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


Therefore  other  parties  who  contract  with  an  infant  are  bound 
by  it,  although  it  be  voidable  by  hini.  Were  it  otherwise  this 
disability  might  be  of  no  advantage  to  him,  but  the  reverse,  (w) 
Thus,  an  infant  may  sue  an  adult  for  a  breach  of  promise  of 
marriage,  although  no  action  can  be  brought  against  an  infant 
for  that  cause,  (o)  And  an  infant  may  bring  an  action  on  a 
mercantile  contract,  though  none  can  be  brought  against 
him.  (p)  So  in  contracts  of  *apprenticeship,  or  in  cases  of  hir- 
ing and  service,  (q)  In  none  of  these  cases  can  the  adult  dis- 
charge himself  by  alleging  that  there  was  no  consideration  for 
his  promise,  on  the  ground  that  the  promise  of  the  infant  did 


(Ark.)  109;  Kose"  d.  Daniel,  3  Brev. 
438 ;  Voorhees  v.  Wait,  3  Green,  343. 
This  privilege  extends  to  the  infant's 
personal  representatives.  Smith  v.  Mayo, 
9  Mass.  62  ;  Jefford  v.  Ringgold,  6  Ala. 
544;  Marten  v.  Mayo,  10  Mass.  137; 
Hussey  y.  Jewett,  9  Mass.  100;  Jackson 
V.  Mayo,  11  Mass.  147  ;  Parsons  v.  Hill, 
8  Missouri,  135,  and  to  his  privies  in 
blood,  Bac.  Abr.  Infancy,  (I.)  6  ;  Austin 
V.  Charlestown  Female  Seminary,  8  Met. 
196.  But  not  to  his  assignees,  or  privies 
in  estate  only.  Id.  Whittingham's  case, 
8  Co.  Rep.  43  ;  Breckenridge's  Heirs  v. 
Orrasby,  1  J.  J.  Marsh.  236;  Hoyle  v. 
Stowe,"  2  Dev.  &  Batt.  323.  Nor  to  a 
guardian.  Oliver  v.  Houdlet,  13  Mass. 
•237;  Irving  v.  Crockett,  4  Bibb,  437. 
It  is  on  this  ground,  connected  witli 
others,  that  parties  to  negotiable  paper 
cannot  take  advantage  of  the  infancy  of 
any  prior  party.  Jones  v.  Darch,  4 
Price*  300 ;  Grey  v.  Cooper,  3  Doug. 
65  ;  Nightingale  v.  Withington,  15  Mass. 
272;  Taylor  v.  Croker,  4  Esp.  187; 
Dulty  V.  Brownfield,  1  Barr,  497. 

(n)  Boyden  v.  Boyden,  9  Met.  519, 
521.  Sluiw,  C.  J.  ;  McGinn  v.  Shaeffer, 
7  Watts,  412,  414. 

(o)  Hunt  V.  Peake,  5  Cow.  475  ;  Pool 
V.  Pratt,  1  D.  Chipman,  252  ;  Willard  v. 
Stone,  7  Cow.  22  ;  Holt  v.  Ward  Cla- 
rencieux,  2  Strange,  937.  And  the  infant 
may  sue  for  a  breach  of  such  promise 
without  averring  consent  of  liis  parent  or 
guardian.  Cannon  v.  Alsbury,  1  A.  K. 
Marsh.  76. 

(/j)  In  Warwick  v.  Bruce,  2  M.  &  S. 
205,  tiie  defendant,  on  the  12th  of  Octo- 
ber, agreed  to  sell  to  the  plaintiff,  a  minor, 
all  the  potatoes  then  growing  on  tliree 
acres  of  land,  at  so  much  per  acre,  to  be 

[288] 


dug  up  and  carried  away  by  plaintiff; 
and  the  plaintiff  paid  £40  to  the  defend- 
ant under  the  agreement,  and  dug  a  part, 
and  carried  away  a  part  of  those  dug,  but 
was  prevented  by  the  defendant  from 
digging  and  carrying  away  the  residue. 
It  was  held  that  the  infant  was  entitled  to 
recover  for  this  breach  of  the  agreement. 
Lord  Ellenborough,  C.  J. :  "  It  occurred 
to  me  at  the  trial,  on  the  first  view  of  the 
case,  that  as  an  infant  could  not  trade, 
and  as  this  was  an  executory  contract,  he 
could  not  maintain  an  action  for  the 
breach  of  it ;  but  if  I  had  adverted  to 
the  circumstance  of  its  being  in  part  exe- 
cuted by  the  infant,  for  he  had  paid  £40, 
and  therefore  it  was  most  immediately 
for  his  benefit  that  he  should  be  enabled 
to  sue  upon  it,  otherwise  he  might  lose 
tlie  benefit  of  such  payment,  I  should 
probalily  have  held  otherwise.  And  I 
certainly  was  under  a  mistake  in  not 
adverting  to  tlife  distinction  between  the 
case  of  an  infiint  plaintiff  or  defendant. 
If  the  defendant  had  been  the  infant, 
what  I  iiiled  would  have  been  correct ; 
but  here  the  plaintiff  is  the  infant,  and 
sues  upon  a  contract  partly  executed  by 
him,  wiiich  it  is  clear  that  he  may  do. 
It  is  certainly  for  the  benefit  of  infants, 
where  they  have  given  the  fair  value  for 
any  article  of  produce,  that  they  should 
have  the  thing  contracted  for.  And  it  is  not 
necessary  that  they  should  wait  until  they 
come  of  age  in  order  to  bring  the  action. 
A  hundred  actions  have  been  brought 
by  infants  for  breaches  of  promise  of  mar- 
riage, and  I  am  not  aware  that  this 
objection  has  ever  been  taken  since  the 
case  in  Strange." 

[q)  Eubanks  v.  Peak,  2  Bailey,  497. 


en.   XVI.]  INFANTS.  *278 

not  bind  him.  The  mutuality  or  reciprocity  of  the  contract  or 
obligation  is  not  complete,  but  it  is  sufficient  to  bind  the  party  of 
adult  age  to  his  part  of  the  contract.  But  if  a  person  of  adult 
age  marry  one  who  is  under  the  age  of  consent,  (in  males  four- 
teen, and  females  twelve  years,)  such  marriage  is  binding  upon 
neither  party  ;  and  it  is  in  the  power  of  either  to  disagree  when 
the  infant  comes  to  the  age  of  consent,  though  not  before,  (r) 
But  we  shall  speak  of  this  more  fully  when  treating  of  the 
Contract  of  Marriaije. 


SECTION    YIII. 

OF   THE   MARRIAGE    SETTLEMENTS    OF   AN   INFANT. 

The  power  of  an  infant  in  respect  to  marriage  settlements 
has  been  much  discussed.  It  seems  to  be  determined,  that  a 
marriage  settlement  upon  a  female  infant,  and  her  release  of 
dower  in  consideration  of  such  settlement,  are  valid,  (s)  But 
whether  she  can  bind  herself  by  a  settlement  of  her  own  estate 
in  contemplation  of  marriage,  seems  still  to  be  regarded  as  an 
open  question,  (l)  It  is  certain  that  a  female  infant  may  marry  ;. 
and  therefore  it  might  be  supposed  that  a  prudent  settlement 
of  her  property,  in  view  of  marriage,  would  come  within  the 
reason  of  the  rule  which  makes  valid  the  contracts  of  an  infant 
for  necessaries.  Of  course  such  a  settlement  would  be  within 
the  power  of  chancery,  for  correction  or  avoidance,  on  the 
ground  of  fraud,  mistake,  or  undue  influence,  and  any  injurious 
effect  would  be  prevented.  And  the  court  would  always  pay 
due  regard  to  the  youth  and  *immature  judgment  of  the  infant 
wufe.  But  to  say  that  a  young  woman  may  marry,  but,  be- 
cause she  is  an  infant,  cannot  use  valid  precautions  to  secure 
her  property   against  waste,  and   for   her  own   benefit,  would 

(r)  Bac.  Abr.  Iiifuncy  ami  Ape,  (A.)  seemed   to   be    in    favor   of  her    having 

(s)  Drury  v.  Drniy,  2  Eilcn,  39  ;  E;vrl  stich  power.     See  Atlierley's  Treatise  ou 

of  Bnckuighumshire    v.   Drury,  2  Eden,  Marriage  Settlements,  i)]).'28  to  45.     But 

60;    Wilmot's    Opinions,    j).    177;    Mc-  in  that  case   Lord  Eliloii   held    that   .she 

Cartee  r.  Teller,  2  Paige,  511.  was  not  so  bound  by  such  conveyance  or 

{t)  Previous  to   Milner   v.  Harcwood,  agreement  to  convey  as  that  she   might 

18   Ves.    259,   the   weight   of  authority  not  avoid  it  on  coming  of  age. 

VOL.    I.  25  [289] 


279*  THE   LAW    OF   CONTRACTS.  [bOOK   I. 

give  an  effect  to  her  legal  incapacity  entirely  opposed  to  the 
principle  that  the  disability  of  an  infant  is  a  privilege  allowed 
as  a  shield  and  a  protection,  not  as  a  burden  and  an  injury.  It 
has  therefore  been  held  that  such  settlement  is,  at  all  events, 
only  voidable,  and  that  no  one  but  herself  can  avoid  it,  and  she 
need  not ;  but  may  affirm  or  avoid  it  when  of  full  age.  The 
question  then  occurs,  whether  she  can  so  disaffirm  it  after 
majority,  if  still  married  ;  and  it  has  been  said  that  the  prepon- 
derance of  opinion  is  that  she  cannot,  (w)  So  whether  a  male 
infant  may  bind  himself  irrevocably  by  a  marriage  settlement 
of  his  own  estate  is  not  quite  certain,  (y)  It  is  not,  however, 
easy  to  find  any  very  good  reason  which  would  draw  a  distinc- 
tion between  the  sexes  in  this  particular,  and  make  such  set- 
tlement by  a  male  infant  absolutely  binding,  and  leave  that  by 
a  female  voidable  by  her  at  her  majority.  But  we  consider 
this  whole  subject  open  for  further  adjudication. 


SECTION    IX. 

infant's   liability  avith  respect  to  fixed  property  acquired 

BY    his    contract. 

It  is  of  importance  to  know  how  the  ordinary  principles 
governing  the  contracts  of  infants  are  applied  to  the  case  where 
an  interest  in  property,  of  a  Jixed  and  permanent  nature,  is  vested 
in  an  infant  by  means  of  his  contract.  Are  the  duties  attend- 
ant upon  the  occupation  of  fixed  property  separated  therefrom 
when  the  occupier  is  within  the  privilege  *of  minority  ?  Where 
the  interest  devolves  by  direct  operation  of  law,  (as  upon  mar- 
riage, or  by  descent,)  it  is  clear  that  the  duty  is  received  along 


(i()  Temple  v.  Hawlcy,  1    Sandf.  Cli.  wife's  personal  property.     And  that  both 

153.  male  and  female  infants  can  settle  their 

(v)  In  Slocombe  v.  Glubb,  2  Bro.  C.  personal    estate    before    marriage,  defini- 

C.  545,  it  seems  to  be  the  doctrine  that  tively.     See  Strickland  v.  Coker,  2  Ch. 

a  male  infant  may  bar  himself  by  cove-  Cas.    21 1  ;    and    Warburton    v.   Lytton, 

nants  before   marriage   of   his  estate  by  cited  in  Lyttou  v.  Lytton,  4  Bro.  C.  C 

courtesy,  and   of  all  right  in  or  to  his  441. 

[290] 


CH.   XVI.]  INFANTS.  280 

with  it — transit  terra  cum  onere.  (iv)  This  fundamental 
maxim  thus  undergoes  no  general  relaxation  in  favor  of  infants; 
its  operation  is  only  affected,  if  at  all,  when  that  other  maxim, 
that  an  infant's  contract  shall  never  be  his  burden,  comes  in 
conflict  with  it.  The  question  arising  here  is  undoubtedly  one 
of  no  little  difficulty  ;  but  it  has  been  so  determined  as  to  rec- 
oncile the  two  principles  without  impairing  either  of  them.  It 
is  held  that  if  one  under  age  take  a  lease,  and  enter,  and  con- 
tinue in  possession  after  claim  of  the  rent,  he,  like  any  other 
person,  (and  by  the  same  process  as  any  other  person,)  {.?•)  may 
be  compelled  to  pay  the  rent  he  has  contracted  to  pay.  [y) 
Yet  he  may,  if  he  choose,  disclaim  at  any  time,  and  thereby 
exonerate  himself;  (~)  or  at  least,  he  may  disclaim  at  any  time 
before  the  rent-day  comes,  and  have  relief  from  liability  for  the 
past  occupation,  [a)  No  necessity  obliges  him  to  put  off  his 
disclaimer  until  his  majority  ;  for  it  is  common  learning  that  an 
infant  may  avoid  matters  in  fait,  either  within  age,  or  at  full 
age,  [b)  but  matters  of  record  (for  the  reason  that  when  such 
come  in  question,  his  nonage  is  to  be  ascertained  by  inspection 
of  the  court,  and  not  by  the  country,)  must  be  avoided  during 
his  minority,  and  not  afterwards.  Yet  when  it  is  said  he  may 
avoid  during  minority,  what  is  to  be  understood  is  rather  a 
suspension  than  an  avoidance,  —  an  avoidance,  as  it  were,  only 
de  bene  esse.  Upon  arriving  at  full  age  he  may  disaffirm  that 
disalffimance,  and  revive  the  original  contract,  (c)     In  this  case 


(«■)  Leeds  fcTliirsk  Kaihvay  v.  Feam-  Michael,  5  Exeli.  114,  127  ;  witli  wliii-h 

ley,  4  Exch.  26.  com])are  Ncwry  &  Enniskillen  Railway  v. 

(x)  Per   Parke,   B.,   Ncwry  &   Ennis-  Coomhe,  3  Excli.  572,  575,  578.     In  the 

killen  Railway  r.  Coomhe,  3  Exch.  569.  former   case   the  law   is  thus  summarily 

(y)  Ni'irton,    C.    .!.,    Bottiller   v.  New-  stated  in  the  ju(l;.mient  of  the  court :  "It 

port,  21   II.  6,  31  B.,  cited  ami  approved  seems  to  us  to  he  the  sounder  principle, 

hy   P<trke,    B.,    in    North-western    Rail-  that   as  the  estate   vests,  as   it   certainly 

way  r.  McMichael,  5  Exch.    126;    Ket-  does,  the  hurden  upon  it  must  continue 

ley's   case,    Brownl.    120,    S.    C,   under  to  lie  ohli<j;atory  until   a   waiver  or  dis- 

various  names,  Cro.    Jac.  320,  2  Bulst.  ap-eement    hy  "the    infant    takes    place, 

69,  Rol.  Ahr.  Enfants,  K.  which,  if  made  after  full  ajre,  avoids  the 

(i)    North-western     Railway     v.      Mc-  estate    altoi^ether,  and    revests    it  in    the 

Michael,  5  Exch.  125.  party  from  whom  the  infant  purchased; 

(a)    Ketsey's    ca.se,  Cro.    Jac.    320;  1  if  made  within  ape,  suspends  it  only,  bc- 

Platt  on  Leases,  528,  529.  cause   such  disagreement   may   he  again 

(h)  Co.  Litt.  380  h  ;  Bac.  Ahr.  In-  recalled  when  the  infant  attains  his  ma- 
fancy  and  Age,  (I.)  5.  jority."  —  See    Bool    r.  Mix,  17  Wend. 

(c)    North-western     Railway    v.     Me-  119,' 132,  per  Z^roHvi.sw),  J. 

[291] 


280*-281* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


the  debt  incurred  by  *his  former  occupation  under  the  lease, 
and  the  recovery  of  which  he  had  jarevented  by  disavowing, 
also  revives.  Where  an  interest  vests  in  the  infant,  (as  it  ap- 
pears it  does  in  all  cases  where  he  accepts  a  lease  or  other  con- 
veyance of  land,  or  an  assignment  of  a  share  in  permanent 
stock,)  no  express  ratification  on  coming  of  age  is  requisite. 
The  interest,  being  vested,  continues  until  devested  by  repudi- 
ation, which  may  be  by  parol ;  and  his  acquiescence  after 
majority  will  be  taken,  after  a  reasonable  time,  as  a  waiver  of 
his  right  to  disclaim,  and  an  adoption,  at  mature  age,  of  the 
act  of  his  infancy,  (d)  It  seems  (though  the  point  is  still  un- 
settled), that  the  fact  that  the  rent  reserved  upon  a  lease  made 
to  an  infant  is  greater  than  the  land  is  worth,  in  no  respect 
alters  the  case ;  although  the  contract  is  now  manifestly  an 
injurious  one.  (e) 

Even  if  shares  in  a  railway  corporation,  or  other  public  com- 
pany holding  land,  are  personal  property,  (/)  the  holders  of 
such  shares,  since  they  acquire  a  vested  interest  of  a  permanent 
nature,  fill  a  position  analogous  in  this  respect  to  that  of  occu- 
piers of  real  estate  ;  and  the  infant  purchaser  of  a  share  in  such 
a  corporation  incurs  a  liability  similar  to  that  of  an  infant 
lessee.  (»-)  Thus  the  simple  plea  of  infancy  is  no  defence  to  an 
action  for  calls,  {h)  What  limits  are  to  be  *set  to  the  analogy 
is  undetermined.  It  cannot  be  said  that  the  cases  which  have 
as  yet  been  adjudicated  are  authority  for  extending  it  to  other 
than  stock  based,  like  railway  stock,  in  some  measure  upon  the 
possession  of  land. 

There  is  no  principle  of  law  (though  such  has  sometimes 


{d)  Bac.  Abr.  Infancy  and  Age,  (I.) 
8;  Com.  Dig.  Enfants,  (C.  6);  Evelyn 
V.  Chichester,  3  Burr.  1717;  Lawson  y. 
Lovejoy,  8  Greenl.  405 ;  Robbins  r. 
Eaton,  10  New  Hamp.  562.  Hohnes  v. 
Blogg,  8  Taunt.  39,  40,  per  Dallas,  J. 

(e)  Nortli-Nvestern  Railway  v.  Mc- 
Michacl,  5  Exch.  114. 

(/)  Bligh  V.  Brent,  2  Y.  &  Coll.  268; 
Bradley  yrHoldsworth,  3  M.  &  W.  422, 
424. 

(g)  In  Newry  &  Enniskillen  Railway 
V.  Coombe,  3  Exch.  577,  where  the  point 
was  discussed,  Rolfe,  B.,   indeed,  said : 

[292] 


"  I  must  say  I  doubt  whether  the  doctrine 
as  to  a  lease  granted  to  an  infant  who  en- 
joys the  land  demised  would  apply  here, 
because  this  liability  rests  entirely  in  con- 
tract, and  there  is  no  possession  of  any 
thing ;  all  that  the  party  gets  is  a  right  to 
a  portion  of  the  profits  of  the  undertak- 
ing." But  see  Leeds  &  Thirsk  Railway 
V.  Fearnley,  4  Exch.  26,  and  especially 
the  judgment  of  the  court  as  given  by 
Baron  Parke  in  North-western  Railway  v. 
McMichael,  5  Exch.  123. 

(/()  Birkenhead,  Lancashire,  &  Cheshu'e 
Railway  v.  Pilcher,  5  Exch.  121. 


CH.  xvr.] 


INFANTS. 


*282 


been  supposed  to  exist,)  placing  infants  on  the  same  footing  as 
other  persons  whenever  they  enter  into  contracts  which  owe 
their  validity,  and  the  means  of  their  enforcement,  to  slatnles. 
In  all  statutes  containing  general  words  there  is  an  implied,  or 
virtual,  exception  in  favor  of  persons  whose  disability  the 
common  law  recognizes,  (i)  Thus  where  a  company  is  incor- 
porated by  statute,  and  by  a  general  clause  all  shareholders  are 
subjected  to  certain  liabilities,  and  enjoined  certain  duties;  here 
the  same  abatement  of  the  rigor  of  the  provision  is  to  be  made 
with  regard  to  infants,  lunatics,  and  femes  covert,  which  the 
common  law  would  make  in  applying  a  common  law  rule,  (y) 
The  case  of  an  infant  whose  interest  in  his  land  or  stock  is 
acquired  by  marriage  or  descent  is  (as  we  have  seen)  quite  dif- 
ferent ;  for  his  liability  is  cast  upon  them  by  direct  operation  of 
law.  [k)  So  *where  a  minor  is  held  to  service  in  the  navy  by 
force  of  a  statute  ;  (/)  it  is  not  the  contract  of  enlistment  which 
binds  him,  but  the  statutory  duty.  In  all  cases,  "  the  only  cri- 
terion is  whether  the  liability  is  derived  from  contract."  (w)      If 


(/)  Stowell  V.  Rodi,  Plowd.  364. 

(j)  In  the  Cork  .Ji  Eaiulon  Railway  r. 
Cazcnovc,  10  Q.  B.  935,  two  of  tlic  jucfgcs, 
Lord  Dmiiuin  and  Patteson,  J.,  expressed 
the  opinion  tliat  since  by  tiie  statute  a  share- 
hohler  was  liahle  to  the  coinjiany  for  calls 
in  his  cliaracter  of  sliareholder,  tiie  fact  of 
infancy  made  no  dirtlrcnce.  The  Court 
of  Exchequer,  whicii  liad  previously  re- 
fused assent  to  this  doctrine,  (sec  IS'ewry 
Railway  v.  Coonii)e,  3  Exch.  565,  and 
Leeds  Railway  v.  Fearnlcy,  4  Exch.  26, 
32,)  thus  observed  upon  it  in  the  North- 
western Railway  v.  McMichael,  5  Exch. 
124:  "We  cannot  say  that  we  concur  in 
the  opinion  of  the  Court  of  Queen's  Bench, 
as  reported  in  11  Jur.  802,  and  10  Q.  B. 
935,  if  it  goes  to  the  full  extent  that  nU 
shareholders,  includinf;  infants,  are  by  the 
oi)eration  of  the  Railway  Acts  made  abso- 
lutely liable  to  pay  calls.  No  doubt  the 
statute  not  only  ;rave  a  more  ea.sy  remedy 
against  the  holder  of  sliarcs  by  original 
contract  with  the  company,  for  calls,  and 
also  attached  the  liability  to  pay  calls  to 
the  shares,  so  as  to  bind  all  suiiseipient 
holders ;  but  we  consider,  as  we  liave  be- 
fore said,  that  there  arc  implied  excep- 
tions in  favor  of  infants  and  lunatics  in 

25* 


statutes  containing  general  words,  (Stowel 
V.  Lord  Zouch,  Tlowd.  364,)  though  that 
depends,  of  course,  on  the  intent  of  the 
legislature  in  each  case,  (see  Wilmot's 
Notes  of  Opinions  and  Judgments,  p.  194, 
The  Earl  of  Buckinghamshire  v.  Dniry,) 
and  that  this  statute  did  not  mean,  by 
general  words,  to  deprive  infants  of  the 
|)rotcction  which  tiie  law  gave  them  against 
imjirovidcnt  bargains.  Under  this  statute, 
therefore,  our  opinion  is,  that  an  infant  is 
not  absolutely  bound,  but  is  in  the  same 
situation  as  an  infant  ac(iiiiring  real  estate, 
or  any  other  ])ermanent  interest :  he  is  not 
deprived  of  the  right  wliich  the  law  gives 
every  infant,  of  waiving  and  disagreeing 
to  a  j)urchase  which  he  lias  made  ;  and  if 
he  waives  it,  the  estate  acquii-ed  by  the 
])urch:ise  is  at  an  end,  and  with  it  his  lia- 
bility to  pay  calls,  though  the  avoidance 
may  not  have  taken  place  till  the  call  was 
due." 

(k)  Parke,  B.,  Newry  &  Enniskillen 
Railway  i\  Coombe,  3  Exch.  574  ;  Leeds 
&  Thinsk  Railway  v.  Feaniley,  4  Exch.  26. 

(/)  See  United  States  i".  Bainbridge,  1 
Mason,  71. 

(in)  Parke,  B.,  Newry  &  Enniskillen 
Railway  t;.  Coombe,  3  Exch.  569. 

[293] 


282-  THE   LAW   OF    CONTRACTS.  [bOOK  I. 

it  be  derived  from  contract  the  common  law  exceptions  apply 
to  it;  otherwise,  not. 

Respecting  the  manner  of  pleading  the  defence  of  infancy 
in  cases  where  a  liability  is  charged  on  account  of  the  occupa- 
tion of  land,  or  the  possession  of  stock,  and  of  replying  to  that 
defence,  the  following  conclusions  may  be  drawn  from  recent 
decisions  in  England.  First,  Where  2i  prima  facie  liability  ap- 
pears in  consequence  of  such  holding  of  land  or  stock,  the 
simple  plea  of  infancy  is  not  sufficient ;  the  defendant  must  also 
aver  that  the  interest  on  account  of  which  he  is  charged  came 
to  him  by  contract  and  that  he  has  disaffirmed  that  contract,  (w) 
and  if  the  disaffirmance  be  after  he  arrived  of  age  he  must  aver 
that  it  was  within  a  reasonable  time  after  becoming  of  age.  [nn) 
Second,  If  upon  the  simple  plea  of  infancy  being  put  in,  the 
plaintiff  take  issue  thereon,  and  the  defendant  obtain  a  verdict, 
the  plaintiff  is  entitled  to  judgment  non  obstante  veredicto,  (o) 
Third,  Where  infancy,  the  contract,  and  the  disaffirmance,  are 
all  pleaded,  it  is  a  good  bar ;  and  if  the  defendant  has,  upon 
coming  of  age,  reaffirmed  the  contract,  it  is  for  the  plaintiff  to 
allege  this  fact  in  his  replication,  {p)  Fourth,  Supposing  the 
law  to  be  (which,  however,  it  seems  it  is  not)  that  an  infant 
occupying  under  a  lease,  wherein  exorbitant  rent  is  reserved, 
may  defend  against  the  recovery  of  such  rent,  without  giving 
up  possession,  his  plea,  in  addition  to  the  other  requisites,  must 
distinctly  show  that  at  the  time  of  pleading  it  he  is  still  a 
minor,  [cj) 

(n)  Leeds  and  Thirsk  Railway  v.  Foam-  (o)  Birkenhead,  Lancashire,  &  Cheshire 

ley,  4  Exch.  26  ;  Cork  &  Bandon   Rail-  Railway  v.  Pilcher,  5  Exch.  121. 

way  w.  Cazenove,  10  Q.  B.  935,  11  Jur.  (p)  The  Newry  &  Enniskillen  Railway 

802.  V.  Coombe,  3  Exch.  565. 

[nn]  Dublin  &  Wicklow  Railway  Co.  (q)  North-western   Railway   v.   McMi- 

V.  Black,  16  E.  L.  &  E.  556.  chael,  5  Exch.  128. 

[294] 


CH.  XVII.]  MARRIED    AVOMEN.  283 


« 


CHAPTER  XVII. 

OF    THE    CONTRACTS    OF   MARRIED    AVOMEN. 

Sect.  I. —  Of  the  General  Effect  of  Marriage  on  the  Rig-hts  of 

the  Parties. 

At  common  law  the  disability  of  a  married  woman  is  almost 
entire.  Her  personal  existence  is  merged  for  most  purposes  in 
that  of  her  husband.  This  was  not  so  among  the  Anglo- 
Saxons,  nor  with  the  earlier  Teutonic  races  ;  and  must  be  ex- 
plained as  one  of  the  effects  of  the  feudal  system.  It  was  a 
principal  object  of  that  system  to  make  the  whole  strength  of 
the  State  available  as  a  military  force  ;  and  to  this  purpose  was 
sacrificed  much  of  the  consideration  and  respect  wliich  had 
been  formerly  paid  by  the  German  tribes  to  woman  and  her 
rights  of  property,  and  which  had  distinguished  these  tribes 
from  the  nations  of  Rome,  Greece,  and  the  East.  As  the  mar- 
ried woman  could  not  be  a  soldier,  she  was  permitted  to  have 
but  imperfect  and  qualified  rights  of  property,  because  property 
was  then  bound  to  the  State,  and  made  the  means  of  supplying 
it  with  an  armed  force.  It  is  possible  that  the  Teutonic  respect 
for  woman  was  intensified  into  the  extravagance  of  chivalry,  as 
a  kind  of  compensation.  All  was  done  for  hcf  that  could  be 
done,  in  manners  and  in  social  usages ;  because  in  law,  and  in 
reference  to  rights  of  property,  so  little  was  allowed.  Dower 
was  carefully  secured  to  her ;  but  the  exercise  of  her  own  free- 
will over  her  property  was  forbidden.  But  the  influence  of  the 
feudal  system  is  broken  ;  very  much  in  England,  and  far  more 
here.  And  among  the  effects  of  this  decay  of  a  system  in  which 
many  of  the  principles  and  forms  of  our  law  originated,  we 
count  the  changes  which  have  been  made  and  are  now  making 

[295] 


284* 


THE   LAW    OF    CONTRACTS. 


[book  I. 


in  the  law  which  defines  the  position  and  the  *rights  of  the  mar- 
ried woman.  This  law  is  in  fact,  at  this  moment,  in  a  transi- 
tion state  in  this  country.  It  seems  to  be  everywhere  conceded 
that  the  old  rules  were  oppressive  and  unjust,  and  certainly  not 
in  conformity  with  the  existing  temper  or  condition  of  society. 
Almost  everywhere  changes  are  made,  or  attempted ;  and  the 
necessity  of  change  is  not  denied.  But  in  some  parts  of  our 
country  the  slow  and  gradual  progress  of  these  changes  indi- 
cates a  belief  that  there  is  much  need  of  caution,  in  order  to 
improve  and  liberalize  the  marital  relation,  without  inflicting 
upon  it  great  injury.  We  know  that  in  those  States  in  which 
the  greatest  changes  have  been  made,  and  still  greater  are  de- 
sired by  some  persons,  there  are  those  who  think  mischief  has 
already  been  caused,  and  that  a  brief  experience  will  prove  the 
inconvenience  and  danger  of  permitting  husband  and  wife  to 
possess  interests  and  properties  and  powers,  altogether,  or  in  a 
great  degree,  independent  and  equal.  The  tendency  of  this 
would  seem  to  be,  necessarily,  to  make  them  bargainers  with 
each  other;  and  as  watchful  against  each  other,  as  careful  for 
good  security,  as  strict  in  making  terms,  and  in  compelling  an 
exact  performance  of  promises  or  conditions,  and  as  prompt  to 
seek  in  litigation  a  remedy  for  supposed  wrong,  as  seller  and 
buyer,  lender  and  borrower,  usually  are ;  and  as  these  parties 
may  be,  more  properly  and  safely,  than  husband  and  wife. 

We  place  in  a  note  at  the  end  of  this  chapter  a  synopsis  of 
the  statutory  provisions  of  the  several  States  affecting  the  law 
of  husband  and  wife  ;  but  shall  present  in  the  text  only  what 
may  still  be  regarded  as  common  law  on  this  subject,  or  as 
generally  in  force. 

We  will  first  consider  the  effect  of  marriage  upon  the  con- 
tracts made  by  the  woman  before  her  marriage,  and  then  her 
contracts  made  after  marriage. 
[296] 


CH.  XVII.]  MARRIED   WOMEN.  *2b5 


SECTION    II. 

OF   THE   CONTRACTS    OF   A    MARRIED    WOMAN   MADE   BEFORE 
MARRIAGE. 

The  contract  of  a  married  woman  made  before  her  marriage 
enures  to  the  benefit  of  her  husband  ;  but  does  not  vest  in  him 
absolutely.  It  is  a  chose  in  action,  which  he  may  reduce  to 
his  own  possession  during  her  life.  If  he  does  not  *so  reduce 
it  to  his  possession,  and  dies,  she  surviving  hirn,  it  becomes 
again  absolutely  hers,  (r)  If  she  dies  before  he  has  reduced  it 
to  possession,  he  surviving,  he  may  enforce  the  contract  as  her 
administrator,  for  his  own  benefit,  (s)  And  it  has  been  said 
that  if  he  gets  possession  of  her  choses  in  action  after  her  death, 
without  suit,  they  are  his,  by  a  title  as  perfect  as  if  he  had  re- 
ceived letters  of  administration,  (t)  And  if  administration  be 
necessary,  and  the  husband  dies  before  having  letters  of  admin- 
istration, the  right  to  take  them  goes  to  his  personal  representa- 
tives;  and  if  another  party  becomes  administrator,  he  will  be 
regarded  as  a  trustee  for  the  husband  or  his  personal  represent- 
atives, {n)  He  may  reduce  such  chose  in  action  to  his  pos- 
session by  receiving  the  money  or  other  benefit  due  from  it,  or 
by  a  new  contract,  with  the  debtor  in  substitution  for  the  wife's 
chose  in  action,  or  by  recovering  a  judgment  on  the  contract,  (v) 

(r)  Co.  Litt.  351,  b  ;  Obrian  v.  Ram,  3  (/)  Whitakerr.  Whitakcr,  6  Johns.  112. 

Mod.  186;  Estate  of  Kintzin;;er,  2  A.sh-  We  cannot  but  entertain  .«ome  doulits  of 

nieail,  45.5 ;  Lejrtr  i--  I-iejr};,  8  Ma.ss.  99  ;  this.     But  see  Lowrv  v.  Houston,  3  How. 

Gliis-ow  V.  Sands,  3    Gill  &  Johns.  96;  (Miss.)   394;   Stott 'r.  James,  3  id.  307  ; 

Stciihens  r.  Bcale,  4  Georpa,  M{)  ;   Kill-  Wade  v.  Grimes,  7  id.  425. 

crease  v.  Killcrea.se,  7  How.  (Miss.)  311  ;  (u)  And  so  if  her  husband  having  been 

Hoj;ei-s  ;•.    Humpass,   4  Ired.    Eq.   385 ;  ajipointed   administrator,   die   before   the 

Sayre  v.  Flounioy,  3  Kelly,  541.  estate  is  all  administered,  his  exeeutor  or 

(.s)  1  Kol.  Abr.  910  ;  Elliot  r.  Collier,  3  administrator  is  entitled  to  be  administra- 

Atk.   526,   1    Ves.   Sen.   15,  1  Wils.  168;  tor  rle  bonis  mm,  in  preference  to  her  next 

Donnin^'ton  r.   Mitchell,    1    (Jreen's  Ch.  of  kin.    Donninf^ton  r.  Mitchell,  1  Green's 

243;    lirown    v.    Alden,    14  B.   Monroe,  Ch.  K.  243  ;  Hendrcn  i-.  Colgin,  4  Muuf. 

144.     He  holds  the  proceeds,  however,  as  231. 

assets  for  the  payment  of  her  debts  eon-  (r)  It  seems  that  any  act  on  the  part  of 

tracted  before  marriat.a'.  —  Heard  *•.  Stam-  the  husband,  whidi  clearly  shows  an  in- 

ford,  3  1'.  Wms.  409  ;  Cas.  temp.  Talbot,  tention  to  make  the  wife'seho.se  in  action 

17.i;  2  Kent,  Com.   135;  Blennerhassett  his  own,  as  mort;4af;inp;,  releasing,  taking 

V.  Mousell,  19  Law  Times  Rej).  36.  a  new  security,  procuring  a  judgment  oa 

[297] 


286*  THE    LAW    OF   CONTRACTS.  [bOOK   I. 

Generally,  in  all  cases  where  the  right  of  action  would  survive 
to  the  *\vife,  the  husband  and  wife  must  join  in  an  action  there- 
for, (iv) 

As  all  her  beneficial  contracts  made  before  marriage  enure  to 
the  benefit  of  the  husband,  so,  on  the  other  hand,  if  she  is 
liable  for  any  debts  when  he  marries  her,  this  liability  is  cast  oh 
him  jointly  with  her,  by  the  marriage ;  [wa)  even  if  he  were  an 
infant  at  the  time  of  marriage,  (wb)  And  this  is  true,  also, 
although  the  debts  did  not  mature  and  become  payable  until 
after  the  marriage,  (ivc)  and  although  he  received  nothing  with 
her.  This,  however,  is  only  his  personal  liability,  and  does  not 
survive  him.  If,  therefore,  he  dies  before  a  debt  is  paid,  his 
estate  is  not  liable  for  it,  unless  the  debt  was  put  in  suit  and 
reduced  to  a  judgment  in  his  lifetime,  (ivd)  even  if  that  estate 
contains  or  consists  wholly  of  what  has  been  her  personal  prop- 
erty. But  her  separate  liability  revives  by  his  death,  (we) 
although  her  marriage  may  have  taken  from  her  and  given  to 
him  or  his  representatives,  all  her  means.  So  if  she  dies  before  the 
debt  is  paid  or  reduced  to  judgment,  his  liability  also  ceases,  {tvf) 
But  if  she  leaves  choses  in  action  unreduced  to  possession  by 
the  husband,  and  after  her  death  he  or  his  representative  as  her 
administrator,  reduces  them  to  possession,  as  above  stated,  the 

it,  appointing  another  as  agent  to  collect  (iv)    Morse   v.   Earl,    13    Wend.  271  ; 

the  money,  who  actnally  collects  it,  &c.,  Ramsay  v.  George,  1  M.  &  S.  176;  Hoy 

is  a  sufficient  reduction  to  possession,  and  i\    Rogers,   4    Monroe,    225  ;    Milner   v. 

bars  the  wife's  right  of  survivorship.    But  Milnes,  3  T.  R.  631. 

mere  receipt  of  interest  on  the  wife's  chose  (;;•«)  Morris  i-.  Norfolk,  1  Taunt.  212; 

in  action  is  not  a  reduction  to  possession.  Howes  i\  Bigelow,  13  Mass.  384  ;  Petkin 

Hart  V.  Stephens,   6  Q.  B.  937.     Nor  is  v.   Thompson,   13  Pick.    64  ;    Haines  v. 

the  mere  fact  that  he  joined  with  her,  in  Corliss,  4  Mass.  659  ;  Dodgson  v.  Bell,  3 

giving  a  receipt  for  the  principal,  sufficient  E.  L.  &  E.  542. 

evidence  of  a  reduction  to  possession  by  (wb)   Butler    v.  Breck,    7    Met.    164; 

the  husband.     Timbers  v.  Katz,  6  Watts  Roach  v.  Quick,  9  Wend.  238. 

&  Serg.  290.     As  to  the  question  whether  (wc)  Heard   v.    Stanford,    Cas.   terap. 

an  assignment  of  a  wife's  chose  in  action  Talb.   173,  S.   C.  3  P.  Wms.  409;  Tho- 

operates  as  a  reduction- into  possession  so  mond  v.  Earl  of  Suffolk,  1  P.  Wms.  469. 

as  to  bar  her  right  of  survivorship,  see  2  [wd)  Roll.  Abr.  351  ;  Heard  r.  Stam- 

Kent,    Com.    138,   and  notes.     Also  the  ford,  3  P.   Wms.  409  ;    Withers]30on  v. 

late  case  of  Wood  v.  Simmons,  20  Mis-  Dubose,  1  Bailey,  Eq.  166  ;  Howes  I'.Bige- 

souri,  363.    A  note  given  to  a  wife  during  low,   13  Mass.  384  ;   Chapline  v.  jNIoore, 

coverture  is  a  chose  in  action,  which  the  7    Monroe,    179;  Buckner   r.    Smyth,  4 

husband  must  reduce  to  possession,  and  Des.  371  ;  Mentz  v.  Renter,  1  Watts,  229. 

not  a  personal  cliattel  which  vests  abso-  [ice)  Woodman  r.  Chapman,  1  Camp, 

lutely  in  him.     Gaters  v.  Madeley,  6  M.  189. 

&  W.  423  ;  Hart   r.  Stephens,  6  Q.  B.  [wf)  Sec  cases  above  cited. 
937  ;  Scarpellini  v.  Atcheson,  7  Q.  B.  864. 

[298] 


CH.  rv'ii.] 


MARRIED    AVOMEX. 


-286 


proceeds  of  these  choses  in  action  must  be  applied  in  the  first 
placQ  to  any  unpaid  debts  of  hers,  and  only  the  balance  can  be 
held  by  the  husband  or  his  estate,  (u'g-) 


SECTION    III. 

OF   THE   CONTRACTS    OF   A   MARRIED    WOMAN   MADE   DURING   THE 

MARRIAGE. 

By  the  rules  of  the  common  law,  a  married  woman  has  no 
power  to  bind  herself  by  contract,  or  to  acquire  to  herself  and 
for  her  exclusive  benefit  any  right,  by  a  contract  made  with  her. 
If  she  receive  money  or  property  by  gift  to  herself  or  in  pay- 
ment for  her  services,  and  lend  it,  her  husband  and  not  she  has 
the  right  to  recover  it ;  and  so  if  she  sell  any  thing,  her  husband 
has  the  right  to  recover  the  price.  He  may  claim  the  earnings 
of  her  personal  labor,  and  only  where  she  alone  is  the  meritori- 
ous cause  of  the  debt  due  can  she  be  joined  in  an  action  for  it. 
In  general,  whatever  she  earns  she  earns  as  his  servant,  and  for 
him  ;  for  in  law,  her  time  and  her  labor,  as  well  as  her  money, 
are  his  property,  (x) 

If  A  enters  into  a  contract  with  the  wife  of  B,  not  Knowing 
her  marriage,  and  she  having  no  authority  to  bind  B,  and  not 
professing  to  act  for  him,  the  wife   is  not  bound,  neither  is  B 


(wfj)  Heard  r.  Stamfuid,  3  V.  Wms. 
409,  Cases  temp.  Tall).  173  ;  Donninpton 
r.  Mitchell,  1  Green's  N.  J.  Ch.  Kep. 
243. 

(j-)  See  Lepf?  v.  Lcpj,',  8  Mass.  99 ; 
Howes  I'.  Bif;elow,  13  Mass.  384  ;  Wins- 
low  V.  Crocker,  17  Maine,  29;  Hoskins  c. 
Miller,  2  Dov.  3G0 ;  Hyde  i\  Stone,  9 
Cow.  230;  Mori^an  v.  Thames  Bank,  14 
Conn.  99  ;  flatter  of  (irant,  2  Story,  312  ; 
Hawkins  v.  Craip,  6  Monroe,  257  ;  Mer- 
rill V.  Smith,  37  Me.  394.  And  notwith- 
standinj;  the  hushand  lives  apart  from  his 
wife,  and  in  a  state  of  continued  adultery, 
his  right  to  her  personal  pro|)crty  is  still 
the  same,  so  long  as  the  relation  of  hus- 
band ami  wife  contiimes.  Kussell  r. 
Brooke,  7  Pick.  65  ;  Turtle  v.  Muncy,  2 
J.  J.  Marsh.  82  ;  including  her  earnings 


hoth  before  and  after  marriage.  Glover  r. 
Proprietors  of  Drury  Lane,  2  Chittv,  117; 
Washburn  v.  Hale,  10  Pick.  429";  Pres- 
cott  V.  Brown,  23  Maine,  305.  In  Mes- 
senger r.  Clarke,  5  Exch.  388,  it  was  held 
that  a  husband  is  entitled  to  the  money 
wbicli  his  wife  sair.f  out  of  a  weekly 
allowance  given  by  him  for  tier  support, 
tlicy  living  separate  iiy  agreement.  It 
should  be  noted,  however,  that  Jiol/'c,  B., 
))uts  the  case  on  the  ground  that  the  wife 
had  invested  her  savings  in  stock,  (which 
stock  she  afterwards  sold  and  gave  away 
the  proceeds,)  and  he  held  that  although 
the  money  might  have  been  hers  to  dis- 
pose of  as  she  pleased,  yet  when  she 
bought  a  specific  chattel  with  a  part  of  it, 
that  chattel  became  the  husl)aud's. 

[299] 


287* 


THE  LAW    OF  CONTRACTS. 


[bOok  I. 


liable  upon  such  contract.  (i/)  But  whether  B,  *\vho  may  cer- 
tainly repudiate  the  contract,  can  elect  to  adopt  it,  and  enforce 
it  as  his  own  against  A,  may  well  be  doubted.  Upon  principle 
we  should  say  he  could  not,  because  there  is  a  total  want  of 
reciprocity  or  mutuality.  We  may  add  that  such  a  case  would 
perhaps  fall  within  the  rule,  that  no  act  is  capable  of  ratifica- 
tion by  the  principal  which  was  not  performed  by  the  agent  as 
ag-ent,  and  in  behalf  of  the  principal,  (z) 

The  wife  may  be  the  agent  of  the  husband,  and  in  that  char- 
acter make  contracts  which  bind  him;  and  this  agency  need 
not  be  expressed,  but  is  raised  by  the  law  from  a  variety  of  cir- 
cumstances. Thus,  the  purpose  and  comfort  of  married  and 
domestic  life  would  be  defeated  or  obstructed  if  the  wife  had 


(y)  In  Smith  v.  Plomer,  15  East,  607, 
it  was  held  that  a  tradesman  supplying  a 
married  woman  living  apart  from  her 
hushand  with  furniture  upon  hii'e,  does 
not  thcrehy  divest  himself  of  the  present 
right  of  property  in  such  goods,  inasmuch 
as  the  married  woman  was  incapable  of 
acquiring  it  by  any  contract ;  and  there- 
fore if  the  sheriff  take  such  goods  in  exe- 
cution, at  the  suit  of  the  husl)and's  credi- 
tor, trover  lies  l)y  the  tradesman.  But  if 
the  contract  had  been  valid,  the  goods 
being  let  to  hire  generally,  without  any 
time  limited,  notice  to  determine  the  con- 
tract given  to  the  sheriff's  officer,  and  not 
to  the  other  contracting  party,  would  not 
be  sufficient  to  determine  the  contract. 
Lord  EUeiihoronijh,  C.  J. :  "  This  case  has 
been  presented  during  parts  of  the  argu- 
ment in  different  points  of  view  from  what 
it  appeared  in  at  the  trial.  In  order  to 
maintain  trover,  the  plaintiff  must  have  a 
present  right  of  property  in  the  goods  ; 
the  first  cpiestion,  therefore  is,  whether  the 
plaintiff  had  put  the  right  of  property  out 
of  him  by  a  valid  contract  for  the  hire  of 
the  goods"  with  Mrs.  East  ?  If  tlie  contract 
were  for  a  year  it  would  put  the  property 
out  of  himfor  tliat  time;  or  if  according 
to  Mrs.  East's  evidence,  the  hiring  were 
only  general,  without  determining  either 
price  or  time,  it  would  operate  as  a  con- 
tract, for  a  reasonable  price,  so  long  as 
both  parties  pleased  ;  and  still  the  property 
would  be  out  of  him  for  the  time,  if  it 
were  a  valid  contract.  That  brings  it  to 
the  question  whether  Mrs.  East,  being  a 
married  woman,  could  make  a  valid  con- 

[300] 


tract  for  the  hire  of  the  plaintiffs  goods. 
Now  a  contract  to  be  valid  must  bind  both 
parties  ;  but  she  being  married,  it  could 
not  bind  her.  It  is  said,  however,  that  it 
would  bind  her  husband,  being  for  neces- 
saries for  her  use ;  but  I  know  of  no  case 
where  a  husband  has  been  held  liable 
upon  a  contract  of  this  sort  made  by  his 
wife  living  apart  from  him,  as  for  neces- 
saries ;  and  no  such  case  was  made  before 
the  jury.  Then  has  he  confirmed  the  con- 
tract ?  There  is  no  such  evidence.  The 
case,  therefore,  stands  upon  her  own  con- 
tract iinconfirmed,  which  is  liable  to  the 
infirmity  of  her  being  a  married  woman. 
It  was  argued,  on  the  other  hand,  that 
supposing  the  contract  was  good,  the 
notice  given  by  the  plaintiff  to  the  sheriff's 
officer  would  have  determined  it ;  but  to 
that  I  cannot  accede ;  for  to  determine  a 
contract  which  is  determinable  upon  notice, 
the  notice  should  be  brought  home  to  the 
other  contracting  party ;  and  it  is  not 
enough  that  it  should  be  given  to  one  act- 
ing adversely  under  some  supposed  deriva- 
tive title  in  the  law  from  that  ])arty.  The 
notice,  therefore,  which  was  given  to  the 
sherift"s  officer,  would  not  alter  the  case. 
The  conclusion  is,  that  tliis  action  lies, 
because  the  plaintiff  had  the  present  right 
of  property  in  him  at  the  time,  inasmuch 
as  the  married  woman,  to  whom  he  sent 
the  goods,  was  not  capable  of  contracting 
with  him  for  the  hire,  so  as  to  take  the 
property  out  of  him." 

{z)    See    "  Agents,"    ante,    Sec.   III., 
note  {tt). 


CII.  XVII.]  MARRIED   WOMEN.  *288 

not  a  general  authority  to  hire  servants,  or  to  purchase  such 
articles  as  are  necessary  for  the  use  of  the  family  ;  and  the 
necessity  is  not  to  be  a  strict  one,  but  includes  whatever  things 
are  unquestionably  proper  to  be  used  in  the  family,  and  suited 
to  the  manner  of  life  which  the  hasband  authorizes;  and  this 
even  after  her  adultery,  if  they  have  not  separated,  (a)  And 
therefore  the  law  clothes  her  with  this  authority,  (b)  So, 
whatever  she  purchases  for  herself,  the  husband  is  liable  for, 
provided  it  be  such  in  quality,  and  no  more  in  quantity,  than  is 
suitable  for  the  station  and  means  of  the  husband,  and  the 
manner  in  which  he  permits  her  to  live.  But  beyond  this  she 
has  no  such  authority;  her  contracts  for  other  things  are  wholly 
void.  Thus,  an  agreement  by  a  wife  for  the  sale  of  her  real 
estate,  with  the  assent  of  her  husband,  and  for  a  valuable  con- 
sideration, is  said  to  be  void  in  law ;  and  ecinity  has  refused  to 
enforce  it.  (c) 

In  every  case  it  is  a  question  for  the  jury,  under  the  instruc- 
tion of  the  court,  whether  articles  supplied  to  the  wife,  and  for 
which  it  is  sought  to  make  the  husband  liable  on  his  implied 
authority  to  her,  are  or  are  not  necessaries  in  this  sense ;  (d)  and 
the  husband  may  show  that  the  articles  are  not  necessaries  by 
proof  that  the  wife  had  previously  sufficiently  supplied  herself 
elsewhere,  (dd) 

An  important  fact  may  be,  the  possession  by  the  wife  of  a 

(«)  Robinson  I'.  Greinold,  1  Siilk.  119,  wife   has  no   autliority   during   her   hu.'i- 

6  Mod.  171  ;  Bac.  Ahr.  Bar.  &  F.  (II.)  hand'.'*   absence   to    l>oard   or   lodge    his 

(b)  The  wife  is  jnimn  farie.  the  Inis-  guests  at  less  than  the  usual  rates.  Web- 
band's  agent  in  managing  tlie  aflairs  of  ster  v.  MeGinnis,  ;>  Binn.  2.'3.").  And  the 
his  household.  Pickering  v.  Pickering,  6  wife  cannot  apjx'ar  and  manage  a  cause 
New  IIan»i).  124  ;  Maekinley  ".  McGregor,  at  nisi  priiis  for  iier  husliand,  although  he 
3  Whart.  3G'J  ;  Felker  v'  Kmer.-;on,  16  ii  at  the  time  in  custody  ami  cannot  ap- 
Vcrm.  653.  But  not  to  lend  his  property,  pear  himself.  Col)l>ett  r.  Hud.son,  10  E. 
Green  r.  Speny,  16  Verm.  390,  altliough  L.  &  K.  318. 

where  the  husband  was  absent  from  home,  {r.)  Lane  v.  McKccn,  15  Maine,  304. 

and  she  let   out    for  hire  her  iiusband's  (d)  Ktherington  <-.  Parrot,  Salk.   118; 

horses,  it  was  presumed  she  hail  authority  McCutchen  i;.  McGahay,  1 1  Johns.  281  ; 

so  to  do.     Church  v.  Landers,  10  Wend.  Ciiftbrd  r.  Laton,  3  C.  &  P.  15  ;  Holt  v. 

79.     But  whether  the  husband  is  at  home  Brien,  4  B.  &  Aid.  252  ;  Seaton  i\  Bene- 

or  abroad,  the  wife  is  not  presumed  to  be  diet,  5  Bing.  28  ;  Montague  v.  Espinasse, 

his  agom  gcncidlli/,  or  to  be  intrusted  with  1  V.  &  P.  356  ;  Spreadbury  v.  Chapman, 

any  other  authority  than  it  is  usual  and  8  id.  371  ;  Atkins  r.  Curwood,  7  iil.  756  ; 

customary  to  confer  upon  the  wife.     Ben-  Waithman    r.  Wakefield,   1    Camp.   120; 

jamin  r.  iienjamin,  15  Conn.  347  ;  Saw-  Furlong  r.  Hysom,  35  Maine,  333. 

yer  v.  Cuttiiig,  23  Verm.  486  ;  Leeds  r.  {d<l)  Uenaux  v.  Tcakle,  20  E.  L.  Sc  E. 

Vail,  15  Penn.  184.     Anil  an  innkeeper's  345. 

VOL.  I.  26  [  301  ] 


I 


289* 


THE   LAW    OF   COJfTRACTS. 


[book  I. 


separate  income  or  other  distinct  means  of  her  own  ;  and  it 
may  be  necessary  to  ascertain  whether  the  tradesman  supplying 
her  dealt  with  her  as  on  her  own  account,  making  charges  to  her 
alone,  and  receiving  payment  from  time  to  time  from  her  alone  ; 
for  such  facts  would  go  far  to  show  that  he  dealt  with  the  wife 
on  her  own  credit,  and  not  on  her  husband's,  (e) 

*But  if  the  articles  be  more  or  better  than  are  necessary  for 
the  wife,  still  the  husband  may  be  held,  not  upon  his  authority 
as  implied  by  the  law,  but  upon  sufHcient  evidence  of  his  ex- 
press authority  or  assent ;  and  for  this  purpose  comparatively 
slight  evidence  is  sufficient ;  and  the  mere  fact  that  he  saw  and 
knew  that  she  possessed  and  used  the  property,  or  even  that 
she  had  ordered  it  and  made  no  objection,  may  be  enough  for 
this  purpose.  (/)  For  so  long  as  the  husband  lives  with  his 
wife,  he  is  liable  to  any  extent  for  goods  which  he  distinctly 
permits  her  to  purchase.  That  the  husband  may  withhold  his 
authority,  and  is  always  saved  from  liability  by  express  notice 
and  prohibition,  is  perhaps  more  clear  by  the  earlier  authorities 
than  by  the  later.  It  was  long  since  decided  that  if  the  wife 
lives  with  the  husband,  and  he  prohibits  a  tradesman  from  sup- 
plying her  with  articles  of  dress,  he  cannot  be  made  liable  for 
them,  because,  in  the  language  of  Lord  Hale,  "  it  shall  not  be 
left  to  a  jury  to  dress  my  wife  in  what  apparel  they  think  prop- 


(e)  It  is  always  a  question  of  fact  for  the 
juiy  whether  the  tradesman  gives  credit  to 
the  wife  i'or  articles  delivered  to  her,  and 
if  the  credit  is  once  given  to  her,  the  hus- 
band will  not  be  liable,  although  the  arti- 
cles may  be  necessary,  and  although  the 
wife  lives  with  him,  and  he  sees  her  wear 
them,  without  objection.  Bently  v.  Grif- 
fin, 5  Taunt.  356 ;  Motcalf  v.  Shaw,  -3 
Camp.  22;  Stammers  i\  Macomb,  2  Wend. 
454 ;  Moses  v.  Fogartie,  2  Hill,  So.  Car. 
335;  Sheldon  v.  Pendleton,  18  Conn. 
417  ;  for  the  law  does  not  allow  a  person 
who  has  once  given  credit  to  A,  knowing 
all  the  facts,  afterwards  to  shift  his  claim 
and  charge  B.  Leggat  v.  Reed,  1  C.  & 
P.  16.  And  wherever  a  married  woman 
lives  apart  from  her  husband,  having  a 
sepai-ate  estate  and  maintenance  secured 
to  her,  there  may  be  good  ground  to  hold, 
that  all  her  debts  contracted  for  such 
maintenance,  and  in  the  course  of  her 
dealings  with  tradesmen,  are  understood 

[302] 


by  both  parties  to  be  upon  the  credit  of 
her  separate  funds  for  maintenance.  2 
Story  on  Eq.  Jur.  §  1401.  See  also, 
Owens  V.  Dickinson,  1  Craig  &  Ph.  48; 
Murray  i\  Barlee,  3  My.  &  Keen,  209  ; 
N.  A.  Coal  Co.  V.  Dyett,  7  Paige,  9  ; 
Gardner  v.  Gardner,  id.  112;  Smith  v. 
Sullivan,  11  How.  Pr.  Reps.  368. 

(/)  Waitliman  v.  Wakefield,  1  Camp. 
120.  The  mere  fact  that  the  husband 
sees  the  wife  wearing  the  goods  does  not 
vary  the  case,  if  it  be  shown  that  he  dis- 
approved of  the  conduct  of  the  wife  in 
ordering  tliem.  Atkins  v.  Curwood,  7  C. 
&  P.  756.  And  where  no  expi-ess  au- 
thority is  sliown,  the  extravagant  nature 
of  the  wife's  order  is  always  j)roper  to  be 
taken  into  consideration  by  the  jury,  as 
.showing  that  the  wife  had  no  such  authoi'- 
ity.  Lane  v.  Ironmonger,  13  M.  &  W. 
368;  Freestone  v.  Butcher,  9  C.  &  P. 
647  ;  Montague  v.  Benedict,  3  B.  &  Cr. 
631  ;  Seaton  v.  Benedict,  5  Bing.  28. 


CH.  XVII.]  MARRIED   WOMEN.  *290 

er."  (g)  And  this  doctrine  is  maintained  by  many  cases,  and 
the  rule  to  be  gathered  from  them  would  seem  to  be  that  the 
implied  authority  of  the  husband  may  always  be  rebutted  by 
proof  of  express  prohibition.  We  cannot  but  think  it  certain, 
however,  that  *this  rule  would  be  greatly  modified,  at  least  in 
this  country,  under  circumstances  which  distinctly  required 
such  modification.  As,  for  instance,  suppose  the  husband  to 
be  rich  and  penurious,  and  that  he  gave  his  wife  garments 
enough  to  prevent  her  suflfering  from  cold,  but  only  of  such 
coarse  fabric  or  materials  that  she  could  not  wear  them  in  the 
street;  or  that  from  bad  temper  or  cruelty  he  gave  her  no  cloth- 
ing, so  that  for  decency's  sake  she  was  obliged  to  remain 
always  in  her  chamber,  and  even  there  sufiered  from  cold;  we 
cannot  doubt  that  the  husband  would  be  held  liable  in  such 
cases,  the  law  resting  his  liability,  if  necessary,  upon  an  abso- 
lute presumption  of  his  authority  ;  as  has  been  held  in  the  case 
of  his  turning  her  out  of  doors  without  her  fault.  And  the 
reason  and  justice  of  the  rule  would  be  fully  satisfied  if  the 
husband,  living  with  his  wife,  were  held  answerable  for  neces- 
saries supplied  to  her,  with  or  without  notice  of  prohibition ; 
but  where  there  was  express  prohibition,  then  the  jury  should 
be  instructed  that  the  word  "  necessaries  "  should  be  construed 
very  strictly.  It  is  said:  "  The  law  will  not  presume  so  much 
ill  as  that  a  husband  should  not  provide  for  his  wife's  neces- 
sities." (/i)  This  should  not  be  presumed;  but  when  it  is 
proved,  the  law  will  not  do  so  much  ill  as  to  leave  her  without 
necessaries.  The  later  authorities  seem  indeed  to  change,  and 
as  we  think  materially  for  the  better,  the  ground  upon  which 
the  liability  of  the  husband  for  necessaries  furnished  to  the  wife 
has  hitherto  rested.  Generally,  at  least,  it  has  been  put  upon 
her  agency  and  his  authority.  Undoubtedly  this  has  been 
stretched  very  far,  and  authority  to  contract  for  the  husband 
sometimes  imj)lied  from  circumstances  which  not  only  suggest 
no  rational  probability  of  any  such  authority,  but  seem  to  be 
strongly  opposed  to  this  supposition ;  it  sometimes  appears  to 

(<7)  Mimby  v.  Scott,  1   Sid.  122;  B:ic.     Bolton  r.  Prentice,  Str.  1214;  Rcnaiix  v. 
.Abr.    Bar.    &    F.    (H)  ;    Etlicrin^iton    v.     Tcaklc.  20  E.  L.  &  K.  345. 
Parrot,  2  Ld.  Raviii.   1006,1    Salk.   118;       (//)  Ld. //«/<■,  in  Manl.y  r.  Scott,  lSid.109. 

[  303  ] 


29r 


THE   LAW   OF   CONTRACTS, 


[book  I. 


be  a  legal  supposition,  not  only  without  fact,  but  opposed  to 
fact.  It  seems,  indeed,  absurd  to  say  that  a  man  who  has 
driven  his  wife  from  his  house  and  his  presence,  and  manifested 
by  extreme  cruelty  his  utter  hatred  of  her,  was  all  the  time  con- 
stituting her  his  agent,  and  investing  her  with  authority  to  bind 
him  and  his  *property.  And  if  we  suppose  the  case,  where  a 
wife  perfectly  incapacitated  by  infirmity  of  body  or  mind  from 
making  any  contract  at  all,  is  supplied  with  necessaries  by  one 
who  finds  her  driven  from  home  and  ready  to  perish,  and  who 
now  comes  to  her  husband  for  indemnity,  we  cannot  doubt  that 
he  would  recover.  But  the  proposition  would  seem  too  absurd 
even  to  take  its  place  among  the  fictions  of  the  law,  that  the 
wife,  when  she  received  this  aid,  promised  in  the  husband's 
name  that  he  would  pay  for  it,  and  that  he  had  given  her  a  suf- 
ficient authority  to  make  this  promise  for  him.  For  these  and 
other  reasons  courts  now  show  a  tendency  to  rest  the  responsi- 
bility of  the  husband  for  necessaries  supplied  to  the  wife,  on 
the  duty  which  grows  out  of  the  marital  relation.  He  is  her 
husband ;  he  is  the  stronger,  she  the  weaker ;  all  that  she  has  is 
his  ;  the  act  of  marriage  destroys  her  capacity  to  pay  for  a  loaf 
with  her  own  money ;  and  as  all  she  then  possesses,  and  all  she 
may  afterwards  acquire,  are  his  during  life  and  marriage,  upon 
him  must  rest,  with  equal  fulness,  if  the  law  would  not  be  the 
absolute  opposite  of  justice,  the  duty  of  maintaining  her  and 
supplying  all  her  wants  according  to  his  ability.  And  we  think 
this  plain  rule  of  common  sense  and  common  morality  is  be- 
'Coming  a  rule  of  the  common  law.  (i) 


(i)  In  Read  v.  Legard,  4  E.  L.'&  E. 
323,  the  husband  was  a  lunatic,  confined 
in  an  asylum  as  dangerous  ;  and  the  plain- 
tiff had  supplied  the  wife  with  necessaries. 
ffill,  of  counsel,  says,  arcjneiido :  "  Not 
only  has  it  never  hcen  decided  judicially 
that  hy  the  mere  fiict  of  man-iage  a  man 
•confers  on  his  wife  an  irrevocable  authority 
to  hind  his  credit,  but  every  thing  tends  to 
show  that  her  right  so  to  do  is  derived  from 
some  act,  real  or  supi)0sed,  of  the  husband, 
•done  after  the  marriage,  and  which  he  must 
he  in  a  condition  to  persist  in  or  revoke." 
Pollock,  C.  B.,  said  :  "  This  rule  must  be 
■discharged.  The  question  raised  by  it  is, 
■whether   an    action   can    be    maintained 

[304] 


against  a  defendant,  who  has  been  a 
lunatic,  for  things  supplied  for  the  neces- 
sary support  of  his  wife  during  the  lunacy. 
It  ai)pears  to  me  that  the  defendant 
is  liable  in  such  an  action.  The  action  is 
founded  on  this,  that  the  defendant  has 
taken  on  him  a  duty  —  having  contracted 
marriage  with  the  person  sustained  In-  the 
plaintiff,  he  has  thereby  become  in  point 
of  law  liable  for  her  maintenance,  and  if 
he  fails  to  provide  for  that  maintenance, 
except  under  certain  circumstances  which 
justify  him  in  withholding  it,  she  has  au- 
thority to  pledge  his  credit  to  procure  it. 
It  may  be  true  as  stated  by  Mr.  Hill,  that 
no  case  has  yet  arisen  in  which  this  pre- 


CH.  XYII.J 


MARRIED    WOMEN. 


'^292-*293 


*If  a  married  woman  carries  on  trade,  and  her  husband  lives 
with  her  and  receives  the  profits,  or  they  are  applied  to  the 
maintenance  of  the  family,  the  law  presumes  that  she  was  his 
agent  in  this  trade,  and  had  his  authority  to  make  the  necessary 
purchases,  (j)  So  an  authority  may  be  presumed  from  habitual 
acts  of  agency,  or  from  confirmation,  which  may  be  express  or 
implied,  as  where  a  wife  was  in  the  habit  of  drawing,  indorsing, 
accepting,  or  paying  bills  and  notes  for  her  husband,  and  this 
he  knew  and  sanctioned,  his  authority  to  her  will  be  pre- 
sumed. (^')     Or  if  such  bills  *and  notes  are  usually  a  part  of  a 


cise  point  was  bi-oufjht  before  any  court ; 
but,  on  the  otlier  h;iiid,  none  of  the  dirfa 
tliat  oecur  in  any  of  the  ciises  cited  furnish 
ii  clew  to  decide  the  present  one  adversely 
to  the  phiintiff."  Alderson,  B.,  in  the 
course  of  the  trial,  had  said  :  "  It  is  a 
monstrous  proposition,  that  a  man  wlio 
drives  a  woman  out  of  doors,  who  liates, 
who  al)ominates  lier,  actually  gives  her 
authority  to  make  contracts  for  iiim." 
He  and  Plait,  and  Martin,  BB.,  agreed 
with  Polkxk;  C.  B.  Maiiin,  B.,  said: 
"  My  brother  Alderson  has  stated  the  real 
truth  respecting  tiie  ol)ligation  of  the  de- 
fendant and  the  ])rinciple  of  his  liability  ; 
namely,  that  by  contracting  the  relation  of 
maniagc,  a  husband  takes  on  him  the 
duty  of  supplying  his  wife  witli  neces- 
saries ;  and  if  he  does  not  perform  that 
duty,  either  through  his  own  fault,  or  in 
eonscfiuence  of  a  misfortune  of  tiiis  kind, 
the  wife  has  in  consequence  of  that  relation 
a  right  to  ])rovidc  herself  with  them,  and 
tlie  husband  is  R'sponsiide  for  them.  And 
although  in  the  declaration  the  debt  sued 
on  is  alleged  to  i)e  tiie  debt  of  the  defend- 
ant contracted  at  his  recpiest,  the  truth  is 
that  it  is  the  wife  who  contracts  the  debt, 
while  the  husband  is  responsible  for  it." 
See  also,  Montague  r.  Benedict,  3  B.  & 
Cr.  631,  and  Seaton  r.  Benedict,  5  Bing. 
28.  (In  these  very  interesting  ca.scs  on 
tiio  liability  of  the  husband  for  goods  fur- 
nished to  the  wife,  Mr.  Sniitli,  in  his  work 
on  Contracts,  p.  280,  says  the  name  of  the 
defendant  is  fictitious,  and  borrowed  froin 
Shakspcare's  Much  Ado  about  Nothing, 
the  defendant  being  actually  "  a  iiighly 
respectable  professional  gentleman,"  whose 
name  is  not  given.)  A  similar  doctrine 
was  laid  down  in  Shaw  r.  Thompson,  16 
Pick.  1I»8,  (18;U).  Shnir,  C.  J.,  in  that 
case  says;  "By  law  a  husband  is  entitled 

26* 


to  all  the  personal  property  of  the  wife,  to 
all  her  earnings  and  acquisitions,  and  to 
the  measure  of  her  real  estate  ;  it  also 
throws  on  him  the  obligation  to  support 
and  maintain  her."  And  in  Svkes  v. 
Ilalstead,  1  Sainlf.  Sup.  Ct  483,  it  was 
held,  that  where  a  husband  turns  his  wife 
away,  or  compels  her  to  go  bj'  ill-treatment, 
and  refuses  to  provide  for  lier,  he  gives  her 
a  credit  with  the  wliole  community,  ai- 
though  it  be  expressly  forbidden  by  him  ; 
and  she  has  a  right  to  be  supported  by  him. 
But  in  an  action  for  goods  supplied  t<j  the 
wife  on  her  order  alone,  the  question  is  (in 
the  absence  of  such  evidence  of  necessity 
as  may  show  an  agency  in  law)  whether 
there  was  any  agency  or  autliority  in  fiict, 
and  not  whether  the  goods  were  necessarv. 
Bead  r.  Tcakle,  24  E.  L.  &  E.  332. 

(  /)  Pettv  r.  Anderson,  2  C.  &  P.  38; 
Cliilord  r.  "Burton,  1  Bing.  199.  — But  in 
Smallpiecc  v.  Dawes,  7  C.  &  P.  40,  wlicre 
A,  who  kept  a  fruit  shop  in  London,  be- 
came a  bankrupt  in  1824,  but  did  not  sur- 
render to  his  commission,  and  from  that 
time  to  1833  the  business  was  carried  on 
by  his  wife,  to  whom  fruit  was  sup]ilied, 
between  1828  and  1832,  to  an  amount  ex- 
ceeding .£266,  and  evidence  was  given  to 
show  that  A  was  seen  in  London  a  few 
times  between  1824  and  1833,  and  wius 
arrested  at  the  shop  in  1833,  and  that  ho 
attended  the  marriage  of  his  two  daugh- 
ters at  Mary-lc-boiie  church  ;  it  was  /aid 
tluit  proof  f>f  tiiese  facts  was  not  sutticient 
to  go  to  the  jury  to  show  that  A's  wife 
acted  as  Jiis  agent,  so  .as  to  charge  him 
with  the  price  of  the  fruit. 

(/.)  Cotes  r.  Davis,  I  Camp.  485 ; 
Barlow  r.  Bishop,  1  East,  432  ;  Prcstwick 
V.  Marshall,  7  Bing.  ri6.5.  His  authority 
to  her  to  make  notes  in  his  name  cannot, 
however,  be  inferred  from  the  mere  fact 

[305] 


293- 


THE    LAW    OF    CONTRACTS. 


[book  I. 


certain  business  which  is  intrusted  to  the  wife  by  the  husband, 
he  would  undoubtedly  be  held  liable  for  them.  Whether  a 
married  woman  can  borrow  money,  even  for  necessaries,  and 
her  husband  be  held  liable  on  his  implied  authority,  seems  not 
to  be  settled.  (/)  If  the  lender  can  show  that  the  money  was 
used  by  the  husband,  then  he  can  hold  him. 

When  the  cohabitation  with  the  husband  ceases,  and  they 
live  separately,  then  a  new  state  of  things  arises,  and  with  it 
new  rules  of  law.  The  wife  separates  from  her  husband,  either 
by  his  fault,  or  by  her  own,  or  by  mutual  consent  and  agree- 
ment. In  the  first  case  she  carries  with  her  all  her  rights  to 
necessaries,  and  he  who  supplies  them  to  her  may  hold  her 
husband  liable  for  their  price,  (m)      And  we  deem  it  to  be  the 


that  he  knew  slie  was  carrying  on  busi- 
ness, and  that  she  gave  the  note  in  the 
•course  of  such  business  ;  and  on  a  note  so 
given  the  husband  is  not  liable  even  to  a 
■bond  fide  indorsee.  Reakert  r.  Sanford, 
5  Watts  &  Serg.  164.  —  Whenever  tlie 
husband  authorizes  the  wife  to  execute 
motes  in  his  name,  they  nuist  purport  on 
stheir  face  to  be  made  in  his  belialf,  or  by 
iher  «.s  agent,  or  he  will  not  be  bound. 
Minard  v.  Mead,  7  Wend.  68.  —  But  in 
ithe  late  case  of  Lindus  v.  Bradwoll,  5  C. 
B.  582,  where  a  bill  of  excliange  addressed 
,to  "  William  15."  was  accepted  by  liis 
'wife,  by  writing  her  own  name,  "  Mary 
B."  upon  the  back,  which  was  jiresented 
to  the  husband  after  it  became  due,  who 
said  be  knew  all  about  it,  that  it  was  for  a 
milliner's  bill,  and  that  he  would  pay  it 
shortly,  he  was  held  liable  as  acceptor, 
although  he  had  not  expressly  authorized 
'tis  wife  so  to  accept  the  bill. 

(/)  At  law,  a  husband  is  not  liable  for 

money  lent  to  the  wife,  unless  his  request 

:be  averred  and  proved.     Stone  r.  Macnair, 

7   Taunt.  4."32 ;  Stephenson  v.    Hardv,   3 

Wils.  388  ;  Walker  v.  Simpson,  7  Watts 

.&  Sere.  83 ;  Grendell  r.  Godmond,  5  Ad. 

.&  Ell."  75.5  ;  Earle  v.  Teale,  1   Salk.  387  ; 

Darby  v.   Boucher,  id.  279.     In   equity, 

■however,  the  lender  will   be   allowed  to 

stand  in  place  of  the  tradesmen,  and  to 

have  satisfaction  as  far  as  they  could  had 

rthey  l)een  plaintiffs.     Harris  v.  Lee,  1   P. 

Wms.  482,  Tree,  in  Chanc.  502  ;   Walker 

'  V.  Simpson,  supra;  Marlow  v.  Pitfield,   1 

P.   Wms.    558.      See    May   v.    Skey,    16 

.Simons,   588,   18  Law  Jour.    308.     And 

where  money  was  advanced    to   the  wife 

living  with  her  husband,  and  he,  after  the 

[306] 


wife's  decease,  promised  to  repay  the 
same,  "  when  convenient,"  but  said  he 
was  not  privy  to  the  loan,  it  was  held  that 
there  was  evidence  to  go  to  the  jury  that 
the  wife  had  l)orrowed  the  money  with  the 
sanction  of  her  husband,  or  that  he  ratified 
the  act,  and  tlie  plaintitf  had  a  verdict. 
West  V.  Wheeler,  2  C.  &  K.  714. 

(?n)  Bolton  i\ Prentice, 2  Strange,  1214; 
Harris  v.  Morris,  4  Esp.  41  ;  Kawlyns  v. 
Vandyke,  3  Esp.  251  ;  Hodges  y.  Hodges, 
1  id.  441  ;  Aldis  v.  Chapman,  1  Selw.  N. 
P.  281  ;  McCutchen  v.  McGahay,  11 
Johns.  281  ;  Houliston  v.  Smyth,  3  Bing. 
127  ;  Howard  i\  Whetstone,  10  Ohio,  365  ; 
Emmett  v.  Norton,  8  C.  &  P.  506; 
Clement  v.  Mattison,  3  Richardson,  93  ; 
Eredd  r.  Eves,  4  Harring.  385  ;  Al- 
len r.  Aldrich,  9  Eost.  63.  And  if  a 
wife  is  justified  in  leaving  her  liusband,  a 
request  on  his  part  that  she  will  return  will 
not  determine  his  liability  for  necessaries 
supplied  to  her  during  the  separation. 
Emery  ?•.  Emery,  1  Youngc  &  Jervis,  501. 
Where,  however,  the  person  supplying  the 
wife  with  necessaries  relies  upon  her  hus- 
liiuid's  ill-treatment  as  good  cause  for  her 
leaving  him,  he  must  show  affirmatively 
that  the  separation  took  place  in  conse- 
quence of  the  husband's  misconduct.  It 
is  not  enough  to  prove  that  there  were 
quarrels  and  personal  conflicts  between 
them,  unless  it  be  shown  that  the  husband 
was  the  offending  party.  Blowers  r.  Stur- 
tevant,  4  Denio,  46.  And  see  Reed  r. 
Moore,  5  C.  &  P.  200.  —  Perha])s  the 
same  degree  of  cruelty  which  would  be 
good  cause  for  a  divorce  would  be  suffi- 
cient to  authorize  the  wife  to  leave  her 
husband,  and  charge  him  for  her  support. 


CH.   XVIT.] 


MARRIED    WOMEN. 


*294 


same  thing  in  law,  as  well  as  in  reason,  whether  he  actually 
expels  her  from  his  *house  without  her  fault,  or  compels  her  to 
leave  his  house  by  cruelty  to  her,  or  by  his  misconduct  in  it,  as 
by  introducing  a  prostitute  into  it.  (n)  The  dictum  of  Lord 
Eldon,  that  "  where  a  man  turns  his  wife  out  of  doors,  he  sends 
with  her  credit  for  her  reasonable  expenses,"  is  undoubtedly 
law.  (o) 

Where  husband  and  wife  live  together,  there  is  a  presumption 
of  law  arising  from  cohabitation,  that  the  husband  assents  to 
contracts  made  by  the  wife  for  Ihe  supply  of  articles  suitable  to 
their  station,  means,  and  way  of  life,  (p)  But  when  this  co- 
habitation ceases,  then,  by  the  English  authorities,  the  pre- 
sumption of  law  is  against  his  assent;  and  the  husband  is  not 
liable,  unless  such  presumption  be  rebutted  by  showing  his 
authority  from  tiie  nature  and  circumstances  of  the  separation, 
or  the  conduct  of  the  husband,  or  the  condition  of  the  wife,  and 
the  nature  of  the  articles  supplied   to   her.  («y)      And  where  the 


I 


(n)  In  tlic  case  of  Ilarwood  c.  Ilcffcr,  3 
Taunt.  421,\vlicrc  the  evidence  was  that  the 
husband  tieati'd  the  wife  with  j^reat  cruelty, 
and  confined  her  in  iicrchanil)er  under  pre- 
tence of  insanity,  and  iiad  taken  another 
woman  into  liis  hou.-e,  with  wlioin  he  coliah- 
ited,  and  on  this  the  wife  escaped;  tlie  Court 
of  Connnon  Picas, in  1811,  a])|)arently  ovcr- 
lookiu}^  the  fact  of  tiie  hushand's  cruel- 
ty, did  not  think  tliat  the  mere  introduc- 
tion of  a  ])rostitute  into  tiie  family  was 
sufficient  to  justify  tiie  wife's  leavin<r,  and 
taking  up  ncccssarii'S  on  iicr  inishand's 
account.  JJiit  tliis  doctrine  has  hcen  suh- 
eeciucntly  decidedly  condemned,  and  we 
tiiink  it  unsound.  fSce  liouliston  c.  Smvtli, 
10  Moore,  482,  3  Hinu:.  127  ;  Hunt  r.'l)e 
Klaciuierc,  5  Biug.  502  ;  Fredd  v.  Eves,  4 
Ilarrin;^.  ."{85.  It  is  said  liy  JJronson,  C.  J., 
in  Blowers  r.  Stnrtcvant,  4  Denio,  41), 
that  the  doctrine  cnntaincil  in  Ilarwood  r. 
J  letter  cannot  he  law  in  a  Christian  coun- 
try. 

(o)  Rawlins  v.  Vandyke,  3  Esp.  2.'j0. 
And  see  Brcinig  r.  Meitzier,  23  Penn.  St. 
lieps.  157. 

(/))  Etherin;rton  r.  Parrot,  1  Saik.  118; 
McCutchen  V.  McCiahay,  11  Johns.  281  ; 
Fredd  i\  Eves,  4  Ilarrini,'.  385.  Coiial.i- 
tation  is  so  strong  evidence  <if  assent  and 
autiiority  hy  the  iiusl>and  that  he  will  i)c 
liable  for  necessaries  furnisiied  tiie  wife. 


althou<rh  they  were  not  legally  married, 
and  although  tlie  tradesman  knew  it. 
Watson  V.  Tiirelkeld,  2  Esp.  0.37  ;  Kobin- 
son  V.  Naiion,  1  Camp.  245 ;  Blades  i'. 
Free,  9  B.  &  C.  167.  But  cohabitation  is 
not  foiiclusive  evidence  of  an  authority  to 
]iurciiase  even  necessaries  ;  and  it  may  be 
rebutted,  as  by  showing  that  the  husband 
supplied  her  sutticiently  liimself,  or  that  he 
gave  her  sufficient  i-eady  money  to  make 
the  purciiases.  Manby  v.  Scott,  1  Sid. 
109;  Kesolution  iii.  2  Smitii's  Lead.  Cas. 
(3d  ed.)  264.  Uf  course  tiie  jaoof  of  such 
facts  lies  on  the  husband.  Clifford  i».  La- 
Um,  3  C.  &  P.  15. 

(7)  The  Englisii  autiiorities  arc  uniform 
tliat  if  the  husband  and  wife  live  separate 
and  apart,  the  presuin])tion  of  law  is 
against  the  iiusband's  liability,  even 
for  the  wife's  necessaries,  and  that  tiie 
bunlcn  of  proof  is  on  the  tradesmaa 
to  show  that  the  separation  took  place 
under  such  circumstances  as  to  con- 
tinue tiic  husband's  liability.  Clifford 
r.  Eaton,  3  C.  &.  P.  15;  Mainwaring  r. 
Leslie,  2  iil.  507  ;  Bird  v.  Jones,  3  Mann. 
&  Byl.  121  ;  Edwards  r.  Towels,  5  Mann. 
v*^  lliaiig.  024;  lliiidley  r.  Wesimcath,  6 
B.  &  C.  200  ;  Blowers  r.  Sturtevaiit,  4 
Denio,  46 ;  Walker  r.  Simpson,  7  Watts 
&  Serg.  83  ;  Cany  r.  Pattoii,  2  Ashm.  140. 
But  ill  Rumney  r.  Keves,  7  New  Ilamp. 

[307] 


295*-296' 


THE   LAW    OF    CONTRACTS. 


[book  I. 


husband  and  wife  live  *separate,  there  the  party  supplying  her 
may  be  regarded,  in  the  words  of  Lord  Mansfield,  as  standing 
in  her  place.  And  it  is  for  him  to  make  strict  inquiry  into  the 
terms,  cause,  and  character  of  the  separation ;  for  he  trusts  her 
at  his  peril.  If  the  separation  has  taken  place  by  the  husband's 
act,  and  against  the  wife's  will,  still,  if  it  be  for  her  adultery,  it 
was  so  far  a  justifiable  act  that  the  husband  is  no  longer  bound 
even  for  strict  necessaries  supplied  to  his  wife,  (r)  Whether 
this  rule  of  law  would  be  modified  by  the  power  given  in  nearly 
all  our  States  to  the  husband,  to  obtain  a  divorce  a  vinculo  from 
the  wife  for  her  adultery,  may  be  doubted.  We  see  no  good 
reason  why  it  should  be,  and  our  cases  which  touch  upon  this 
question  seem  to  adopt  the  English  view,  (s)  But  more  ques- 
tion may  exist  as  to  another  part  of  the  English  law  on  this 
subject ;  for  it  has  been  there  distinctly  decided  that  if  the  hus- 
band commits  adultery,  and  brings  his  adulteress  into  his  house, 
and  treats  his  wife  with  great  *cruelty,  and  then  turns  her  out 


571,  where  the  question  as  to  the  burden 
of  proof  and  the  presumptions  of  law  in 
such  case  were  much  discussed,  the  rule  is 
adapted  that  the  burden  of  proof  is  on  the 
husband  to  sliow  that  the  separation  was 
not  tlnoHgh  his  fault,  and  priiiid  facie,  his 
liability  still  continues  for  his  wife's  neces- 
saries/ See  also,  Frost  r.  Willis,  13 
Verm.  202 ;  Clancy  on  Husband  and 
Wife,  28. 

(r)  Hardie  v.  Grant,  8  C.  &  P.  512; 
Hunter  t\  Bouclier,  3  Pick.  289  ;  Child  v. 
Hardvman,  2  Strange,  875  ;  Mainwairing 
V.  Saiids,  1  id.  706  ;  Morris  v.  Martin,  id. 
647.  And  in  such  case  no  notice  to  the 
tradesman  of  the  wife's  adultery  and  sepa- 
ration is  necessary  in  order  to  discharge 
the  husband  from  his  liability.  Morris  v. 
Martin,  1  Strange,  647  ;  Mainwairing  r. 
Sands,  id.  707.  —  Ur  if  any  notice  is  neces- 
sary, general  notoriety  is  sufficient.  Parker, 
C.  J.,  in  Hunter  v.  Boucher,  3^  Pick.  289. 
And  in  like  manner  if  the  husband  and 
wife  live  apart  by  consent,  he  paying  her 
a  sufficient  maintenance,  he  is  not  liable 
for  her  necessaries,  she  having  been  guilty 
of  adultery  after  the  separation.  Cragg 
V.  Bowman,  6  Mod.  147.  And  the  same 
rule  applies  where  the  wife  voluntarily, 
and  without  any  fault  in  the  husband, 
elopes  from  him,  but  has  not  been  guilty 
of  actual  adultery  ;  in  such  case  the  hus- 
band cannot  be  made  liable  for  necessaries 

[308] 


furnished  the  wife  by  third  persons,  al 
though  they  had  no  knowledge  of  the 
elopement.  '  Brown  v.  Patton,  3  Humph. 
135;  McCutchen  i-vMcGahay,  11  Johns. 
281  ;  Hindlev  v.  Marquis  of  Westmcath, 
6  B.  &  C.  200 ;  Cany  v.  Patton,  2  Ashra. 
140.  However,  although  the  wife  be 
actually  guilty  of  adultery,  yet  ;/  cohabita- 
tion continue,  the  husband  is  still  liable  for 
her  necessaries.  Norton  r.  Fazan,  1  B.  & 
P.  226  ;  Harris  v.  Morris,  4  Esp.  41.  Let 
a  woman  be  ever  so  vicious,  yet  while  she 
cohabits  with  her  husband  he  is  bound  to 
provide  necessaries  for  her,  and  is  liable  to 
the  actions  of  such  persons  as  furnish  her 
with  them  ;  for  his  bargain  was  to  take  her 
for  better  or  for  worse.  Per  Holt,  C.  J., 
in  Kobison  r.  Gosnold,  6  Mod.  171.  For 
continued  cohabitation  after  knowledge  of 
her  adultery  is  a  condonation  of  her  of- 
fence. Quincy  v.  Quincy,  10  New  Hamp. 
272  ;  Hall  v.  Hall,  4  id. '462.  And  even 
if  the  husband  had  no  knowledge  of  her 
adultery,  yet  if  he  continue  to  live  with 
her  he  would  be  lialjle  for  her  necessaries ; 
for,  as  we  have  before  seen,  any  man  living 
with  any  woman,  as  man  and  loife,  is  liable 
for  her  support,  although  they  were  never 
married,  and  the  tradesman  knew  it. 
Watson  r.  Threlkeld,  2  Esp.  637  ;  Robin- 
son V.  Nahon,  1  Camp.  245 ;  Blades  v. 
Free,  9  B.  &  C.  167. 

(s)  See  Hunter  r.  Boucher,  3  Pick.  291. 


CH.  XVII.] 


MARRIED    AVOMEN. 


*297 


into  the  streets,  and  she  afterwards  commits  adultery,  and  then 
being  repentant,  offers  to  return  to  him,  and  is  wholly  without 
means  of  subsistence,  nevertheless  no  action  for  furnishing  her 
with  necessaries  is  maintainable.  (/)  But  this  is  certainly  very 
severe  law,  and  our  courts  would  be  very  reluctant  to  apply  it. 
If  the  husband  rests  his  defence  upon  the  wife's  adultery,  it 
must  be  very  strictly  proved,  and  a  verdict  in  an  action  for 
criminal  conversation  is  not  admissible  as  evidence  to  prove 
it.  (tj)  If  after  such  adultery  the  husband  receives  her  back  into 
his  house,  he  must  maintain  her  as  before  ;  and  cannot  dis- 
charge himself  of  his  liability  for  necessaries  supplied  to  her  but 
by  proof  of  a  new  act  of  adultery,  (v) 

If  the  wife  leaves  the  husband  without  just  cause,  and  re- 
fuses to  cohabit  with  him,  then  it  is  certain  that  she  loses  all 
right  to  a  maintenance  from  him.  For  the  opposite  rule  would 
encourage  a  wilful  breach  of  the  marriage  vow  and  duty,  and 
weaken  the  wholesome  influences  which  keep  together  those 
who  have  solemnly  agreed  to  live  together,  (tc)     *By  the  civil 


(t)  Govicr  V.  Hancock,  6  T.  R.  G03. 
And  it  has  likewise  been  iieki  in  Enjrland 
that  a  liusl)aiul  is  not  liahle  to  the  penalty 
of  Stat.  5  Geo.  4,  c.  83,  ^  3,  for  ne-^-^leciing 
and  relusin}:;  to  maintain  his  wife,  who  has 
left  him  and  committed  adultery,  altliough 
lie  has  himself  since  her  departure  been 
guilty  of  the  same  crime.  King  v.  Jflintan, 
1  15. ■&  Ad.  227. 

ill)  Ilanlie  v.  Grant,  8  C.  &  P.  512. 
Because  it  is  rf.i  inter  (ilias  partes. 

((•)  Harris  r.  Morris,- 4  Ksp.  41.  This 
was  an  action  of  assumpsit  to  recover  for 
necessaries  furnished  to  the  defendant's 
wife.  It  ai)peared  that  the  wife  had  for- 
merly eloped  for  adultery,  and  been  in  the 
Magdalen  jVsylum  ;  but  tiiat  the  defendant 
had  afterwards  taken  her  back.  Jldd, 
that  under  these  circumstances  he  was 
liable.     Lord  Ki'di/oii  said  :  "  With  respect 


of  doors."  And  where  tlic  husband  left 
his  wife,  who  had  been  guilty  of  adultery, 
still  living  in  his  house,  with  two  chihhvu 
bearing  his  name,  he  was  held  liable  for 
necessaries  sujiplied  her,  by  one  who  did 
not  know  the  circumstances.  >«orton  v. 
Fazan,  1  15.  &  P.  226. 

(w)  Manby?-.  Scott,  1  Sid.  129;  Brown 
V.  Patton,  3  Humph.  13.")  ;  McCutchen  r. 
McGahay,  11  Johns.  281;  Hindley  r. 
Marquis"  of  Westmeath,  G  B.  &  C.  200; 
Williams  c.  Prince,  3  Strob.  L.  490;  Al- 
len i\  Aldrich,  9  Post.  63.  —  If,  however, 
she  otters  to  return,  not  having  been 
guilty  of  adultery,  and  the  husband  re- 
fuses to  leceivc  her,  his  liability  for  her 
future  necessaries  is  thereby  revived. 
McCutchen  /•.  McGahay,  11  Johns.  281  ; 
Clement  r.  ^lattison,  3  Richardson,  93  ; 
Cunningham  r.  Irwin,  7  S.  &  K.  247.- 


to    her   having    been    formerly   guilty  of    A?id  if  such  ajiplication  is  made   to  the 


adultery,  and  having  been  in  the  Magdalen 
Asylum,  though  an  adullcrDUs  elojicmcnt 
will  ])revent  the  husband  from  being  liahle 
for  articles  furnished  to  the  wife  during 
the  term  of  her  elopement,  that  is  no 
answer  now.  The  husband  has  taken  her 
back,  and  she  was  from  that  time  ctuitled 
to  dower;  she  was  syjo/i/c  ri tnir/a,  iu\(]  uf 
course  entitled  to  maintenance  during 
coverture,  if  her  husband  turned  her  out 


husliand  by  some  third  ))erson  on  behalf 
of  the  wife,  and  he,  witlR)Ut  ([uestioning 
such  third  person's  authority,  put  his  re- 
fusal on  some  other  ground,  it  will  be 
e(puvalent  to  a  personal  ai)pli(aiion  by  the 
wife  herself.  McGahay  r.  Williams,  12 
Johns.  293.  —  So  if  husband  and  wife 
separate  by  consent,  and  provision  is  made 
by  him  for  her  maintenance,  if  the  wife, 
during  such  sejiaration,  jjurchase  ucccssa- 

[309] 


297- 


THE    LAW    OF    CONTRACTS. 


[book  I. 


law  also,  if  a  wife  leave  her  husband  without  his  fault,  he  is  not 
obliged  ei  aUqiioliler  submiaislrare.  {x)  But  if  after  deserting 
him  she  offers  lo  return,  we  think  his  obligalion  to  receive  her 
or  maintain  her  must  depend  upon  the  circumstances  of  her 
separation,  and  its  length,  and  her  conduct  during  the  separa- 
tion. If  no  sufficient  objection  arises  from  these  circumstances, 
then  he  is  bound  to  receive  her;  otherwise  not.  {y)  We  repeat, 
therefore,  that  if  the  wife  lives  separate  from  her  husband,  it  is 
obvious,  from  the  many  questions  which  may  be  raised,  that  it 
is  incumbent  on  one  who  would  supply  her  with  necessaries 
on  the  husband's  credit,  but  without  his  express  authority,  to 
look  cautiously  into  all  the  facts  and  circumstances,  [z) 

When  the  separation  takes  place  by  the  consent  and  agree- 
ment of  both  parties,  something  pi  uncertainty  arises,  from  the 
conflict  between  the  unwillingness  of  the  law  to  permit  and 
sanction  such  violation  of  marriage  obligation  and  duty,  on  the 
one  hand,  and  on  the  other  its  disposition  to  allow  such  a  sepa- 
ration under  circumstances  which  give  it  a  color  of  reason,  and 
to  hold  all  parties  to  their  contracts  made  in  relation  to  it,  so 
far  as  may  be  done  without  placing  the  power  of  a  dissolution 
of  marriage  too  much  in  the  hands  of  the  married  parties.  Thus, 
it  is  said  by  Sir  William  Scott,  that  the  obligations  of  the  mar- 
riage contract  are  not  to  be  relaxed  at  the  pleasure  of  one 
party,  or  at  the  pleasure  of  both,  {a)  And  it  is  well  settled  that 
they  cannot  by  any  contract  destroy  each  other's  rights.  Let 
the  covenant  of  separation  be  never  so  formal  or  solemn,  either 
party  may  at  any  time  insist  upon  a  restoration  of  all  the  rights 
which  belong  to  the  relation  of  marriage,  {b)     But  if  after  such 


ries,  and  the  parties  subsequently  cohabit 
together,  the  husband  will  be  liable  for 
them.  Kennick  v.  Ficklin,  3  B.  Mon- 
roe, 166. 

(.r)  Dig.  Lib.  23,  Tit.  3. 

ly)  In  Henderson  v.  Stringer,  2  Dana, 
293,  it  is  said  :  "  If  she  oftcrs  to  return, 
and  he,  without  sufficient  cause,  i*efases  to 
receive  her,  liis  liability  is  revived." 

(2)  See  I31owers  v.  Sturtevant,  4  Denio, 
46. 

(«)  See  Evans  v.  Evans,  1  Hagg.  Con- 
sist. R.  118  ;  Oliver  v.  Oliver,  id.  364. 

[b)  Mortimer  v.  Mortimer,  2  Hagg. 
Consist.  R.  318.     In  this  case,  Su-  Wil- 

[310] 


liam  Scott,  in  commenting  upon  a  plea  in 
bar  to  a  suit  for  the  restitution  of  conjugal 
rights,  observed :  "  The  seventh  and 
eighth  articles  plead  the  circumstance 
which  led  to  the  deed  of  separation,  and 
the  deed  is  exhibited.  The  olijection 
taken  against  these  articles  is,  tliat  deeds 
of  separation  are  not  pleadable  in  the 
ecclesiastical  court,  and  most  certainly 
they  are  not,  if  pleaded  as  a  bar  to  its  fur- 
ther proceedings ;  for  this  court  considers 
a  private  separation  as  an  illegal  contract, 
implying  a  renunciation  of  stipulated 
duties  —  a  dereliction  of  those  mutual 
offices  which  the  parties  are  not  at  liberty 


CH.    XVII.] 


MARRIED    WOMEN. 


»298 


a  *deed,  and  a  separation  consequent  upon  it,  the  husband  in- 
stitutes proceedings  to  recover  the  society  of  his  wife,  the  deed, 
though  no  bar,  may  still  be  evidence  as  to  the  character  of  the 
separation,  and  if  this  be  shown  to  have  arisen  from  his  mis- 
conduct, either  by  the  deed  itself  or  otherwise,  he  cannot  suc- 
ceed, (c)  Nevertheless,  where  such  separation  is  made  by  an 
instrument  to  which  a  third  person  is  a  party,  and  is  a  trustee 
for  the  wife,  and  the  husband  agrees  with  this  trustee  to  give 
him  a  sufficient  sum  for  her  maintenance,  such  trustee  may 
maintain  an  action  on  the  agreement,  (d)     And  if  the  trustee 


to  desert  —  an  assumption  of  a  false  char- 
acter in  both  parties  contrary  to  the  real 
status  personce,  and  to  the  ol)liL,^ations 
which  both  of  them  have  contracted  in  the 
sight  of  God  and  man,  to  live  together, 
'  till  death  them  do  part,'  and  on  which 
the  solemnities  both  of  civil  society  and  of 
religion  have  stamped  a  binding  authority, 
from  which  the  parties  cannot  release 
themselves  by  any  private  act  of  their 
ovra,  or  for  causes  which  the  law  itself  has 
not  ])ronounccd  to  be  sufficient,  and  sufti- 
cientlv  jjroved."  See  also,  iSuUivan  v. 
Sullivan,  2  Adams,  Ecc.  R.  303  ;  Smith 
V.  Smith,  2  Hagg.  Ecc.  R.  (supp.)  44,  n.«. 
—  Although  a  deed  of  separation  upon 
mutual  agreement,  on  account  of  unhappy 
dirterences,  contain  a  covenant  not  to 
bring  a  suit  for  restitution  of  conjugal 
rights,  yet  it  is  no  bar  to  such  a  suit. 
Westmeath  v.  Wcstmcath,  2  Hagg.  lilcc. 
R.  (sup]).)  115.  —  That  deeds  of  separa- 
tion between  husband  and  wife  amount  to 
nothing  more  than  a  mere  permission  to 
one  party  to  live  separate  from  the  other, 
and  confer  no  relea.se  of  the  raamage 
contract  on  either  party,  and  that  neither 
can  violate  them,  see  Wan-ender  /•.  Warreu- 
der,  2  Clark  &  Einn.  501  ;  Lord  St.  John  v. 
Ladv  St.  John,  1 1  Vcs.  526,  .532  ;  Wilkes  r. 
Wilkes,  2  Dickens,  791  ;  Manjuis  of  West- 
meath i'.  Marchioness  of  Wcstmcath,!  Dow 
&  Clark,  519;  Guth  v.  Guth,  3  IJro.  C.  C. 
614,  .seems  contra  ;  but  this  case  is  not  of 
good  authority. 

(f)  Rc.K  r."  Mary  Mead,  1  Burr.  542. 
This  case  was  a  writ  of  h<il»'as  rur/iiis,  at 
the  instance  of  a  husband  to  bring  uj)  the 
body  of  his  wife,  who  had  separated  from 
him,  and  who  was  then  living  with  her 
mother.  The  mother  brought  her  daugh- 
ter into  court,  and  the  substance  of  the  re- 
turn on  the  writ  of  hahms  corfnis  was, 
"  that  her  husband  having  used  her  very 


ill,  in  consiilemtion  of  a  great  sum  which 
she  gave  him  out  of  her  separate  estate, 
consented  to  her  living  alone,  executed 
articles  of  separation,  and  covenanted  (wnAcr 
a  large  penalty),  'never  to  disturli  her  or 
any  person  with  whom  she  should  live  ; ' 
that  she  lived  with  her  mother,  at  her 
own  earnest  desire  ;  and  that  this  writ  of 
habeas  corpus  was  taken  out  with  a  view  of 
seizing  her  by  force,  or  some  other  had 
purpose."  The  court  held  this  agreement 
to  be  a  formal  renunciation  by  the  husband 
of  his  marital  right  to  seize  her,  or  force 
her  back  to  live  with  him.  And  they  said 
that  anij  attempt  of  the  husband  to  seize 
her  by  force  and  violence  would  be  a 
breach  of  the  ptace.  They  also  declared, 
that  any  attempt  made  \>y  the  husband  to 
molest  her,  in  hfr  jirescnt  return  from  West- 
minster  Hall,  would  bc  a  conlemjit  of  the 
court.  And  they  tohl  the  lady  she  was  at 
full  liberty  to  go  where  and  to  whom  she 
pleased.  And  where  the  wife  voluntarily 
lived  ajiart  from  her  husband,  without 
coercion  o?i  the  part  of  any  one,  it  was  held 
that  the  writ  of  habeas  corpus  should  not  be 
granted  to  her  husband,  but  that  the 
remedy,  if  there  was  no  good  cause  for  her 
remaining  apart,  was  solely  in  the  Eccle- 
siastical Courts.  Ex  parte  Sandiland,  12 
E.  L.  &  I*:.  464. 

{d)  Jee  r.  Thurlow,  2  B.  &  C.  547,  4 
D.  &  R.  11  ;  Wilson  r.  Mushett,  3  B.  & 
Ad.  743.  In  this  case  the  defendant  gave 
a  l)ond  to  A  &.  B,  conditioned  for  the  pay- 
ment of  an  anmiity  to  his  wife,  unless  she 
should  at  any  time  molest  him  on  account 
of  her  ik'bts,  or  for  living  a]iart  from  her. 
By  indenture  of  the  same  date  between  the 
above  parties  and  the  wife,  reciting  that 
defendant  and  his  wife  had  agreed  to  live 
separate  during  their  lives,  and  that,  for 
the  wife's  maintenance,  defendant  had 
agreed  to  assign  certain  premises,  &c.,  to 

[311] 


299*-300* 


THE    LAW    OF    CONTRACTS. 


[book  I. 


*agrees  to  hold  the  husband  harmless  on  his  liability  for  his 
wife,  and  indemnify  him  against  any  further  expenditure  for 
her,  the  husband  may  maintain  an  action  on  such  agree- 
ment, (e)  Without  the  intervention  of  such  third  party,  the 
husband  and  wife  cannot  contract  together,  being  but  one  per- 
son in  the  view  of  the  law.  (/)  But  such  agreement  must  be 
absolute  and  unconditional,  and  not  dependent  upon  the  con- 
tingency of  a  future  separation,  nor  upon  the  wife's  future  con- 
sent to  live  separate,  for  then  it  is  regarded  as  an  inducement 
to  separation,  and  is  therefore  wholly  *void.  (g-)  And  if  the 
covenant  be  in  general  to  pay  an  annuity  to  the  wife,  the  con- 


A  and  B,  and  had  given  them  an  annuity 
bond,  as  above  mentioned ;  it  was  wit- 
nessed that  defendant  assigned  the  pi-erai- 
ses,  &c.,  to  them,  in  trust  for  the  wife,  and 
lie  covenanted  to  A  and  B  to  live  separate 
from  her,  and  not  molest  her  or  interfere 
with  her  property  ;  and  power  was  given 
her  to  dispose  of  the  same  by  will,  and  to 
sell  the  assigned  premises,  &c.,  and  buy 
estates  or  annuities  with  the  proceeds.  The 
wife  covenanted  with  the  defendant  to 
maintain  herself  during  her  life  out  of  the 
above  property,  unless  she  and  the  de- 
fendant should  afterwards  agree  to  live 
together  again  ;  and  that  he  should  be  in- 
demnified from  her  debts.  The  indenture, 
(except  as  to  the  assignment,)  and  also 
the  bond,  were  to  become  void  if  the  wife 
should  sue  the  defendant  for  alimony,  or 
to  enforce  cohabitation.  And  it  was  pro- 
vided that  if  the  defendanf  and  his  icife 
shoidd  ther&ifter  agree  to  live  together  again, 
such  cohabitation  should  in  no  way  alter  the 
trusts  created  by  the  indenture.  There  was 
no  express  covenant  on  the  part  of  the 
trustees.  The  defendant  and  his  wife 
separated,  and  afterwards  lived  together 
again  for  a  time,  and  this  fact  was  pleaded 
to  an  action  by  the  trustees  upon  the  an- 
nuity bond,  as  avoiding  that  sccurit}'. 
Held,  on  demurrer  to  the  plea,  that  the 
reconciliation  was  no  bar  to  an  action  on 
this  bond,  since  it  did  not  appear  that  the 
bond,  and  the  indenture  of  even  date  with 
it,  were  not  really  executed  with  a  view  to 
immediate  separation  ;  and  although  there 
might  be  parts  of  the  indenture  which  a 
court  of  equity  would  not  enforce  under 
the  circumstances,  yet  there  was  nothing, 
on  a  view  of  the  whole  instrument,  to  pre- 
vent this  court  from  giving  effect  to  the 
clause  which  provided  for  a  continuance  of 
the  trusts  notwithstanding  a  reconciliation. 

[312] 


Sec   also,  Logan   v.   Birkett,    1    My.    & 
Keene,  225. 

(e)  Summers  v.  Ball,  8  M.  &  W.  596, 
where  a  deed  of  separation  between  hus- 
band and  wife  contained  a  covenant  by 
the  wife  and  her  trustees,  that  she,  her  ex- 
ecutors or  administrators,  or  the  trustees 
or  some  or  one  of  them,  should  and  would 
at  all  times  save,  defend,  and  keep  harm- 
less and  indemnified  the  husband  from  and 
against  the  debt  or  debts,  sum  or  sums  of 
money,  which  siie  the  wife  had  then,  at 
the  time  of  the  making  of  the  indenture, 
contracted,  or  which  she  should,  at  any 
time  thereafter,  during  the  separation, 
contract.  Held,  that  this  covenant  inclu- 
ded debts  previously  contracted  by  the 
wife  for  necessaries  while  living  with  the 
husband. 

(/■)  Co.  Litt.  112,  a.;  Reeve's  Dom. 
Rcl.  89,  90 ;  Marshall  v.  Rutton,  8  T.  R. 
545  ;  Carter  v.  Carter,  14  Sm.  &  Mar. .59. 
He  cannot  convey  property  directly  to  her. 
Martin  v.  Martin",  1  Green'l.  094.  —  There 
is  a  recent  case  upon  this  point,  decided 
by  the  Supreme  Court  of  Massachusetts, 
by  the  name  of  Jackson  v.  Parks,  not  yet 
reported.  It  was  assumpsit  on  two  prom- 
issory notes,  made  by  the  defendant's  tes- 
tator to  the  plaintiff,  his  wife,  during  cov- 
erture. The  consideration  of  the  notes  ■ 
was  certain  property  which  the  plaintiff 
held  in  her  own  right,  which  passed  to  her 
husband.  The  court  held  that  the  action 
could  not  be  sustained.  In  Sweat  v.  Hall, 
8  Venn.  187,  the  same  doctrine  has  been 
established. 

(g)  Wcstmeath  v.  Salisbury,  5  Bligh, 
N.  "S.  393  ;  Durant  v.  Titley,  7  Price,  577; 
Hindlcv  v.  Westmcath,  6  B.  &  C.  200 ; 
Jee  V.  Thurlow,  2  B.  &  C.  547  ;  Jones  v. 
AVaite,  9  C.  &  F.  101. 


CII. 


xvir.] 


MARRIED   WOMEN. 


*301 


sideration  for  it  being  the  separation,  and  in  the  nature  of  a 
continuing  consideration,  a  subsequent  reconciliation  and  co- 
habitation discharges  the  husband  from  his  obligation.  (//)  But 
the  agreement  may  be  expressly  to  pay  to  her  or  for  her  use 
such  annuity  during  her  life,  and  then  it  is  not  affected  by  a 
subsequent  cohabitation,  (i)  And  it  would  seem  that  if  the 
annuity  is  expressly  to  be  paid  during  the  continuance  of  a 
separation  by  mutual  consent,  and  the  husband  forfeits  his 
marital  rights  by  his  own  misconduct,  he  can  no  longer  put  an 
end  to  the  separation,  nor  to  his  obligation  to  pay  the  an- 
nuity, (j)  And  if  such  agreement  to  pay  an  annuity  do  not 
expressly  except  adultery  on  her  part,  neither  that  nor  a  divorce 
because  of  it  would  discharge  his  obligation,  (k)  But  it  must 
*be  remembered  that  such  divorce  in  England  would  be  only 


(/()  Scliolcv  V.  Goodman,  1  C.  &  V.  36. 

(/)  Wilson /•.  Mushett,  3  B.  &  Ad.  743. 
In  this  case  Lord  Triitf-ideii,  C.  J.,  said  : 
"  I  tliink  it  is  imj)Ossil)lc  for  us,  sittiiij;  in 
a  court  of  law,  to  say  that  this  deed,  and 
the  bond  on  which  tlic  action  is  hrou^rht, 
were  avoided  l>y  the  reconciliation  aJlcj^'-cd 
in  the  jilea.  The  aruMiinent  for  the  de- 
fendant must  he,  that  if  the  hushand  and 
wife  had  afjreed  to  live  together  ajrain, 
even  for  a  few  houi-s,  and  afterwards  sep- 
arated, all  the  provisions  of  the  deed  were 
put  an  end  to  hy  coinUuiation.  I  think 
that  upon  this  deed  we  cannot  come  to 
such  a  conclusion.  Whether  a  court  of 
equity  would  enforce  all  the  trusts  or  not 
is  a  question  witii  which  we  have  nothing 
to  do.  (»nc  proviso  of  the  deed  is,  that  if 
the  defendant  and  his  wife  sliall  thereafter 
afrrec  to  cohahit  ac:ain,  sucli  cohahitation 
sliall  in  no  way  alter  the  trusts  thenliy 
created,  hut  they  shall  stand  valid,  and  of 
as  full  effect  to  all  intents  and  purpo.ses, 
as  well  duriiifr  siuh  cohahitation  as  in 
case  they  ajraiu  live  .separate ;  and  it  is 
said  that  this  is  inconsistent  with  other 
parts  of  the  instrunient  of  separation.  HiH 
I  do  not  see  the  ohjection.  The  settle- 
ment made  on  the  wife  may  have  l)een  iu- 
teiuled  to  continue  at  all  events  as  an  al- 
lowance in  the  nature  of  ])in-mfineT.  At 
least,  I  cannot  say  that  a  deed  like  this 
hecomes  alto<;ether  voi<l  on  a  reconcilia- 
tion. It  would  he  contrary  to  the  express 
provision  of  the  deed,  inserte(f,  perhaps, 
in  conteniplati<m  that  the  wife  mi^dit,  un- 
der some  circumstances,  choose  rather  to 
live  with  her  husbaud  again,  enjoying  the 

VOL.  I.  27 


annuity  settled  upon  her,  than  to  continue 
separate." 

( /)  Whoregood   v.  Whoregood,  1  Ch. 
Cas.  2.50. 

(/>•)  Banyon  v.  T5atlev,  8  Bing.  2.t6  r 
Jee  r.  Thurlow,  2  B.  &'C.  547.  By  deed 
of  three  parts,  between  husband  and  wiiv 
and  trustee,  reciting  that  ditfereiu-es  ex- 
isted, and  that  the  husband  aiul  wife  had 
agreed  to  live  separate,  the  husband  cov- 
enanted to  pay  an  annuity  to  the  wife, 
during  so  much  of  her  life  as  he  should 
live,  and  the  trustee  coveinintcfl  to  indem- 
Tiify  the  liiisband  a^rainst  the  wife's  debts, 
and  that  she  should  release  all  claim  of 
jointure,  dower,  and  thirds.  Ildil,  that 
this  deed  was  legal  and  binding,  and  that 
a  ])lea  by  the  hiviband  that  the  wife  sned< 
in  the  Keclesiastical  Court  for  ix'stitution 
of  conjuiral  rr;:hts,  and  that  he  ]iut  in  an 
allegation  and  exhiliits,  chargiu','-  her  with 
adultery,  and  that  a  decree  of  divorce  a 
vwnsn  ett/iiiifiwixs  in  that  cause  pronounced, 
was  not  a  suflieient  answer  to  an  action  l)y 
the  trustee  for  arrears  of  the  anmiity. 
AUiijt/,  C.  J. :  "  The  only  question  is  upon 
the  sutticiency  of  the  plea.  It  has  been 
decided  that  a  ])le.i  stating  the  C(imniissit)n 
of  adultery,  by  the  wife  is  not  sufficient, 
upon  this  ground,  that  if  the  husband, 
when  executing  such  a  deed  as  this,  thinks 
proper  to  enter  into  an  unqualified  cove- 
nant he  must  he  Iiound  by  it.  Had  he 
wi-ihed  to  make  the  non-<'onmiission  of 
a(hiltery  a  conditirm  of  paying  the  animity 
to  his  wife,  he  should  have  covenanted  to- 
l>ay  it  qiiam  diu  casta  i^ixerit." 

[313] 


'602* 


THE   LAW    OF    CONTRACTS. 


[book  I. 


(unless  by  act  of  Parliament)  a  mensa  et  thoro ;  whereas  in 
this  country  it  would  be  a  vinculo,  and  thus  might  perhaps  put 
an  end  to  such  obligation. 

If,  upon  such  separation,  property  has  been  settled  on  the 
wife  and  children  for  their  support,  it  would  be  upheld  against 
subsequent  creditors,  unless  the  settlement  were  shown  to  be 
without  good  faith.  (/) 

If  there  be  separation  by  consent,  and  a  specific  sum  settled 
.upon  the  wife,  which  is  reasonably  sufficient  for  her  necessities, 
then  the  husband  is  not  liable  for  necessaries  supplied  to 
her.  (m)  Nor  is  he  so  liable  even  if  the  party  so  furnishing 
goods  did  not  know  of  the  provision  made  for  the  wife ;  unless 
this  party  had  supplied  her  before,  and  the  separation  was 
, recent  and  not  notorious  ;  («)  the  fact  of  separation,  if  he  knew 
it,  was  enough  to  put  him  upon  inquiry.  But  the  party  sup- 
plying necessaries  to  a  separated  wife  is  *not  bound  to  show 
that  no  provision  is  made  for  her;  if  the  husband  undertakes 
to  relieve  himself  from  his  liability  by  the  fact  of  such  provision, 
the  burden  of  proving  it  lies  on  him ;  (o)  and  if  it  be  inadeqate 


■  (/)  Hobbs  V.  Hull,  1  Cox,  445;  Ste- 
phens V.  Olive,  2  Brown,  C.  C.  91  ;  Nunn 
V.  Wilsmore,  8  T.  K.  521. 

(m)  Angler  v.  Angler,  Glib.  Eq.  R.  152  ; 
Stephens  v.  Olive,  2  Bro.  C.  C.  90  ;  Todd 
V.  Stakes,  I  Salk.  116,  1  Ld.  Eaym.  444. 
This  allowance  must  be  reasonablj^  suffi- 
cient for  the  wife  to  the  satisfaction  of  a 
jury;  and  the  mere  acquiescence  on  the 
part  of  the  wife  in  the  sum  paid  will  not 
necessarily  exonerate  the  husband.  Hodg- 
kinson  v.  llctcher,  4  Camp.  70;  Liddlow 
V.  Wilniot,  2  Stavkie,  87  ;  Emmett  v. 
Norton,  8  C.  &  V.  506.  The  sum  stipu- 
lated by  the  husluuid  must  have  been 
actualli)  paid,  or  the  husband  is  not  dis- 
.  charged,  and  the  wife  is  not  driven  to  her 
remedy  on  the  instrument  of  separation, 
but  may  bind  her  husband  on  her  con- 
tracts. Nurse  v.  Craig,  5  B.  &  P.  148 ; 
Hunt  V.  De  Blaquiere,  5  Bing.  550. 

{n)  In  Rawlins  v.  Van  Dyke,  3  Esp. 
250,  Jjord  Eldon  is  reported  to  have  held, 
that  in  cases  of  separation  between  man 
and  wife,  if  the  tradesman's  demand  is  for 
necessaries,  it  is  incumbent  on  the  hus- 
band, in  order  to  discharge  himself,  to 
show  that  the  tradesman  had  notice  of  the 
separation.      But  this   doctrine  was   di- 

[314] 


rectly  repudiated  in  the  late  case  of  Mizen 
V.  Pick,  3  M.  &  W.  481,  and  A/derson,  B., 
there  said  :  "  I  do  not  see  how  notice  to 
the  tradesman  can  be  material.  The 
question  in  all  these  cases  is  one  of  au- 
thority. If  a  wife,  living  separate  from 
her  husband,  is  supplied  by  him  with 
sufficient  funds  to  supjjort  hei-sclf — with 
every  thing  proper  for  her  maintenance 
and  support,  then  she  is  not  his  agent  to 
jjledge  his  credit,  and  he  is  not  liable."  It 
has  likewise  been  held  in  this  country  that 
if  the  tradesman  was  not  accustomed  to 
trust  the  wife  before  separation,  neither 
express  notice  nor  general  notoriety  of  the 
fact  of  separation  is  necessary  to  discharge 
the  husband.  Cany  v.  Patton,  2  Ashm. 
140.  And  see  Baker  v.  Barney,  8  Johns. 
72 ;  Mott  V.  Comstock,  8  AVend.  544 ; 
Wilson  V.  Smyth,  1  B.  &  Ad.  801. 

(o)  See  Erost  v.  Willis,  13  Verm.  202 ; 
Rumney  v.  Keyes,  7  New  Hamp.  571  ; 
Clancy  on  Husband  and  Wife,  28.  But 
in  Mott  V.  Comstock,  8  Wend.  544,  it  was 
held,  that  if  a  husband  professes  to  provide 
for  his  wife,  who  lives  apart  from  him,  it 
is  incumbent  upon  a  party  w/to  has  been 
expressly  forbidden  to  give  her  credit  to  show 
clearly  and  affirmatively  that  the  husband 


CH.  XVII.] 


MARRIED   WOMEN. 


•303 


or  not  duly  paid,  he  is  liable.  (/))  Bat  he  is  not  liable,  even  if 
the  separation  were  not  by  deed,  and  there  is  no  written  agree- 
ment between  them  as  to  the  allowance,  if  it  be  in  fact  paid  to 
her.  (r/)  And  he  is  also  under  no  liability  if  suflicient  necessa- 
ries be  provided  for  her  by  another  person,  and  none  by  him.  (r) 
The  rule  of  law  is,  that  if  a  wife  be  separated  from  her  hus- 
band, with  her  consent,  he  is  liable  for  necessaries  supplied  to 
her  only  where  in  fact  she  has  no  other  means  of  obtaining 
them.  But  under  any  circumstances  of  separation,  the  husband 
may  be  *held  to  answer  to  articles  of  the  peace  against  him,  if 
occasioned  by  his  violent  conduct  towards  her,  (5)  and  even 
held  liable  to  pay  the  bill  of  the  attorney  whom  she  employs 


did  not  supply  licr  with  necessaries  suit- 
able to  iier  condition,  hcibre  he  can  clmri^e 
liim  for  sup])Jies  furnished  her ;  and  this 
seems  to  be  the  better  law.  But  in  Mc- 
Clallen  v.  Adams,  19  Pick.  333,  where  the 
wife  of  the  defendant,  being  atHicted  with 
a  dangerous  disease,  was  carried  by  him 
to  a  distaiice  from  his  residence,  and  left 
under  the  care  of  the  plaintiff  as  a  sur- 
geon, and  after  the  lapse  of  some  weeks, 
the  plaintiff  ]>erformed  an  o])eration  on 
her  for  the  cure  of  the  disease,  soon  after 
wliidi  she  dii-d,  it  was  he/il,  in  an  action 
by  the  plaintiff  against  the  defendant,  to 
recover  comjiensation  for  his  services,  that 
the  performance  of  the  opcr;\tion  was 
\\itiiin  the  scojjc  of  the  plaintitf 's  author- 
ity, if  in  his  Judgment  it  was  necessary  or 
exj)cdicnt,  and  tliat  it  was  not  incuml)ent 
on  him  to  ])rove  that  it  was  necessary  or 
proper  under  the  circumstances,  or  that 
before  he  peifornied  it  he  gave  notice  to 
the  defendant,  or  that  it  would  have  liceu 
dangerous  to  the  wife  to  wait  until  notice 
could  be  given  to  the  defemlant. 

(//)  Ilodgkinson  r.  Flctclier,  4  Camp. 
TO;  Liddlow  r.  Wilniot,  2  Starkic,  87; 
Emmett  /•.  Norton,  8  V.  &  1'.  506  ;  Hunt 
»'.  l)e  Klai|uicre,  .')  Hing.  5.")(t.  —  It  has 
been  held  that  notwithstanding  the  hus- 
banil  pay  the  wife  a  sutlicient  allowance, 
yet  if  he  I'.rpre.-isli/  promise  to  pay  tiiedei)ts 
she  has  contracted  during  such  se|)aration, 
he  is  boun<l  bv  snrli  pronnse.  Harrison 
V.  Hall,  I  Mood,  v^  Kob.  185  ;  Ilornbncklo 
r.  Hornbury,  '2  Starkie,  177.  15ut  these 
cases  seem  certainly  very  anomalous,  and 
difficult  to  be  sui)])orted,  since  if  the  al- 
lowaiu-e  was  duly  paid,  and  was  adecpiate, 
the  husband's  promise  would  be  iiudiim 
fact  inn. 


(</)  Xo  deed  of  separation  is  actually 
necessary ;  it  is  sufficient  if  a  separation 
actually  took  place.  Ilodgkinson  r. 
Fletcher,  4  Camp.  70 ;  Emery  v.  Neigh- 
bour, 2  Ilalst.  142;  Lockwood  i:  Tho- 
mas, 12  Johns.  248  ;  Kimball  v.  Keyes,  11 
Wend.  33.  But  if  the  se])arate  mainte- 
nance be  secured  by  deed,  it  is  held  that 
the  deed  is  void  unless  executed  by  a  trus- 
tee on  the  part  of  the  wife.  Ewers  v. 
Ilutton,  3  Esp.  255. 

()•)  It  is  immaterial  from  what  source 
the  wife's  jirovision  comes,  ])rovided  it  be 
sufficient  and  ])ermanent.  Liddlow  v. 
Wilmot,  2  Starkie,  86 ;  and  see  Dixon 
r.  llurrell,  8  C.  &  P.  717.  The  case  of 
Thonipson  r.  Hervey,  4  Burr.  2177,  some- 
times cited  as  deciding  that  the  provision 
must  be  derived  from  the  husband  in 
order  to  discharge  him,  seems  to  have 
proceeded  rather  on  the  ground  that  the 
])rovision  was  ])urely  voluntary,  and 
during  the  pleasure  of  the  grantor,  and 
therefore  that  creditors  could  not  be  sup- 
posed to  relv  upon  it. 

(.s)  TuriKT  r.  Hookes,  10  Ad.  &  El.  47. 
This  was  an  action  of  assumjisit  to  recover 
for  services  rendered  l)y  tiie  plaintiff,  as 
sidicitor,  to  the  defendant's  wife,  in  ex- 
hibiting articles  of  the  peace  against  the 
defendant.  It  a])))cared  that  the  defendant 
and  his  wife  had  been  se])arated  for  seven 
ycai"s,  she  living  u])on  a  maintenance  of 
.£\\)>  per  aiuuiin,  \vlii(  h  the  defendant  had 
secured  to  her  by  deed.  The  cause  of 
se]>aration  ilid  not  a])|)ear.  It  further  ap- 
peared that  the  defendant  had  used  such 
threats  and  violence  against  his  wife  as 
authorized  her  to  exhiliit  articles  of  the 
jicace  against  him.  It  was  hild  that  the 
plaintiff  was  entitled  to  recover. 
[315] 


804* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


for  that  purpose,  (t)  But  he  has  been  held  not  liable  to  pay  *the 
bill  of  an  attorney  whom  she  employs  to  procure  an  indictment 
of  him.  (u) 

A  liability,  very  similar  to  that  which  falls  upon  one  who  is 
legally  a  husband,  rests  also  upon  him  who  lives  with  a  woman 
as  his  wife,  who  is  not  so.  If  he  holds  her  out  to  the  public  as 
liis  wife,  then  he  promises  the  public  that  he  will  be  as  respon- 
sible for  her  as  if  she  were  so.  (y)      Hence  he  is  liable,  as  for  his 


(t)  Shepherd  v.  Mackoul,  3  Camp.  326. 
But  this  was  on  the  ground  that  in  tluit 
particular  case  the  step  was  actually  neces- 
sary on  the  part  of  the  wife.  And  see 
preceding  note.  In  Shelton  v.  Pendleton, 
18  Conn.  417,  where  A,  the  wife  of  B, 
without  his  assent  in  foct,  employed  C,  an 
attorney  and  counsellor  at  law,  to  prose- 
cute, on  A's  behalf,  a  petition  to  the  su- 
perior court  against  B,  for  a  divorce  from 
him,  for  a  legal  and  sufficient  cause,  with 
a  prayer  for  alimony,  and  the  custody  of 
the  minor  children,  and  C  performed  ser- 
vices and  made  disbursements,  in  the  pros- 
ecution of  such  petition,  which  was  fully 
granted,  and  thereupon  brought  his  action 
against  B  for  a  reasonable  remuneration  ; 
it  was  held,  1st,  that  the  facts  in  the  case 
showed  that  C  looked  for  payment  and 
gave  credit  to  A  alone  ;  2d,  that  the  ser- 
vices and  disbursements  in  question  were 
not  necessaries,  for  which  B  as  the  husband 
•of  A  was  liable  ;  3d,  that  C's  claim  de- 
rived no  strength  from  the  f;ict  that  to  the 
petition  for  a  divorce  was  appended  a 
prayer  for  alimony  and  the  custody  of  the 
minor  children  ;  4th,  that  consequently  C 
was  not  entitled  to  recover.  Church,  C.  J., 
commenting  on  the  case  of  Shepherd  v. 
Mackoul,  said  :  "  The  common  law  de- 
fines necessaries  to  consist  only  of  neces- 
sary food,  drink,  clothing,  washing,  phj'sic, 
instruction,  and  a  competent  place  of  resi- 
dence. And  we  know  of  no  case  which 
has  professed  to  extend  the  catalogue  of 
necessaries,  unless  it  be  Shepherd  i\  Mac- 
koul, 3  Camp.  326.  That  was  an  action 
by  an  attorney  to  recover  of  a  husband  a 
"bill  for  assisting  his  wife  to  exhibit  articles 
of  the  peace  against  him.  And  Lord  El- 
lenborough  said,  that  the  defendant's  lia- 
4iility  would  depend  upon  the  necessity  of 
the  measure  ;  and  if  tliat  existed  she  might 
•charge  her  husband  for  the  necessary  ex- 
pense, as  much  as  for  necessarj'  food  or 
raiment.  It  is  manifest  that  the  court 
considered  that   case   as   falling  literally 

[316] 


within  the  established  doctrine  of  the  com- 
mon law  on  this  subject  —  the  necessity  of 
pi'eserving  the  life  and  health  of  the  wife. 
The  duty  of  providing  necessaries  for  the 
wife  is  strictl}'  marital,  and  is  imposed  by 
the  common  law,  in  reference  only  to  a 
state  of  coverture,  and  not  of  divorce.  By 
that  law,  a  valid  contract  of  marriage  was 
and  is  indissoluble,  and  therefore  by  it  the 
husband  could  never  have  been  placed  un- 
der obligation  to  provide  for  the  expenses 
of  its  dissolution.  Such  an  event  was  a 
legal  impossibility.  Necessaries  are  to  be 
provided  by  a  husband  for  his  wife,  to  sus- 
tain her  as  his  wife,  and  not  to  provide  for 
her  future  condition  as  a  single  woman,  or 
perhaps  as  the  wife  of  another  man.  It 
was  on  this  principle  that  the  aforesaid 
case  of  Shepherd  v.  Mackoul  was  decided; 
and  tlie  latter  case  of  Ladd  v.  Lynn,  2  M. 
&  W.  265,  in  which  it  was  holden  that  a 
husband  was  not  liable  for  expenses  in- 
curred by  the  wife  in  procuring  a  deed  of 
separation,  proceeded  upon  the  same  prin- 
ciple." 

(»)  Because  that  is  not  necessary. 
Grindell  v.  Godmond,  5  Ad.  &  El.  755. 
Nor  for  the  counterpart  of  the  deed  of  sep- 
aration, procured  by  the  wife's  trustee,  un- 
less lie  expressly  promise  to  pay.  Ladd 
V.  Lynn,  2  M.  &  W.  265  ;  Coffin  r.  Dun- 
ham, 8  Cush.  404.  Nor  is  a  husband 
liable  to  an  attorney  for  professional  ser- 
vices rendered  to  the  wife  in  defending 
against  his  jjetition  for  a  divorce  for  her 
fault,  nor  on  her  petition  against  him  for 
his.  Wing  v.  Hurlburt,  15  Verm.  607 ; 
Dorsey  v.  Goodeuow,  Wright,  120.  And 
sec  Shelton  v.  Pendleton,  cited  in  the  pre- 
ceding note.  Nor  is  the  woman  herself 
liable,  unless  she  expressly  promise  to  pay 
them,  after  the  divorce.  Wilson  v.  Burr, 
25  Wend.  386.  If  there  is  evidence  of  an 
express  agreement  to  pay  such  bills,  the 
husband  may  then  be  liable.  Williams  v. 
Fowler,  1  McC.  &  Y.  269. 

(v)  Watson  y.  Threlkeld,  2  Esp.  637; 


CH.  XVII.] 


MARRIED   "WOMEN". 


*305 


wife,  to  a  tradesman  who  knew  that  they  were  not  married. (?r) 
The  ground  of  his  liability  is  not  that  he  deceived  persons  into 
an  erroneous  belief  that  she  was  his  wife,  but  that  after  volun- 
tarily treating  her  as  such,  and  so  inducing  persons  to  believe 
that  he  would  continue  to  treat  her  as  such,  he  cannot  recede 
from  the  liabilities  which  he  thus  assumes.  But  this  liability 
ceases  with  cohabitation  ;  he  is  not  responsible  for  necessaries 
supplied  to  her  afterwards,  even  where  they  had  lived  together 
a  long  time,  and  she  had  left  him  because  of  his  ill  conduct,  (x) 
*Proof  of  cohabitation  seems  to  be  sufCic'ient  prinid  facie  evi- 
dence in  an  action  against  husband  and  wife  for  her  debt  before- 
marriage,  (y) 


EoI)inson  v.  Nahon,  1  Camp.  245  ;  Blades 
V.  Free,  9  15.  &  C.  167;  Miinro  ?-.  I)c 
Clicinant,  4  Camp.  215  ;  Carr  v.  Kiiip,  12 
Mod.  .372;  Graham  r.  Bicttlc,  18  Law- 
Times  Eeps.  185. 

(«•)  Watson  r.  Tlirelkeld,  2  Esp.  6-37 ; 
Roliinson  '•.  Nalion,  1  Camp.  245;  llyan 
V.  Sams,  12  Q.  B.  400. 

(.»•)  Mmiro  r.  I)e  Chcmant,  4  Camp. 
215.  But  in  Ryan  r.  Sams,  12  Q.  B.  4G0, 
tlie  facts  were  that  tlie  deiendant  and  a 
Mrs.  S.,  liis  mistre.ss,  lived  to<i;other  as 
hushand  and  wife  four  years,  and  occu- 
j)ied  three  residences  successively.  At 
cadi  tinie  of  their  cominj;  into  a  house, 
plaintill'  was  emjdoyed  to  do  work  and 
furnish  materials  for  the  fittinjr  up.  Mrs. 
y.  as  well  :ls  tlie  defendant  irave  directions  ; 
ami  tlie  rk-femlant  sanctioi!C(l  lier  onlers 
and  paid  the  hills.  I'laiiititf  knew  that 
she  was  only  his  mistress,  ^\'llile  residing 
in  the  third  house  they  separated  ;  hut 
Mrs.  S.,  without  defendant's  sanction,  sent 
for  plaintiff  to  that  house,  which  she  had 
not  yet  left,  and  ordered  littinj^s  up  for  a 
new  house  of  her  own.  IMaintitf  did  the 
work,  and  had  not,  in  the  mean  time,  any 
notice  of  the  separation.  J/</i/,  in  an  ac- 
tion for  the  last-mentioned  work  and 
jfoods,  that  it  was  a  ])roper  (|uestion  for 
the  jury  whether  or  not  the  defendant  had 
piven  the  plaintiff  reason  to  helieve  that 
Mrs.  y.,  at  the  time  of  the  orders,  con- 
tinued to  he  defendant's  a<^ent ;  and  that, 
on  their  fiiidin;;  in  the  aflirniative,  the  de- 
feiulant  was  liahle.  Lorcl  / >i  niiinii,  C.  J.  : 
"  In  Mumo  v.  l)e  Cheniant,  4  Camp. 
215,  it  may  he  presumed  that  the  parties 
liad  lived  lonj^  separate  ;  and  it  is  consist- 
ent witii  the  statement  there  that  Ix)rd 
Ellenhorough  may  have  noticed  that  cir- 

27* 


cumstance  as  important  if  the  parties  were 
not  man-ied,  but  told  the  jury,  '  if  you ; 
think  they  are  proved  to  have  been  man 
and  wife  the  case  will  be  ditt'erent.'  And 
the  order  there  seems  to  have  commenced' 
a  new  account.  Here  the  defendant  sane-- 
tions  orders  to  the  plaintiff  in  the  name  of 
Stanley,  while  the  person  in  question  is- 
living  with  liim  under  that  name,  and  she 
afterwards  f^ives  orders  to  tlic  jiiaintifY  in 
the  same  name,  circumstances  apparently 
continuing  unaltered.  It  would  be  un- 
reasonable to  expect  more  evidence  in  such, 
a  case."  And  in  Blades  v.  Free,  9  B.  & 
C.  1G7,  where  a  man  who  had  for  some 
years  cohabited  with  a  woman  that  passed 
for  his  wife,  went  abroad,  leaving  her  and 
her  family  at  his  residence  in  this  country, 
and  died  abroad,  it  was  held,  that  the 
woman  might  have  the  same  authority  to 
bind  him  by  her  contracts  for  necessaries 
as  if  she  had  been  his  wife  ;  but  tliat  his 
executor  was  not  bound  to  pay  for  any 
goods  sii])plied  to  her  after  his  death, 
alihough  before  information  of  his  death 
had  been  received. 

(//)  Tracey  v.  McArlton,  7  Dowl.  P.  C. 
5.32.  And  see  Norwood  r.  Stevenson, 
Andrews,  H.  227.  But  to  be  liable  for  the 
wife's  torts  committed  before  coverture,  a 
marriage  ili'  fhrto  is  not  sufficient ;  and  a 
man  with  whom  a  woman  already  married 
contracts  matrimony,  her  first  and  lawful 
husband  still  living,  is  not  responsible  for 
her  torts  committeil  before  coverture. 
Overholt  v.  Ellswell,  1  Ashin.  200.  And 
the  same  reasoning  would  seem  to  apply 
to  her  debts  contracted  befoix'  coverture. 
And  a  husband  is  not  lial)le  for  the  debts 
of  his  wife  dinn  .tola,  unless  the  wife  her- 
self was  liable  for  them  at  the  time  of  her 

[317] 


306* 


THE  LAW   OF   CONTRACTS. 


[book  I. 


In  England,  it  has  been  decided,  that  if  a  marriage  has  taken 
place  de  facto^  the  husband  cannot  defend  against  an  action 
brought  on  promises  made  by  the  wife  before  coverture,  by 
showing  that  the  marriage  was  illegal,  and  therefore  void,  be- 
cause only  the  spiritual  courts  can  take  cognizance  of  such 
questions,  [z)  But  in  this  country,  as  we  have  no  such  courts, 
the  defence  could  not  be  objected  to  on  these  grounds. 

In  England,  a  married  woman,  trading  independently  of  her 
husband  within  the  city  of  London,  may,  by  the  "  custom  of 
London,"  sue  and  be  sued  as  a  feme  sole,  with  reference  to 
such  dealings  of  trade,  [a)  But  even  there  the  husband  should 
be  made  a  party  to  the  suit,  {b)  though  she  will  be  treated  as 
the  substantial  party.  Elsewhere  in  England  she  can  act  as  a 
single  woman  only  when  the  legal  existence  of  her  husband 
may  be  considered  as  extinguished,  wholly  or  for  a  definite 
period  ;  as  in  case  of  outlawry,  abjuration  of  the  realm,  or 
transportation  *for  life,  or  for  a  limited  term,  (c)  In  this  coun- 
try, however,  in  part  by  statute,  as  in  Pennsylvania  and  South 
•Carolina,  [d)  and  in  part  by  the  decisions  of  the  courts,  the  law 


marriage.  Caldwell  v.  Drake,  4  J.  J. 
Marsli.  247. 

(z)  Norwood  v.  Stevenson,  Andrews, 
227. 

(m)  Bac.  Abr.  Baron  and  Feme,  (M.) 

\h)  Caudell  v.  Sliaw,  4  T.  K.  361  ; 
Beard  v.  Webb,  2  B.  &  P.  93 ;  Starr  v. 
Tavlor,  4  MeCord,  413 ;  Laughan  v. 
Bewett,  Cro.  Car.  68. 

(c)  Marshall  v.  llutton,  8  T.  R.  545. 
And  a  married  woman  cannot  there  be 
Bued  on  her  contracts,  although  she  live 
apart  from  her  husband  in  a  state  of  adul- 
tery, and  there  exist  a  valid  divorce  a 
mensa  et  thoro,  and  she  contract  during 
such  separation  in  the  assumed  ciiaraeter 
-of  a  single  woman.  Lewis  r.  Lee,  3  B.  & 
C.  291,  5  D.  &  R.  98;  Faithorne  v.  Bla- 
quire,  6  M.  &  S.  73  ;  Turtle  v.  Worsley, 
.3  Doug.  290.  But  see  Cox  i\  Kitchin,  1 
B.  &  F.  338.  Neither  is  her  personal  rep- 
resentative liable  under  such  circumstan- 
ces, although  he  have  abundant  assets. 
Clayton  r.  Adams,  6  T.  R.  604.  But  if 
the  legal  existence  of  the  husband  is  con- 
sidered as  extinguished,  the  wife  may  con- 
tract as  a  feme  sole.  Lady  Belknap's 
case,  Year  Book,  1  Hen.  4,  1,  a  ;  Lean  v. 
.Shutz,  2  Bl.  1197  ;  Marsh  v.  Hutchinson, 

[318] 


1  B.  &  P.  231  ;  Ex  parte  Franks,  7  Bing. 
762,  1  M.  &  Scott,  1  ;  Carrol  v.  Blencow, 
4  Esp.  27  ;  Stretton  v.  Busnach,  1  Bing. 
N.  C.  140. 

(<I)  In  Pennsylvania  and  South  Caro- 
lina a  wife  may  become  a  sole  trader,  and 
become  liable  as  such,  in  imitation  of  the 
custom  of  London.  Stan-  v.  Taylor,  4 
McCord,  413  ;  Newbiggan  v.  Pillans,  2 
Bay,  162;  McDowall  v.  Wood,  2  N.  & 
McC.  242 ;  Burke  r.  Winkle,  2  S.  &  R. 
189;  Jacobs  v.  Featherstone,  6  W.  &  S. 
346.  She  must,  however,  in  order  to  have 
the  privilege  of  contracting  as  a  feme  sole, 
be  technicallv  a  trader.  Mc  Daniel  v. 
Cornwell,  1  Hill,  (So.  Car.)  428.  The 
privilege  does  not  extend  to  a  woman  who 
is  a  common  carrier.  Ewart  r.  Nagel,  1 
McMullan,  50.  Nor  to  one  who  was  sep- 
arated from  her  husband,  and  supported 
herself  by  her  daily  labor.  Robards  v. 
Hutson,  3  McCord,  475.  Keeping  a  shop 
as  a  milliner  brings  her  within  the  privi- 
lege. Surtell  V.  Brailsford,  2  Bay,  333. 
But  her  privilege  to  contract  as  a  feme  sole 
extends  no  further  than  to  such  contracts 
as  arc  connected  with  her  trade.  McDow- 
all ('.  Wood,  2  N.  &McC.  242.  And  see 
Wallace  v.  Rippon,  2  Bay,  112. 


CH.  XVII.] 


MARRIED    WOMEN. 


-306 


is  much  more  reasonable,  and  a  married  woman  may  act  as  if 
unmarried,  under  many  circumstances  ;  as  for  continued  aban- 
donment, (e)  alienage,  and  non-residence,  or  the  privity  and 
acquiescence  of  the  husband,  although  not  expressed  by 
deed.(/) 


(e)  If  the  husband  is  banished,  then,  as 
we  have  seen,  by  tlie  laws  of  Eii;^land  and 
of  tills  countrv,  a  wife  may  contract  as  a 
feme  sole.  Wrij.dit  v.  Wri";:ht,  2  Des.  244. 
And  the  law  is  the  same  whether  he  is 
banislied  for  his  crimes,  or  has  voluntarily 
abandoned  his  wife.  Rhea  v.  Renner,  1* 
Peters,  105;  Chapman  c.  Lemon,  11  How. 
Rr.  Reps.  235.  The  voluntary  absence  of 
the  husband,  however,  must  be  more  than 
temporary  in  order  to  have  this  efiect. 
Rol)inson  v.  Reynolds,  1  Aikens,  174; 
Grejiory  v.  Pierce,  4  Met.  478;  Common- 
wealth V.  Collins,  1  Mass.  116  ;  Chouteau 
I'.  Merry,  3  Missouri,  254.  If  it  amount 
to  alisolute  and  complete  desertion,  tlien 
it  nuiy  be  sufficient.  C-dscs  supra.  Whether 
the  imprisonment  of  the  husband  for  life, 


or  a  term  of  years,  in  our  State  prisons, 
will  have  the  same  effect,  is  more  doubt- 
ful. See  21  Am.  Jur.  8  ;  1  Swift's  Dip. 
36;  Cornwall  r.  Iloyt,  7  Conn.  427.  If 
the  husband  is  an  alien,  and  never  resided 
in  this  country,  the  wife  may  sue  and  be 
sued  as  a  feme  sole.  Kay  v.  Duchess  de 
Picnne,  3  Camp.  123  ;  Deerly  v.  Mazarine, 
1  Sulk.  116  ;  Robinson  r.  Revnolds,  1  Aik. 
174;  De  Gaillon  r.  L'Ainfe,  1  B.  &  P. 
356,  com|)ared  with  Farrer  r.  Granard,  4 
B.  &  P.  80.  But  this  rule  is  qualified  in 
Bardcn  r.  Kevcrlierfr,  2  M.  &  \V.  61,  in 
whicli  it  is  held  that  she  is  responsilde  only 
if  she  represents  herself  as  a  feme  sole,  or 
the  ])laintitt"has  know  ledjre  of  the  facts. 
(/)  McGrath  1-.  Robertson,  1  Des.  445. 


4 


NOTE 


[We  refer  to  this  note  in  the  last  p.iragraph  but  one  of  the  first  section  of  this  chapter.] 


In  nearly  all  the  States  a  married  woman  conveys  her  own  real  estate  and 
releases  dower  by  joininj;;  in  a  deed  with  her  husband  ;  but  .she  is  not  generally 
bound  by  covenants  therein,  and,  in  many,  must  i)e  separately  examined.  In  most, 
she  has  a  certain  time,  after  removal  of  the  disability  of  coverture,  to  assert  her 
diircrent  ri;xhts,  otherwise  barred.  Generally,  devises  or  conveyances  to  husband 
and  wife  create  a  joint-tenancy,  unless  the  terms  of  the  devise  or  conveyance  are  ex- 
pressly otherwise.  And  generally,  u])on  the  marriage  of  a  feme  sole  plaintiff"  or  de- 
iendaut,  the  suit  docs  not  abate,  but  the  husband  may  be  admitted  to  prosecute  or 
defend  with  her. 

In  M.\i\K,  a  married  woman  holds  as  her  separate  property  whatever  she  pos- 
sessed liefore  marriage,  and  whatever  comes  to  her  after  marriage,  ludess  pur- 
chased by  the  husband's  money  or  coming  from  him  so  as  to  defraud  his  creditors. 
Acts  of  1844,  ch.  117;  Public  Acts  of  1847,  ch.  27,  and  has  all  the  usual  rights 
of  a  single  woman  as  to  it.  Acts  of  1848,  ch.  73;  R.  S.  ch.  115,  ^  82  ;  Acts  of  1855, 
ch.  120,  but  cannot  convey  property  received  through  the  husband  or  his  rela- 
tives unless  he  join.  Acts  of  1856,  ch.  2.50.  Her  property  is  alone  liable  for  her 
dct)ts  before  marriage.  Acts  of  1852,  ch.  291.  Although  under  twenty-one  years, 
she  is  of  full  age.  Id.  There  are  provisions  as  to  a  married  woman  lieing  ad- 
ministratrix, or  executrix,  R.  S.  ch.  106,  ^35;  guardian,  R.  S.  ch.  110,  ij  24;  in- 
sane, id.,  ch.  112,  §  1 ;  Acts  of  1853,  ch.  6;  whose  husbaud  is  under  guardianship, 

[319] 


306-  THE   LAW   OP   CONTRACTS.  [bOOK  I. 

Acts  of  1853,  ch.  33;  and  the  homestead,  to  the  value  of  $500  is  not  liable 
for  his  dchts,  and  goes  to  his  widow  and  minor  children.  Acts  of  1850,  ch.  207. 
It  is  helieved  tliat  the  provisions  for  the  wife  upon  abandonment  by  the  husband, 
(R.  S.  ch.  87,)  are  superseded  by  the  above  provisions. 

In  New  Hampshire,  after  three  months  of  desertion,  or  of  any  other  thing  which 
if  longer  continued  will  be  a  cause  of  divorce,  the  wife  may  hold  in  her  several  right, 
and  dispose  of  property  acquired  by  her  in  any  way,  and  the  earnings  of  the  minor 
children,  until  the  desertion  ceases.  And  tlie  judge  of  probate  in  the  county  where  she 
resides,  may  order  provision  for  her  and  her  cliildren  from  any  propeity  of  the  hus- 
band in  the  State.  She  shall  then  have  the  same  rights,  and  her  property  shall  de- 
scend, as  if  single.  The  wife  of  an  alien  or  citizen  of  another  State,  who  has  resided  in 
New  IIami)shire  separate  from  her  husband  for  six  months,  has  the  same  rights  and 
powers  as  if  her  husband  were  deceased,  except  that  she  cannot  marry.  And  there 
are  provisions  for  tiie  case  of  a  luisband  becoming  a  citizen  of  tiie  State,  and  for  a 
divorce,  and  as  to  minor  children  ;  for  ]iartition  of  a  wife's  real  estate,  held  by  her  as 
joint-tenant,  and  for  joining  with  his  guardian  in  conveying  property.  Compiled  St., 
(1853)  cli.  158.  The  will  of  the  married  woman  passes  property  held  in  her  right,  to 
any  devisee  except  the  husband ;  but  shall  not  affect  his  tenancy  by  the  courtesy.  Laws  of 
1854,  ch.  1522.  By  antenuptial  contract,  she  may  hold  any  real  or  personal  property 
in  her  own  right.  And  any  conveyance,  devise,  or  bequest  to  a  married  woman  to  her 
sole  use,  or  coming  to  her  under  a  deed  of  trust,  (except  a  direct  conveyance  from  the 
husband,)  is  valid,  and  she  is  as  an  unmarried  woman  as  to  such  property,  and  her 
rights  &c.,  in  or  out  of  court.  If  she  die  intestate,  such  personal  property  goes  to  her 
husband,  suliject  to  her  debts.  He  must  take  administration,  aiul  is  entitled  to  the 
courtesy.  Com.  St.,  ch.  158,  §§  12-17.  The  homestead,  to  the  value  of  $500,  is 
exempt  from  attachment  and  execution,  and  is  in  no  way  liable  for  the  husband's  debts, 
nor  subject  to  distribution  or  devise,  while  a  widow  or  a  minor  child  lives  thereon. 
But  this  right  may  be  waived  by  deed  of  husband  and  wife,  and  is  not  valid  against 
a  claim  on  note  or  mortgage  of  husband  and  wife,  or  for  labor  less  than  $100,  or  a  lien 
by  the  seller  of  the  estate  for  its  price,  or  a  debt  contracted  for  the  erection  of  the  build- 
ings, or  for  taxes.    Com.  St.  ch.  196. 

In  Vermont,  in  ca^e  of  desertion,  the  Supreme  Court  may  authorize  a  wife  of 
eighteen  years  of  age,  to  convey  her  real  estate,  and  the  personal  estate  which  came  to 
her  husband  through  her,  if  in  the  State  and  undisposed  of  by  him  ;  and  require 
any  one  owing  her  husband  money  in  iier  right  to  pay  it  to  her ;  and  the  proceeds, 
and  iicr  own  earnings,  and  those  of  her  minor  children  shall  be  held  by  her  for  her  own 
use.  If  the  real  estate  of  a  wife  be  taken  for  public  use,  the  damages  are  to  be  secured 
to  her  benefit.  The  wife  of  a  man  under  guardianship  may  join  with  the  guardian  iu 
making  partition,  &c.,  of  a  man  confined  in  the  State  prison  is  as  a  feme  sole  as  to 
suits  for  causes  arising  after  his  sentence.  Married  women  may  devise  by  will  their 
inheritable  real  estate.  The  rents,  &c.  of  all  her  real  estate,  and  her  husband's  interest 
in  it,  shall  be  exempt  from  attachment  or  execution  for  his  sole  debts,  nor  can  he  con- 
vey them  without  her.  She  may  insure  the  life  of  her  husband  for  her  own  use,  if  the 
premium  do  not  exceed  $300.  Compiled  Statutes  (1850),  ch.  68.  The  homestead  pro- 
vision is  substantially  similar  to  that  of  New  Hampshire.  Id.,  ch.  65  ;  Acts  of  1851, 
No.  29. 

In  Mass.vciiusetts,  provisions  exist  for  the  benefit  of  the  wife  when  deserted  by 
the  husband,  (R.  S.  ch.  77,)  to  a  great  extent  superseded  by  the  Laws  of  1855,  ch.  304, 
post.  A  married  woman  coming  into  the  State,  whose  husband  never  lived  with  her 
in  the  State,  lias  the  same  rights  as  a  single  woman  in  matters  of  contract  and  suit. 
R.  S.  ch.  77,  §  18;  Gregory  v.  Paul,  15  Mass.  31  ;  Abbot  v.  Bayley,  6  Pick.  89. 
Antenuptial  contracts  in  favor  of  the  wife  arc  valid,  and  she  may  receive  any  convey- 
ance (except  from  her  husband),  bequest,  or  devise  to  her  own  use,  without  a  trustee, 
and  has  all  the  powers  i-especting  it  a  trustee  would  have,  and  is  liable  for  any  con- 
tract made  or  wrong  done  before  marriage.  Laws  of  1845,  ch.  208.  A  woman  mar- 
ried after  June  4,  1855,  holds,  as  a  single  woman  might,  all  property  held  before 
marriage  or  subsequently  acquired,  except  by  gift  from  her  husband  ;  but  cannot  con- 
vey real  estate  (except  for  a  term  not  exceeding  one  year)  nor  shares  in  a  corporation, 
without  the  written  assent  of  her  husband,  or  the  consent  of  a  judge  of  the  Supreme 
Court,  Court  of  Common  Pleas,  or  Prol)atc,  nor  bequeathe  away  from  her  husband 
more  than  half  her  personal  estate,  without  liis  consent  in  writing,  and  her  property  is 

[320] 


en.   XVn.]  MARRIED   WOMEN.  -306 

alone  liable  for  her  antenuptial  debts.  Any  married  woman  may  dispose  by  will  of 
her  real  estate,  but  cannot  thereby  deprive  lier  husband  of  his  tenancy  by  conrtcsy ; 
and  her  real  estate  and  shares  in  a  corporation  are  not  liable  for  his  debts  contracted 
since  June  4,  1855.  And  any  married  woman  may  be  a  sole  trader.  Laws  of  1855, 
ch.  304.  There  are  also  provisions  as  to  guardianship,  R.  S.  ch.  77,  79,  and  insanity, 
Laws  of  1855,  ch.  23.3  ;  1856,  ch.  99,  1(39.  A  homestead  to  the  value  of  S500,  is  not 
liable  for  the  debts  of  a  householder,  but  after  his  death  is  for  the  benefit  of  his  widow 
and  family,  for  her  life  and  while  any  child  is  a  minor,  provided  it  be  desijrnated  in 
the  deed  of  purchase  as  a  homestead  under  this  act,  or  if  already  purchased,  be  so 
declared  in  a  deed  acknowIed<red  and  recorded,  and  is  safe  only  from  debts  con- 
tracted after  the  record,  and  is  not  exempt  from  taxes,  debts  incurred  by  purchase,  and 
debts  for  ground-rent  of  land  upon  which  it  is  situated.  This  exemption  shall  not 
defeat  any  lien  or  incumbrance  existing  when  the  law  was  passed.  A  hus])and  can- 
not convey  such  homestead  without  his  wife  joins  in  the  deed.  Laws  of  1851,  ch. 
340. 

In  Rhode  Island,  there  is  provision  substantially  like  that  in  Massachusetts  as  to 
a  married  woman  coming  into  the  State  without  her  husband,  and  there  living  without 
him.  Public  Laws  of  R.  I.,  1841-2,  p.  2056.  lieal  estate  of  a  wife,  who  is  a  citizen 
of  the  United  States,  and  whose  husband  is  an  alien,  descends  to  her  children.  Acts 
and  Resolves,  May  Session,  1853,  p.  16.  Any  married  woman  may  disjjose  of  her 
real  estate  by  will,  but  not  to  deprive  her  husband  of  his  tenancy  by  the  courtesy. 
Acts  &  Res.,  January  Session,  1856,  p.  68.  Her  deposits  in  an  institution  for 
savings  are  her  own  jjroperty,  id.  p.  73  ;  and  any  insurance  for  the  life  of  any  one 
for  iier  benefit,  if  the  ])remiuin  does  not  exceed  $300,  is  hers,  independently  of  her  hus- 
band and  his  creditors.   rul)lic  Laws,  1846-8,  p.  715. 

k  Connecticut,  the  husband's  interest  in  wife's  real  estate  cannot  be  tJikenforhis 
S  during  her  life  or  that  of  her  children.  Compiled  St.  (1854,)  Tit.  7,  c.  1,  §  7  ; 
so  of  her  wages.  Id.  §  8.  All  real  estate  conveyed  to  her  during  marriage,  paid  for  by 
money  earned  by  her  personal  service,  is  hers  to  her  sole  use.  Compiled  St.,  p.  377. 
And  the  proceeds  of  her  real  estate  are  hers,  in  equity,  and  not  liable  for  his  debts. 
rublic  Acts  of  1850,  c.  xxxi.,  Comp.  St.  p.  377.  Personal  estate  coming  to  tlie  hus- 
band in  the  right  of  the  wife,  or  through  her  as  the  meritorious  cause,  is  held  by  him 
as  trustee  for  her  use,  Comj).  St.  Tit.  7,  c.  1  ;  Public  Acts  of  1849,  c.  20,  ^  1  ;  ex- 
cepting so  far  as  he  has  jiaid  her  debts  contracted  before  marriage,  Pui)lic  Acts  of 
1855,  c.  43,  fj  1  ;  and  he  may  be  re(iuired  to  give  bonds  as  such  trustee,  or  be  removed 
and  another  appointed.  Cnmiiilcd  St.  Tit.  7,  c.  1.  There  are  also  provisions  as  to 
executors,  guardians,  ii:c.  Public  Acts  of  1856,  c.  37,  §§1,2,  3.  Her  receipt  for 
money  de|io.-ited  by  her  in  any  bank  or  savings  bank  is  valid.  Compiled  St.  Tit.  7,  c. 
1,  §  9.  Policies  of  insurance  on  life,  for  her  benefit,  if  the  premium  does  not  exceed 
$1.50,  or  is  paid  from  her  private  property,  are  secured  to  her.  Id.  )).  378.  All  per- 
sonal property  coming  to  her  duriTig  his  abandonment  of  her,  or  their  sej)arati()n  from 
his  al)use  or  intemperance,  is  hers  alone;  and  he  thereby  loses  all  control  of  all  her 
property.  Public  Acts  of  1850,  c.  xxxiii.,  §  2.  During  the  abandonment,  she  may 
act  as  a  sole  trustee,  ami  after  it  has  continued  three  years,  may,  with  leave  of  court, 
execute  deeds  of  her  real  estate.    Pui)lie  Acts  of  1856,  c.  36,  §  1. 

In  New  York,  all  a  married  woman's  real  and  personal  estate,  whether  acquired 
before  or  after  maniage,  if  not  from  her  husband,  may  be  held  by  her  for  her  own  use, 
and  is  not  liable  for  his  debts  nor  subject  to  his  control.  Rev."  Stats,  of  New  York, 
Part  II.  c.  8,  Tit.  1,  art.  6,  §§  65-67,68.  Power  of  disposal  may  be  given  her  in  any 
conveyance  or  devise  to  her,  and  she  may  execute  them  without  the  husband's  concur- 
rence,'!'. II.  c.  1,  Tit.  2,  art.  3,  §§  93,  lOo]  103,  unless  their  terms  require  that.  Id.  §  123. 
Rut  she  must  aeknowleilge  it  i)rivately,  as  she  must  also  in  eases  of  conveyance.  Id. 
§  1.30.  The  husband  may  administer  on  her  estate,  and  is  liable  for  her  debts  to  tho 
extent  of  assets  ivccivcd  from  her  i)ro|)erty,  and  is  liable  for  the  whole  if  he  does  not 
take  out  letters.  P.  II.  c.  6,  Tit.  2,  art.  2,  §  29.  Antenuptial  contracts  are  valid.  P.  II. 
c.  8,  Tit. 1,  art.  6,  §  69.  Insurances  of  life  for  her  beiu'fit,  are  secured  to  her  if  the  premium 
does  not  exceed  S.WO.  Id.  §  70.  Her  receipt  ij  valid  for  her  deposits  in  any  bank. 
Id.  §  73.  She  may  vote  by  proxy  in  corporations,  of  whieh  siie  is  a  memlHM%  except 
mutual  fire  insurance  companies.  Id.  §  74.  She  may  have  the  custody  of  minor  chil- 
dnn  by  order  of  court.  Id.  Tit.  2.  In  an  action  between  herself  and  her  husband, 
she  may  sue  and  be  sued  alone.  Id.  P.  II.  c.  4,  Tit.  3,  §  114.  Only  her  separate 
estate  is  liable  for  her  debts  before  marriage.     Public  Acts  of  1853,  c.  5^6,  §§  1,2. 

[321  J 


306-  THE   LAW   OF   CONTRACTS.  [bOOK  I. 

In  Nkw  Jersey,  her  property,  real  or  personal,  acquired  before  or  after  mamage, 
is  free  from  the  husband's  control  or  debts.  Public  Acts  of  1852,  p.  407.  Antenup- 
tial contracts  arc  valid.  Id.  Any  insurance  of  life  for  her  benefit  is  secured  to  her 
or  her  children,  if  the  premium  does  not  exceed  $100.  Public  Acts  of  1851,  p.  34. 
If  her  husband  dies,  she  may  recover  from  his  estate  the  jieisonal  property  belonging 
to  her  before  marriage.  Public  Acts  of  1851,  p.  201.  If  she  dies,  her  husband  may 
administer,  and  retain  her  personal  property.  Rev.  Stat.  Tit.  10,  c.  7,  §  15  ;  Adm'rs 
of  Donnington  v.  Adm'rs  of  Mitchell,  1  Green's  CIi.  24-3.  If  he  abandon  6r  desert 
her,  she  may  have,  by  order  of  court,  maintenance  from  his  property  ;  but  during  this 
ra  untenance,  he  is  not  liable  for  her  debts.  Rev.  Stat.  Tit.  33,  c.  3,  §  10.  She  can- 
not dispose  of  real  estate  by  will.  Rev.  Stats.  Tit.  10,  c.  10,  §  3.  If  the  husband  dies 
leaving  a  family,  liis  household  goods  to  the  value  of  $200,  and  real  estate  occupied 
by  him  at  liis  death,  to  the  amount  of  $1,000,  are  secured  to  his  widow  and  children ; 
and  no  waiver  of  this  exemption  is  valid.  Public  Acts  of  1851,  p.  278,  §  4  ;  Public 
Acts  of  1852,  p.  222,  §  1.  Nor  can  such  homestead  be  sold,  or  encumbered,  unless 
other  $1,000  arc  invested  in  other  buildings  for  a  homestead;  and  until  this  invest- 
ment, the  title  of  the  purchaser  is  not  good.     Id.  §  7. 

In  Pennsylvania,  the  wives  of  mariners  and  others  at  sea  may  trade  as,  and  have 
gencrallj',  the  riglits  of  femes  sole.  Dimlop's  Laws  of  Penn.  (3d  ed.  1853,)  pp.  75,  76. 
The  husband  administers  upon  his  deceased  wife's  estate,  and  she  generally  upon  his. 
Id.  pp.  461,  462.  If  money  is  awarded  to  a  married  woman  upon  distribution,  or  on 
partition  or  sale  of  her  real  estate,  it  must  be  secured  to  her  benefit.  Id.  pp.  483, 484, 
982.  She  retains  all  property  owned  before,  or  obtained  after,  marriage,  free  from  the 
control  or  debts  of  her  husliand.  But  he  is  not  liable  for  her  antenuptial  del)ts.  Her 
property  is  liable  for  her  debts  and  torts,  and  execution  must  first  be  had  against  it. 
And  she  may  dispose  of  it  by  will.  Id.  pp.  996,  997  ;  Lancaster  Co.  Bank  v.  Stauiier, 
10  Penn.  St.  398;  Lefever  r.  Witmcr,  id.  505;  Cummings' Appeal,  11  id.  2lfe  ;* 
Goodyear  u.  Ruml)augh,  13  id.  480,  S.  C.  Law  Journ.  July  29,  1850.  But  (except 
in  case  of  property  held  in  trust  for  her  separate  use  by  virtue  of  the  terms  of  a  deed 
or  will)  her  power  to  bequeathe  is  restricted  so  that  her  surviving  husband  may  elect  to 
take  such  interest  in  her  property  as  she,  surviving,  could  elect  to  take  in  his  ;  or  else 
his  estate  by  the  courtesy.  Laws  of  1855,  No.  456,  p.  4.30.  She  may  sue  alone  for 
her  money,  or  perhaps  with  her  husband,  Goodj'car  v.  Rumbaugh,  supra,  and  with 
her  husband  for  her  estate,  a  recovery  to  be  for  her  benefit,  Dunlop's  Laws,  p.  1099  ; 
or  maintain  trespass  for  injury  to  her  property,  though  he  dissents,  and  he  cannot  sue 
therefor  alone.  Goodyear  v.  Rumbaugh,  supra.  Marriage  docs  not,  even  with  her 
consent,  dissolve  her  testamentary  guardianship.  Cummings'  Appeal,  supra.  His 
property  is  first  liable  for  necessaries  ;  for  want  of  it,  the  wife's.  Dunlop's  Laws,  p. 
997.  He  retaiiis  his  estate  by  the  courtesy,  id. ;  but  as  to  when  it  is  liable  to  his 
creditors,  see  id.  p.  1093  ;  Lancaster  Co.  Bank  v.  Stauffer,  supi-a  ;  Lefever  v.  Witmer, 
supra.  A  trustee  may  be  appointed  of  a  married  woman's  property,  and  she  may  de- 
clare trusts.  Dunlop's  Laws,  p.  1096.  There  are  also  provisions  by  which  claims  for 
personal  injury  to  the  husband  survive  to  the  widow,  id.  p.  1145  ;  by  which  married 
women  may  loan  to  their  husbands,  id.,  and  for  insanity  of  wife.  Id.  p.  1170.  If 
the  husbanil  does  not  provide  for  his  wife,  or  deserts  her,  she  has  the  rights  of  a  feme 
sole;  and  if  intestate  her  property  descends  as  if  he  had  previously  died.  Laws  of 
1855,  No.  456,  p.  430.  In  such  case,  or  if  divorced  a  mensa  et  thoro,  she  may  maintain 
an  action  for  slander  or  libel,  and  may  recover  her  separate  earnings  and  projicrty ; 
but  if  her  husband  is  defendant,  in  the  name  of  her  next  friend.  Laws  of  1856,  No. 
334,  p.  315.  If  of  lawful  age,  and  entitled  to  a  legacy,  &c.,  she  may  execute  a  refund- 
ing bond  and  other  instruments  to  an  executor  or  administrator.     Id. 

in  Delaware,  the  widow  of  one  who  made  Iiis  will  before  marriage,  takes  the  same 
share  as  if  he  died  intestate.  Rev.  St.  c.  84,  §  23.  Insurance  on  life  for  her  benefit 
is  secured  to  her,  if  the  premium  do  not  exceed  $150.  Id.  c.  76,  §  3.  If  her  husband 
abandon  her,  the  court  may  provide  for  the  support  of  herself  and  her  children  out  of 
his  property.  Id.  c.  48,  §  15.  She  cannot  make  a  power  of  attorney.  Id.  c.  83,  § 
13. 

In  Maryland,  if  a  married  infant  unite  with  her  husband  in  a  conveyance  to  release 
dower,  courts  of  equitj'  may  declare  it  valid  if  equitable.  Dorsey's  Laws  of  Md. ;  Pub- 
lic Acts  of  1832,  C.302,  s^  7.  She  cannot  be  executrix  or  administratrix  unless  her 
husband  give  a  bond.  Id. ;  Public  Acts  of  1798,  c.  101,  Sub.  c.  4,  §  8,     Her  choses  in 

[322] 


I 


CH.  XYII.]  MARRIED    WOMEN  -306 

action,  at  her  flcath,  become  her  husband's  without  his  takinj;;  out  letters  of  adminis- 
tration. Id.  Sul>.  c.'5,  §  8.  An  alien  wife  of  a  eitizen  husband  residing  in  the  United 
States,  has  her  dower,  and  may  hold  hinds  by  purchase  and  transfer  the  same  as  if 
a  citizen.  Id. ;  rnblic  Acts  of  181.3,  c.  100.  Any  devise  or  bequest  to  her  is  con.sti-ucd 
to  be  in  bar  of  her  dower,  unless  otherwise  expressed.  Id. ;  Public  Acts  of  1798,  c. 
101,  Sub.  c.  13,  §§  1,3.  Insurance  on  life  is  secured  to  her,  if  the  premium  do  not 
exceed  $300.  Public  Acts  of  1840,  c.  212.  Her  receipt  for  money  deposited  before 
her  marriage  in  any  bank,  is  valid,  if  no  creditor  of  the  husband  has  previously  at- 
tached it.     Public  Acts  of  1853,  c.  .33.5. 

In  Virginia,  the  husband  of  an  insane  wife  may  make  a  deed  to  bar  her  right  of 
dovs-er  on  leave  of  court ;  but  the  same  interest  in  the  proceeds  shall  be  secured  to  her. 
Code  of  Virginia,  Tit.  30,  c.  128,  §  11.  If  the  husband  die  intestate,  and  without 
issue  by  her,  she  has  the  slaves  and  jicrsonal  jiroperty  which  he  had  from  or  with  her, 
and  which  he  has  not  disposed  of,  if  his  other  personal  estate  suttices  to  pay  his  debts. 
Id.  Tit.  33,  c.  123,  §  10.  She  can  make  no  will  except  of  her  separate  estate,  or  by 
a  power  of  appointment.     Id.  Tit.  33,  c.  122,  §  3. 

In  Nonxii  Carolina,  a  marriage  settlement  or  contract  is  invalid  against  creditors, 
if  a  greater  value  is  secured  to  the  intended  wife  and  children  of  the  marriage  than  is 
received  with  her  in  maiTiage,  and  the  estate  of  the  husband  free  from  debt,  at  tiie  time 
of  the  marriage.  In  case  of  suit,  the  burden  of  jiroof  is  on  the  person  claiming  uTider 
such  contract.  A  legacy  to  the  wife  in  general  words  and  not  in  trust,  or  a  distril)utive 
share  of  an  intestate  estate  falling  to  her  during  coverture  (if  the  estate  of  the  husliand 
and  wife  is  not  at  the  time  of  the  marriage  thus  sufficient)  is  taken  as  a  ])art  of  the 
portion  received  with  the  wife.  Revised  Code,  ch.  37.  Keal  estate  belonging  to  the 
wife  at  the  time  of  marriage  cannot  be  sold  or  leased  by  the  husband,  except  with  her 
consent,  ascertained  by  private  examination,  and  no  interest  of  the  husband  therein  is 
subject  to  execution  against  him.  Id.  ch.  56,  §  1.  The  proceeds  of  the  wife's 
land  sold  by  court  are  secured  to  her  or  her  representatives.  Id.  ch.  82,  §  7.  Pro- 
vision also  exists,  by  which  a  married  woman  may  insure  the  life  of  her  husband  for 
her  sole  benefit,  ch.  56,  ^  2.  Power  may  be  given  her  by  will,  deed,  &c.,  to  disjjo.se  by 
will  of  property  thereby  conveyed,  ch.  1 19,  §  3.  If  she  marry  under  the  age  of  fifteen, 
unless  her  father  assents  to  the  marriage  in  writing,  her  estate  is  secured  to  her  sepa- 
rate use.     Ch.  68,  §  10. 

In  South  Carolina,  having  a  right  to  land  or  any  other  action,  the  wife  may 
appoint  an  attorney  to  bring  suit,  cither  in  her  own  name  or  joined  with  her  husband. 
Statutes  at  Large,  vol.  ii.  p.  587.  And  the  husl)and  can  have  no  control  over  the  suit, 
without  her  voluntary  consent,  given  in  open  court  and  recorded.  Id.  Anv  feme 
covdl,  being  a  .sole  trader,  is  liable  to  be  sued,  as  if  single,  id.,  p.  593,  and  mav  sue 
and  be  sued,  naming  the  husband  for  conformity,  id.  vol.  iii.  pp.  620,  794,  7iote,"  and 
cases  cited.  A  husband  cannot  be  com])ellcd  to  nu\ke  distribution  of  the  personal 
estate  of  his  wife,  but  it  becomes  his,  ui)on  administration.  Id.  vol.  ii.  p.  529.  As 
to  the  light  in  which  the  contract  of  marriage  is  considered,  see  Statutes  at  Large, 
vol.  ii.  p.  733,  note  ;  and  vol.  x.  ]).  357,  note.  Marriage  settlements  must  be  recorded, 
or  else,  as  to  creditors,  liondjldr  ]iurchascrs  and  mortgagees,  are  deemed  void  :  for  the 
various  provisions  as  to  recording,  see  Statutes  at  Large,  vol.  iv.  pj).  656,  657,  767, 
note  ;  vol.  v.  preface,  pp.  ii.  203,  204  ;  vol.  vi.  pp.  213,  483,  636,  637,  apjjendix  ;  vol. 
7,  p.  234.  As  to  the  reciuircmcnt  of  a  specification,  or  a  schedule,  of  the  property  cov- 
ered by  a  mairiage  settlement,  manner  of  executing,  and  efiect  of  want  of,  see  id",  vol. 
V.  J).  204.     The  will  t>f  a  fmif  romi  is  void.     Id.  vol  iii.  p.  342. 

In  Georgia,  marriage  settlements,  if  not  recorded  within  a  specified  time,  are  in- 
Talid  as  to  l>oii<i  Jidi-  purchasers,  creditors,  or  sureties,  without  actual  notice,  becoming 
so  before  actual  rccunling.  Cobb's  Dig.  of  Georgia  Statutes,  ( 1851 ),  p.  180.  The 
husband  takes  administration,  and  is  sole  heir  of  his  deceased  intestate  wife,  id.  p. 
294 ;  aj)i)endix,  p.  1129,  ^  19  ;  Liptrot  v.  Holmes,  1  Kelly,  381  ;  McGinnis  r.  Foster, 
4  Ga.  377;  Lee  i'.  Wheeler,  id.  541;  and  widows  of' intestate  husbands  without 
issue.  Cobb's  Dig.  p.  295.  On  inaniage,  since  February  22,  1785,  tlie  wife's  real 
estate  vests  in  the  husban<l,  like  iiersonalty  ;  real  and  personal  projicrtv  are  ])ut  in  re- 
spect to  ilistribution  on  the  same  footing. "  Id.  p.  305  ;  2  Kent's  Com!  (8  ed.)  109,  n. 
a;  4  id.  27.  There  are  provisions  as  to  marriage  of  an  administratrix,  iil.  pp.  327, 
331  ;  of  a  person  who  has  jireviously  made  a  will,  id.  j).  347  ;  disal)ling  the  husbancl 
to  sell  a  certain  amount  of  propertv,  unless  the  wife,  of  her  own  choice,  join  in  the 

[323] 


306-  THE  LAW   OF  CONTRACTS.  [BOOK   I. 

conveyance.  Id.  pp.  389-391.  The  wife  of  an  idiot  or  lunatic  is  generally  entitled  to 
the  guardianship.  Id.  pp.  342,  343.  If  deserted,  her  earnings  vest  in  herself.  Laws 
of  1851-2,  Tit.  16,  Ai-t.  iv.  p.  237.  By  an  act  approved  Feb.  28,  1856,  Laws  of 
1855-6,  Tit.  19,  No.  176,  p.  229,  a  husband  thereafter  mamed  is  not  liable  for  his  wife's 
debts,  further  than  the  property  received  through  her  will  satisfy,  and  such  property  is 
not  liable  for  his  debts  existing  at  tlic  time  of  the  marriage. 

In  Fi.OKiDAjthe  husband  or  wife  administers  in  preference  to  others.  Thompson's 
Dig.  2  l)iv.  Tit.  3,  ch.  2,  §  1,  1[  5.  Their  rights,  by  marriage,  under  the  Spanish 
law  wlien  in  force,  are  preserved.  Id.  2  Div.  Tit.  3,  ch.  1,  §  4  ;"2  Div.  Tit.  3,  ch.  1,  §  2, 
If  1.  The  wife  retains  independent  of  her  husband  and  not  liable  for  his  debts  (if  in- 
ventoried and  recorded,  but  failure  to  record  confers  no  rights  upon  him,  id.,  2  Div. 
Tit.  5,  ch.  1,  §  2,  T[  8),  all  property  owned  before,  or  obtained  after,  mamage.  But  he 
has  the  management  of  it.  She  cannot  sue  him  for  rent,  nor  can  he  sue  lier  for  man- 
agement. Her  property  alone  is  liable  for  her  antenuptial  debts.  And  upon  her 
death,  he  takes  the  same  interest  in  her  property  as  a  child,  but  if  she  leave  no  child, 
the  whole.  Id.  2  Div.  Tit.  5,  ch.  1,  §  2.  "  Even/  person  of  the  age  of  twentj'-one 
years,"  of  sound  mind,  may  make  a  will.     Id.  2  Div.  Tit.  3,  ch.  1,  ^  1,  TT  1- 

In  Alabama,  the  wife's  separate  estate  is  alone  liable  for  her  ante-nuptial  debts. 
Code  of  Ala.  (1852),  §  1981.  All  her  property  held  before,  or  acquired  after,  mar- 
riage is  secured  to  her  separate  use.  Id.  §  1982.  The  husband  is  her  trustee,  but 
not  liable  to  account  for  the  profits.  Id.  §  1983.  She  need  not  be  of  full  age  to  re- 
lease dower.  Id.  §  1358.  The  proceeds  of  a  sale  of  her  property  are  her  separate 
estate,  which  the  husband  may  use  as  most  beneficial  for  her.  Id.  §  1985.  He  may 
receive  property  coming  to  her.  Her  estate  is  liable  for  necessaries  for  the  family.  If 
a  suit  therefor  is  brought  against  the  husband  and  execution  is  not  satisfied,  her  sep- 
arate estate  may  be  sold  by  order  of  court.  She  may  dispose  of  her  propert}'  by  will. 
Id.  §§  1986-1989.  If  the  husliand  is  unfit  to  manage  her  estate,  (or  his  estate,  or 
abandons  her,  or  has  no  property  exempt  from  execution,  id.  §§  2003,  2004,)  she 
may  be  vested  with  the  powers  of  a  feme  sole.  Id.  §§  1994,  1995.  If  he  is  unfit  to 
manage  his  estate,  a  trustee  may  be  appointed  to  manage  that.  Id.,  §§  1998-2002. 
Forty  acres  of  land,  in  value  not  exceeding  $500,  and  certain  personal  property,  arc 
exempt  from  execution,  and  cannot  be  sold  by  any  member  of  the  family.  Id.  §§2462, 
2464.  As  to  the  effect  of  marriage  upon  wills,  see  id.  §§  1597,  1598;  recording  mar- 
riage settlements,  id.  §  1293. 

In  Mississippi,  a  feme  covert  may  be  separately  seized  of  real  or  personal  property 
by  direct  bequest,  &c.,  if  it  does  not  come  from  her  husband  after  coverture.  Hutch- 
inson's Miss.  Code,  ch.  34,  art.  4,  §  1.  Slie  thus  holds  slaves  that  she  possessed  at  the 
time  of  marriage,  and  those  conveyed  to  her  subsequently  with  their  increase.  Id.  §§2, 
3,  also  stock,  and  implements  of  husbandry  necessary  for  planting.  Id.  Art.  7, 
§  3.  Bents,  issues,  and  profits  of  her  real  estate,  enure  to  her  sole  and  separate  use. 
Id.  art.  7,  §  2.  So  of  the  labor  of  her  slaves ;  and  she  may  contract  jointly  with  her 
husband  for  their  services  and  maintenance,  her  separate  property  alone  being  liable  in 
an  action  on  such  contract.  Bills  of  sale,  of  such  slaves,  must  be  under  seal  and 
acknowledged  like  deeds  of  real  estate.  Id.  §  4.  Suits  affecting  her  separate  property 
may  be  prosecuted  and  defended  in  their  joint  names.  Id.  §  5.  Covenants  in  consid- 
eration of  marriage  and  marriage  settlement,  must  be  acknowledged  and  recorded. 
Ch.  42,  art.  1,  §§  2  3.  She  may  defend  in  a  suit  for  her  land  if  the  husliand 
neglects.  Id.  i\.rt.  3,  §  5.  The  husband  is  not  liable  for  the  wife's  antenuptial  debts 
until  her  separate  ])roperty  is  exhausted,  nor  for  any  debt  contracted  after  marriage  if 
at  the  time  she  owned  separate  property.  Ch.  34,  art.  7,  §  8.  The  willofa_/eme 
covert  is  void.     Ch.  49,  art.  1,  §  14. 

In  Louisiana,  the  wife  cannot  appear  in  court  without  the  authority  of  her  hus- 
band, thougii  she  may  be  a  public  merchant,  or  hold  her  property  separate  from  him. 
Even  then,  she  cannot  alienate,  mortgage,  or  ac(juire  by  gratuitous  or  unincumbered 
title  without  his  written  consent.  She  may  be  authorized  by  the  judge  of  probate  u])on 
his  refusal,  and  if  separated  from  bed  and  board,  has  no  need  of  the  authorization  of  her 
husband.  If  a  public  merchant,  she  may  without  being  empowered  by  him  obligate 
herself  in  any  thing  relating  to  her  trade;  her  husband  is  also  bound,  if  there  is  a  com- 
munity of  property.  She  is  considered  a  public  merchant,  if  she  carries  on  a  separate 
trade,  but  not  if  she  retails  only  the  merchandise  of  the  commerce  carried  on  by  him.  . 
If  the  husband  is  under  interdiction,  or  absent,  the  judge  may  authorize  her  to  act  as  if 

[324] 


Cir.  XVII.]  MARRIED    WOMEN.  -306 

unniaiTied.     Slic  may  make  a  will  without  his  authority.     Civil  Code,  art.  121-1.32, 
1239,  1467,  1779.    But  she  cannot  l)coome  executrix  without  his  consent  or  the  court's. 
III.  art.  1657.      She  may  act  as  a  mandatary.     Id.  art.  1780.     Neitlicr  party  can  be  a 
witness  for  or  af,^^inst  the  other.     Id.  art.  2260.      They  may,  by  marriage  contract, 
determine  the  rij,dits  of  property  ;  but  cannot  change  the  legal  order  of  descents  (this 
restriction   not   aJfecting  donations   inter  viros    or   mo/iis  causa,   or  donation  by  the 
mari'iage  contract  according  to  the  rules  for  donations  inter  vivos  or  tnortis  causa,] 
nor  derogate  from  the  husband's  rights  over  the  person  of  his  wife  and  children,  or 
as  head  of  the  family,  nor  v/ith  respect  to  children  if  he  sun-ive  the  wife,  nor  from 
the  prohibitory  dispensations  of  the  Code.    Id.  art.  2305-2.307,  2316.     The  property 
of  married  persons  is  divided  into   "separate"  and  "common;"  and  the  scjjaratc 
property  of  the  wife  into   "  dotal "  and    "  extra-dotal "  or    "  paraphernal."      The 
"  dotal "  is  that  wliich  the  wife  brings  to  the  husliand  to  assist  him  in  i)earing  the  ex- 
penses of  the  marriage  estaljlishment.     Id.  Art.  2314,   23^5,  2317.     Full  provision.- 
exist  as  to  the  settlement,  administration,  recovery,  subject-matter,  &c.,  of  dowry  and 
the  rights  of  both  parties  therein,  effect  of  insolvency  of  the  husband,  marital  portion, 
&c.,  id.  art.  2317-2354,  2358,  2359;   as  to  the   administration,  fruits,  &c.,  of  the 
extra-dotal  effects.     Id.  art.  2360-2368.     The  wife  has  a  legal  mortgage  on  her  hus- 
band's immovat)lcs   (which  he  may  release  by  giving  a  special  mortgage  to  the  satis- 
faction of  a  family  meeting,  &c.,  or  in  accordance  with  stipulations  in  the  marriage 
contract;)  but  it  shall  not  l)e  lawful  to  stipulate  that  no  mortgage  shall  exist,  id.  art. 
2357;  Kev.  Stat.,  (1856,)  p.  242,  Tit.  Husband  and  Wife;  and  a  privilege  on  hi.- 
immovablcs  for  tlic  restitution  of  her  dowry,  &c.     Id.  art.  2355-2357,  2367,  3182,  3187. 
This  is  in  lieu  of  dower,  id.  art.  3219,  and  is  seventh  in  the  order  of  preference.     Id. 
art.  3221.     A  partnership,  or  community,  of  acquets  or  gains  exists  by  operation  of 
law  in  all  cases.     But  the  parties  may  modify  or  limit  it,  or  agree  that  it  shall  nor 
exist ;  in  whicli  case  there  are  provisions,  preserving  to  the  wife  the  administration  and 
enjoyment  of  her  property  and  the  power  of  alienating  it  as  if  paraphernal,  with  refer- 
ence to  the  expenses  of  the  marriage  and  liability  of  the  husband.     Id.  art.  2312, 
2369,  2370,  2393-2398.     This  community  consists  of  the  profits  of  all  the  effects  of 
which  the  husband  has  the  administration  and  enjoyment,  either  of  right  or  in  fact;  of 
the  produce  of  the  reciprocal  industr}-  and  labor  of  both  husband  and  wife  ;  and  of  the 
estates  which  thoy  may  acquire  during  marriage,  either  b\-  donations  made  jointly 
to  them  both,  or  by  purchase,  or  in  any  similar  way,  even  though  the  purchase  be  in 
the  name  of  one  ami  not  of  both.     Debts  contracted  during  marriage  enter  into  this 
partnership  and  must  be  acquitted  out  of  the  common  fund  ;  but  those  contracted  be- 
fore marriage,  out  of  individual  effects.     The  husband  is  the  liead  and  master  of  the 
community  ;  administers  its  effects,  disposes  of  tiie  revenue,  and  may  alienate  by  an 
unincumbered  title,  without  the  wife's  consent.     Id.  art.  2371-2373.  "  There  are  "spe- 
cial provisions  as  to  conveyances  and  dispositions  of  the  community  property  ami 
gains;  effect  of  dissolution  of  mamage;  ability  of  the  wife  to  exonerate  herself  from 
del)ts  contracted  during  marriage  by  renouncing  the  partnershi|i ;  effect  of  such  renun- 
ciation ;  death;  survivorship  ;  separation  a  meiisa  et  thoro :  sei)aration  of  property  dur- 
ing coverture;  rights  of  creditors,  &c.,  id.  art.  2373-2392,  2398-2412;  Rev.  Stat.. 
1856,  p.   242,  Tit.   Husband  and  Wife;  the  absence  of  one  party.    Code,  art.  65. 
Eitlier  party,  by  marriage  contract  or  during  man-iage,  may  give  "to  the  other  all  lie 
or  she  migiif  give  to  a  stranger.     Kev.  Stat.  1856,  p.  79,  §  17".     rroi>crty  acquired  in 
the  State  by  non-resident  married  persons,  whether  the  title  is  in  the  name  of  either  or 
in  their  joint  names,  is  subject  to  the  same  provisions  a.s  if  owned  by  citizens  of  tlic 
State.     Kev.  Stat.  p.  103.     If  Imsband  or  wife  die  intestate,  without  ascendants  or 
descendants,  his  or  her  sliarc  in  the  community  property  is  held  by  the  survivor  in 
usufruct  \'oY  life  ;  if  the  deceaseil  intestate  leave  issue  of  the  marriage,  the  survivor 
holds  such  is.sue's   inheritance  in  u.sufruct  till  death  or  second  marriage.     Rev.  Stat, 
pj).  103,  104.     A  married  woman,  in  certain  c.a.scs,  may  be  authorized  to    contract 
debts  and  give  mortgages ;  or  renounce  her  rights  in  favor  of  third  persons ;  or  ap- 
point an  agent.     Rev.  Stat.  pp.  560,  561,  Tit.  Woman. 

In  Texas,  the  maniage  of  a  female  minor  gives  her  all  the  rights  she  would  have  if 
of  age.  Hartley's  Digest  of  Texas  Laws,  art.  2420.  All  proj)erty  accjuircd  by  either 
])arty  before  marriage  or  by  gift,  devise,  or  descent  afterwards,  is  the  separate  property 
of  each;  but  the  hu'^liand  has  the  management  of  the  whole.  Id.  art.  2421.  Prop- 
erty aciiuireil  by  either  during  marriage,  in  other  ways,  is  common  ;  the  husband  may 

VOL.1.  28  [325] 


I 


1 


306-  THE   LAW    OF   CONTRACTS.  [BOOK   I. 

dispose  of  it  during  coverture  ;  if  tliei'C  are  no  children,  the  whole  goes  to  the  survivor, 
otherwise  one  half.  Id.  art.  2422.  The  parties  may  be  jointly  sued  for  necessaries 
and  for  cx))enses  benefiting  the  wife's  separate  estate.  Id.  art.  2423.  Execution 
may  be  levied  on  common  property,  or  her  separate  property  at  plaintiff's  option. 
Id."  art.  2424.  Marriage  agreements  must  bo  made  before  a  notary,  and  may  be 
acknowledged  by  a  minor  with  parent's  or  guardian's  consent,  id.  art.  2411,  2412, 
and  are  unalterable  after  marriage.  Id.  art.  2413.  A  reservation  of  property  therein 
to  be  good  must  be  recorded.  Id.  art.  2414.  Husband  and  wife  may  sue  jointly  and 
separately,  for  her  effects.  Id.  241.').  The  wife  may,  on  failure  of  the  husband  to 
support  or  educate  her  and  her  children,  upon  application,  do  it  with  her  separate 
property.  Id.  art.  241G.  The  homestead,  not  exceeding  two  hundred  acres  (or,  if 
in  a  town  or  city,  a  thousand  dollars  in  value),  is  exempt  from  execution.  Const,  of 
Texas,  art.  7,  §  22.  The  husband  cannot  alienate  it  without  his  wife's  consent.  Id. 
For  other  provisions  as  to  homestead,  sec  Hartley's  Dig.  art.  1154.  The  Avife  acts 
jointly  with  her  husband,  when  she  is  appointed  executrix  or  administratrix.  Id. 
art.  1133,  1134.  The  will  of  a.  feme  sole  is  revoked  ])y  her  subsequent  marriage. 
Id.  art.  1090,  and  a  nuncupative  will  docs  not  prevent  the  wife  and  children  from  iu- 
hei-iting.    Id. 

In  Tkxnessee,  the  wife  may  manage  her  own  and  her  husband's  property,  when  he 
is  incapacitated.  Public  Acts  of  1835,  ch.  56,  §  1  ;  and  her  property  is  not  liable  in 
such  case  for  his  debts.  Id.  §  2.  Property  acquired  by  her,  subsequent  to  an  aban- 
donment by  him,  or  separation  from  him,  in  consequence  of  ill  usage,  is  not  liable  for 
his  debts,  "if  she  live  with  him  again  it  is.  Public  Acts  of  1825,  ch.  10.  Marriage 
contracts  and  settlements  must  be  recoidcd  to  be  valid  against  creditors.  They  arc 
not  good  where  more  pi'operty  is  concerned  than  husband  and  wife  possessed  at  the 
time  of  marriage ;  but  subsequent  legacies  to  her  are  considered  as  property  received 
by  her.  Public  Acts  of  1785,  ch.  12.  As  to  dower  and  provisions  in  lieu  of,  see 
Laws  of  1823,  ch.  37,  §  4,  Laws  of  1784,  ch.  22,  ^  8 ;  property  exclusive  of  dower, 
and  exempt  from  execution,  set  off  to  widow,  Laws  of  1837,  ch.  13,  §§  1,2;  other 
property  in  widow's  hands  exempt  from  execution.  Laws  of  1833,  ch.  80;  this  pro- 
vision applies  to  a  mairied  woman  whose  husband  absconds,  id.  ch.  2 ;  other  provis- 
ions in  relation  to  widows.  Laws  of  1844,  ch.  21 1.  A  feme  corert  may  dispose  by 
will  of  her  own  estate.     Laws  of  1852,  ch.  180,  §  4. 

In  Kentucky,  the  husband  has  no  interest  in  the  real  estate  or  chattels  of  the  wife, 
except  the  use,  with  power  to  rent  real  estate  for  three  years  at  a  time,  and  hire  the 
slaves  for  one.  Rev.  Stat,  of  Kentucky,  ch.  47,  art.  2,  ^  1.  Such  estate  is  only  liable 
for  her  antenuptial  debts,  and  for  necessaries  for  the  family,  the  husband  included.  Id. 
Her  chattels  real,  and  slaves  may  be  conveyed  in  the  same  way  as  land,  and  the  pro- 
ceeds go  to  the  husband,  unless  otherwise  provided.  Id.  §  2.  He  is  not  liable  for  her 
antenuptial  debts  except  to  the  amount  received  by  her  independent  of  real  estate  or 
slaves.  Id.  §  3.  Provision  exists  for  a  married  woman's  acting  as  feme  sole  in  case  of 
abandonment,  imprisonment  of  husband,  &c.  Id.  §  4.  The  wife  of  a  non-resident  lius- 
bandma}^  act  as  nfeme  sole.  Id.  §  8.  An  alien  wife  of  a  citizen  husband  may  inherit 
property.  Ch.  15,  art.  3,  §  3.  The  deeds  of  a_/««e  covert  may  be  either  joint  or  sep- 
arate, ch.  24,  §  21  ;  and  must  be  separately  acknowledged.  Id.  §  22.  For  various 
provisions  relating  to  dower,  see  ch.  30.  Marriage  agreements  must  be  recorded. 
Ch.  24,  §  9.  The  husband's  remedy  against  the  wife's  tenant  is  the  same  after  her 
death  as  before.  Ch.  56,  art.  2,  §  25.  He  has  a  life-estate  in  her  slaves  after  her  death. 
Ch.  47,  art.  4,  §  2.  She  has  the  general  rights  oi'  a  feme  sole  in  regard  to  stock  held 
for  lier  exclusive  use.  Id.  §  16.  Ileal  or  personal  estate  conveyed  or  devised  to  her, 
except  as  a  gift,  cannot  be  aliened  without  the  consent  of  her  husband.  Id.  §  17. 
Pi-ovisiou  exists  for  sale  of  married  woman's  property.  Ch.  86,  arf.  1,  5,  6.  A  married 
woman  may  dispose  of  her  separate  property  by  will  or  execute  a  power.  Ch.  106, 
§  4.  Wills  are  revoked  by  a  subsequent  marriage,  except  when  made  under  power  of 
appointment,  when  the  estate  would  not,  in  default  of  such  appointment,  go  to  the 
heirs.    Id.  §  9. 

In  Ohio,  the  interest  of  the  husband  in  the  wife's  real  estate,  her  personal  jjroperty 
acquired  before  and  after  marriage,  and  her  choses  in  action,  unless  he  has  reduced 
them  to  possession,  cannot  be  taken  for  his  debts  during  her  life  or  the  life  of  her  heirs. 
Swan's  It.  S.  (Derby's  ed.  1854),  ch.  87,  tit.  21,  (657)-(660).  The  husband  of  an 
insane  wife  may  be  authorized  to  sell  his  real  estate  without  her  joining.    Id.  ch.  70, 

[326] 


CII.  XVII.]  MARRIED    WOMEN.  -306 

(61).  The  husband  must  be  joined  with  the  wife  in  all  actions  to  which  she  is  a 
party,  except  those  conccrninj;;  her  separate  property,  when  she  may  sue  by  her  next 
friend  ;  as  she  may  in  actions  between  themselves,  except  for  divorce  or  alimony,  when 
she  sues  alone.  Id.  ch.  87,  (28).  If  sued  jointly,  she  may  defend  for  her  own  right, 
and  for  his,  if  he  ne<;lcct  to  defend.  Id.  (29).  Husband  and  wife  may  not  testify  for 
or  against  each  other  while  the  relation  subsists  or  afterwards.  Id.  ch.  87,  (314).  As 
to  the  rights  of  the  wife  to  children  and  property  when  her  husband  joins  the  Shakers, 
sec  ch.  10.5.  Tlie  husband  or  wife  may  insure  liis  life  (the  annual  premium  not  to  ex- 
ceed S1.5fi,  otherwise  the  surplus  insurance  to  go  to  his  representatives),  for  the  benefit 
of  licr  and  her  children.  Id.  ch.  59.  A  married  woman  may  dispose  of  her  property 
bj'  will.  Id.  ch.  122,  (1 )  ;  and  the  will  of  a.  Ji'ine  sole  is  not  revoked  by  her  subsequent 
marriaire.  Id.  (37).  The  homestead  to  the  value  of  S500,  is  exempt  from  execution, 
&c.    Id',  ch.  87,  (G47)-((;.5G). 

In  IxDiAXA,  the  husband  is  liable  to  the  extent  of  the  wife's  property  only  for  her 
antenuptial  debts,  R.  S.  (18.52),  vol.  I,  ch.  52,  §  1,  and  such  liability  is  not  extinguished 
In-  her  death.  Id.  §  2.  Her  Christian  name  is  sufficient  in  a  suit  against  them  jointly. 
Co.K  V.  Kunnion,  3  Blackf.  176.  Her  admissions  subsequent  to  mamage  are  not  ad- 
missible in  a  suit  against  tliem  jointly  for  a  debt  of  hers  while  single.  15rown  v.  Las- 
sclle,  6  IJIackf.  147  ;  Lassellc  v.  Brown,  8  id.  221.  Process  need  only  be  served  on 
the  husliaiid  when  subsequent  proceedings  are  against  both.  Campbell  v.  Baldwin, 
6  id.  364  ;  King  v.  M'Campbell,  id.  435.  The  husband  is  a  proper  party  to  a  scire 
fiickis  on  a  judge's  transcript  of  judgment  against  the  wife  while  single.  Camjiiiell  v. 
Baldwin,  supra.  The  plaintiff  must  prove  marriage,  in  assumpsit  against  both  on  a 
note  of  wife  cliini  sola,  when  non-assumpsit  is  pleaded.  Wallace  v.  Jones,  7  id.  321. 
They  should  sue  separately  in  an  action  for  libel  upon  both.  Hart  v.  Crow,  id.  351. 
As  to  the  wife's  agency,  sec  Castecl  v.  Castecl,  8  id.  240.  Judgment  against  them 
jointly  for  tort  of  wife  must  be  satisfied  first  from  her  lands  if  she  have  any.  K.  S. 
ch.  52,  §  4.  Her  lands  are  not  liable  for  her  husband's  debts,  but  remain  her  separate 
property.  Id.  ^  5  ;  Barnett  i:  Goings,  8  Blackf.  284.  Suits  relative  thereto  should  be 
in  the  name  of  both  ;  if  separated,  in  her  name,  in  which  case  the  husband  is  not  liable 
for  costs.  R.  S.  ch.  52,  ^  7.  The  wife  cannot  sue  or  defend  by  guardian  or  next 
friend,  unless  under  twenty-cme.  Id.  vol.  2,  Part  2,  ch.  1,  §  8.  She  nuiy  defend  in  her 
own  rigiit  an  action  relating  to  her  separate  property,  and  in  her  husband's,  if  he 
neglects.  Id.  ^  9.  A  general  and  bcnclicial  jiowcr  may  be  given  to  her  to  convey, 
without  the  concurrence  of  her  husband,  lands  devised  to  her  in  fee.  Id.  vol.  1, 
ch.  113,  §  16.  She  may  make  a  will,  id.  vol.  2,  ch.  11,  §  1  ;  but  the  will  of  a 
feme  sole  is  revoked  by  marriage.    Id.  4  5. 

In  Wiscoxsix,  the  marriage  of  a/eiiif  sole  cxex'utrix  or  administratrix  extinguishes 
her  authority,  Rev.  Stat.  c.  67,  ^  8  ;  c.  68,  <j  13,  and  of  a  female  ward  terminates  the 
guardianship,  c.  80,  §  27.  Tiie  husband  holds  his  deceased  wife's  lands  for  life,  un- 
less she  left  by  a  former  husband  issue  to  whom  the  estate  might  descend,  c.  62,  §  30. 
She  may  sue  upon  a  rumseller's  bond,  for  injury  done  to  herself  or  children.  Laws 
of  1 850,  c.  139,  ^  4.  Provisions  exist  by  which  i)Owers  may  be  given  to  married  women, 
and  regulating  their  execution  of  them.  11.  S.  c.  58,  §§  8,  15,  40,44,57.  If  husband 
anil  wife  are  impleaded,  and  tlu;  husband  neglect  to  defend  the  rights  of  the  wife,  she, 
ap|>lyiiig  before  judgment,  may  defend  without  him  ;  and  if  he  lose  her  lan<l  by  de- 
fault, she  may  bring  an  action  of  ejectment  after  his  death,  c.  III.  ^  3,  4.  The  real 
estate  of  females  married  before,  and  the  real  and  i)ersonal  projierty  of  those  after,  Feb. 
21,  1850,  remain  their  separate  property.  And  any  married  woman  may  receive,  but 
not  from  her  husband,  and  hold  any  property  as  if  unmamcd.     Laws  of  1830,  c.  44. 

In  Illinois,  there  is  a  homestead  law,  similar  in  its  purposes  to  those  l>efore  men- 
tioned, exemjitiiig  the  homestead  to  the  value  of  81,000.  Comi)iled  Statutes  (1856), 
ch.  57,  (44)-(.50).  We  find  no  other  provisions  different  from  those  stated  at  the  head 
of  this  note. 

In  AuK.vxSAS,  a  fmir  rorcrt  may  be  seized  in  her  own  rigiit  of  any  ])roi)erty  not 
coming  from  her  husband.  Dig." of  Ark.  Stilts,  c.  104,  §  1.  Such  ju-opcrty  is  not 
lialile  for  the  debts  of  the  husbai\d  contracted  before  marriage.  Rev.  St.  c.  60,  ^  19. 
Nor  is  her  ]iroperty  in  slaves  liable  for  her  husband's  subsequent  debts.  Dig.  of  Ark. 
Stats,  e.  104,  4^  2,  3.  He  has  the  mamigement  of  her  slaves,  aiul  suits  for  their  ]ios- 
session  must  be  |)rosecuted  and  defemled  jointly.  Id.  §  4.  The  homestead  and  a 
certain  amount  of  personal  property  is  exempt  from  execution.     Id.   c.  67,  4§  19, 

[327] 


306-  THE    LAW    OF    CONTRACTS.  [bOOK  I. 

'20;  Public  Acts  of  1852,  p.  9.  There  are  pi'ovisions  for  recording  marriage  con- 
tracts. Dig.  of  Stats,  c.  103.  A  married  woman  cannot  be  executrix  or  admin- 
istratrix. Id.  c.  4,  ^  5.  There  are  otlicr  provisions  for  the  wife  in  case  of  abandon- 
ment by  husband,  id.  c.  102,  §  8;  and' as  to  dower,  id.  c.  4,  §§  3,  56,  57  ;  c.  59; 
Hill's  Adm'rs  v.  Mitchell,  5  Ark.  Rep.  G08  ;  Menifee's  Adm'rs  v.  Menifee,  3  Eng. 
Hep.  9.  A  maiTied  woman  cannot  make  a  will  unless  empowered  by  a  marriage 
settlement,  or  by  her  husband.     Dig.  of  Stats,  c.  170,  §  3. 

In  Missouri,  the  husband  may  recover  the  rent  due  on  the  estate  of  his  deceased 
wife.  R.  S.  c.  98,  ^3.  A  married  woman  may  not  be  executrix  or  administratrix, 
id.  c.  3,  ^  5,  and  the  mai'riage  of  a  feme  sole  executrix  extinguishes  her  power.  Id. 
§  32.  She  ma)'  not  be  guardian  of  a  minor's  estate,  but  may  be  of  his  person.  Id.  c. 
73,  §  13.  Marriage  contracts  must  be  recorded,  id.  c.  114,  §  3,  and  may  be  made 
when  female  is  over  eighteen.  Laws  of  1849,  p.  G7.  A  married  woman  cannot  make 
a  will  unless  l)y  authority  of  a  man-iage  settlement  or  from  her  husband.  R.  S.  c.  1 85, 
§  3.  The  will  of  n  feme  sole  is  revoked  by  subsequent  maiTiage.  Id.  §  8.  The  prop- 
erty of  a  wife,  whether  acquired  before  or  after  marriage,  and  the  use  and  profits  of  it, 
are  not  liable  for  the  antenuptial  debts  of  iier  husband.  The  husband's  property, 
owned  before  marriage,  or  subsequently  acquired  by  descent,  gift,  grant,  or  devise, 
and  the  use  and  profits  of  it,  are  not  liable  for  her  antenuptial  debts.  The  wife's  prop- 
erty owned  befoi-e  marriage,  and  that  subsequently  acquired  by  descent,  gift,  grant,  or 
devise,  cannot  be  taken  to  pay  a  liability  of  the  husband  as  security  incurred  at  any 
time,  and  is  not  liable  for  any  fine  or  costs  imjiosed  upon  him  in  a  criminal  case. 
Laws  of  1849,  pp.  67,  68.  The  wife  may  insure  for  her  benefit  either  her  husband's 
life  or  her  own  ;  and  no  life  insurance  effected,  wlicther  before  or  after  marriage,  by  the 
husband  upon  his  own  life  shall  be  lialilc  for  Iiis  debts,  unless  so  expressed  upon  the 
face  of  the  policy.  But  a  creditor  may  insure  his  debtor's  life.  Laws  of  1851,  pp. 
296,  297. 

In  Michigan,  if  a  husband  abandons  his  wife,  or  is  in  the  state  prison,  she  may  be 
authorized,  if  of  age,  to  act  and  be  liable,  in  general,  as  a  feme  sole,  in  which  case  her 
contracts  bind  both  as  if  their  marriage  had  subsequently  taken  place.  She  may  join 
with  his  guardian  to  release  dower,  and  any  agreement  between  her  and  such  guardian 
is  binding.  The  same  rules  apply  to  a  married  woman  who  comes  into  the  State 
without  her  husband.  The  property  acquired  by  a  married  woman,  Ijcfore  or  after 
coverture,  is  free  from  her  liusband's  liabilities,  but  she  cannot  sell  it  without  his  con- 
sent, or  authority  from  court,  nor  if  separated  froui  him  can  she  remove  it  from  his 
premises  without  such  authority.  R.  S.  c.  85.  She  may  recover  land  lost  by  his  de- 
fault, and  defend  when  he  neglects.  Id.  c.  113,  §  3,  4.  The  marriage  of  an  executrix 
extinguishes  her  authority.  Id.  c.  69,  §  8.  So  of  an  administratrix.  Id.  c.  70,  §  13. 
A  feme  coi'ert  may  have  a  general  and  bcncfirial  power  to  dispose,  dui'ing  marriage,  of 
lands  conveyed  to  her.  Id.  c.  64,  §  8.  She  may  devise  her  property,  (id.  c.  68,  §  1) ; 
and  may  have  dower  though  an  alien.  Id.  c.  66,  §  21 .  There  is  also  a  homestead  exemp- 
tion law,  Laws  of  1848,  No.  109,  p.  124,  and  a  married  woman  may  insure  the  life 
of  her  husband  for  her  benefit  and  tliat  of  her  children,  but  the  annual  premium  must 
not  exceed  $300.     Laws  of  1848,  No.  233,  p.  350. 

In  Iowa,  the  personal  property  of  tlic  wife  docs  not  vest  at  once  in  the  husband,  but 
if  left  under  his  control,  will,  in  favor  of  third  persons  acting  in  good  faitli  and  without 
knowledge  of  the  real  ownership,  be  ]3resumed  to  have  been  transferred  to  him.  But 
she  may  avoid  such  surrender  by  filing  for  record  a  notice  stating  the  amount  of  such 
property,  and  that  she  has  a  claim  therefor;  and  if,  during  her  lifetime,  he  dies  or 
becomes  insolvent,  she  is  deemed  a  preferred  creditor  to  that  amount,  without  interest, 
but  not  as  to  creditors  without  knowledge,  who  become  such  after  the  jiropcrty  is 
])laced  under  the  husljand's  control,  and  l)efore  the  filing  of  such  notice.  The  wife 
must  prove  tlie  amount  of  sucli  property ;  l)ut  after  five  years  the  notice  is  presumptive 
evidence.  Tropcrty  which  ordinarily  passes  only  by  written  evidence  of  transfer  is 
presumed,  without  notice,  to  belong  to  the  wife,  unless  she  received  it  from  the  hus- 
band. He  is  not  liable  upon  contracts  relative  to  her  separate  property  or  purporting 
to  bind  herself  alone,  nor  is  her  property  or  income  lialile  for  his  debts.  Family  ex- 
penses, education  of  children,  &c.,  are  chargeable  upon  the  jn-operty  of  both  or  cither; 
they  may  be  sued  jointly,  or  the  husband  separately.  When  abandoned  by  lier  hus- 
l)and,  the  wife  may  obtain  permission  to  act  as  if  sole,  and  to  dispose  of  a  portion  of 
his  property,  and  collect  debts  due  him ;  and  the  husband,  in  like  case,  may  obtain 

[  328  ] 


CII.   XVII.]  MARRIED    WOMEN.  •  -306 

similar  power  over  her  property.  (Provision  is  also  made  for  the  seizure  of  his  prop- 
erty by  jjuhlic  officers  in  tlie  former  instance.  Cotlc,  §  799.)  He  cannot  remove  tlie 
wife  or  children  from  the  homestead  without  tlieir  consent.  Code  of  Iowa,  §§  1447- 
1462.  The  estate  by  courtesy  is  abolished,  and  the  husband  is  entitled  to  the  same 
rii,'hts  of  dower  as  the  wife.  Id.  §  1421  ;  Laws  of  1852,  c.  61,  ^  3.  When  judgment 
is  aj^ainst  husband  and  wife,  execution  may  issue  ajjainst  the  property  of  either  or 
botli.  Code,  §  1891.  Jf  both  are  sued  jointly,  the  wife  may  defend  for  her  own  right, 
or  for  her  Imsltand's  right  also.  Id.  §  1687.  A  married  woman  may  receive  gifts  on 
grants  from  her  husband  without  the  intervention  of  a  trustee,  id.  ^  1192;  and  may 
convey  her  interest  in  real  estate,  id.  §  1207  ;  and  may  be  executrix  indc])endcntly 
of  her  husband.  Id.  §  1304.  There  is  also  a  homestead  exemption  law,  similar  in  its 
general  scope  and  purpose  to  those  before  mentioned.  Id.  §§  .501,1245-1266,1395; 
Laws  of  1852,  c.  61,  §  2. 

In  C.vLiFORMA,  all  property  owned  before  man-iage,  or  subsequenth'  acquired  by 
gift,  bequest,  devise,  or  descent,  by  either  party,  is  the  separate  property  of  each  ;  but 
all  otherwise  acquired  by  either  after  marriage  is  common  property.  An  inventory  of 
the  wife's  separate  property,  acknowledged  or  proved  as  for  a  conveyance  of  land, 
must  be  recorded,  and  this  shall  be  notice  of  the  wife's  title,  and  her  property  included 
therein  is  exempt  from  seizure  on  execution  for  the  debts  of  her  husband.  lie  has  the 
management  and  control  of  her  separate  property  during  marriage,  but  no  alienation 
can  be  made,  nor  lien  or  incumbrance  created  unless  she  joins  in  the  deed  and  ac- 
knowledges upon  a  sejjarate  examination.  But  when  she  sells  her  separate  property 
for  his  benetit,  or  he  uses  the  proceeds  with  her  written  consent,  it  is  deemed  a  gift, 
and  neither  she  nor  those  claiming  under  her  can  recover.  In  certain  cases  a  trustee 
may  be  appointed  to  manage  her  property.  The  husband  has  the  entire  control  and 
management  of  the  common  ])r()pcrty,  with  like  absolute  power  of  disposition  as  of  his 
own  separate  propertj- ;  and  the  rents  and  ])r()lits  of  the  separate  i)ropcrty  of  both  arc 
deemcti  common  projjcrty,  unless  with  respect  to  the  wife,  the  terms  of  the  bequest, 
devise,  or  gift,  are  otherwise.  Dower  and  courtesy  arc  abolished.  Upon  the  death 
of  cither  i)arty,  one  half  the  common  jirojicrty  goes  to  the  survivor,  and  the  other 
half  to  the  descendants  of  the  deceased,  subject  to  the  payment  of  his  or  her  debts  ; 
if  there  arc  no  descendants,  the  whole  to  the  survivor,  subject  to  such  payment. 
Upon  divorce,  the  common  ])roperty  is  ccnudly  divided.  The  separate  ))ro])erty  of 
the  wife  is  alone  liable  for  her  antenuptial  debts.  15ut  the  parties  may  control  these 
provisions  by  maiTiage  contract,  which  must  be  in  writing  and  recorded,  or  otherwise 
shall  not  aU'ect  third  parties.  It  maybe  entered  into  by  a  minor,  but  cannot  alter  the 
legal  order  t){  descent,  nor  derogate  from  the  husband's  rights  over  the  j)ersons  of 
liis  wife  and  c-hildren,  as  head  of  the  family,  or  the  survivor's  rights  as  guardian 
of  cliildren.  Compiled  Laws  of  Cal.,  (18.50-1853,)  ch.  147,  p.  812.  When  a  mar- 
ried woman  is  jiarty  to  a  suit,  lier  husliand  is  to  Ije  joined,  except,  if  tlie  action  con- 
cerns her  sejjarate  property,  she  may  sue  alone,  and  if  bi'tween  herself  and  her  hus- 
band, she  nniy  sue  ami  be  sued  alone.  If  both  are  sued  together,  she  may  defend  ■ 
in  her  own  right.  Id.  ch.  123, 'J §  7,  8,  p.  520.  There  is  also  a  homestead  law,  ex- 
cm])iiiig  the  homestead  to  the  amount  of  85,000,  from  final  process  of  court;  and 
it  cannot  be  alienated  without  the  wife  joins  in  the  conveyance,  and  acknowledges 
ajiart  from  her  husban<l.  Its  other  provisions  are  substantially  similar  to  those  be- 
fore referred  to.  Id.  cli.  158,  ]).  850.  The  wife's  real  estate  may  be  convi'vcd  by 
se])arate  deed,  if  her  husband  has  been  absent  one  year.  Laws  of  1855,  i-li.  17. 
Siie  may  devise  by  will,  with  the  written  consent  of  her  husband,  (unless  this  is 
rendered  mniecessary  by  marriage  contract).  Comjtilcd  Laws,  ch.  24,  §  2,  ji.  140.  By 
complying  with  certain  rc(|uircments,  she  may  carry  on,  in  her  own  name,  any 
business,  trade,  profession,  or  art,  and  the  jjroperty,  &(■.,  invested  belongs  exclusively 
to  her,  and  she  has  all  the  legal  privileges  and  disabilities  of  debtor  and  creditor, 
aiul  becomes  responsible  for  the  maintenance  of  her  children.  Ilcr  husband  is  not 
liable  for  her  delits  thus  C(intractt'(l  without  special  written  jiromise;  and  she  shall 
not  originally  invest  more  than  85,000,  without  taking  oath  that  the  amount  above 
that  sum  did  not  jtrocced  from  him.  Id.  ch.  178,  p.  881.  She  may  cause  the  life 
of  iier  liusband  to  be  insured  for  lier  benelit.     rublic  Laws  of  1854,  ch.  40. 

28  *  [  :J29  ] 


307-* 


THE   LAW   OF   CONTRACTS. 


[book  I. 


CHAPTER  XVIII. 


BANKRUPTS   AjSD    INSOLVENTS. 


At  this  time  we  have  in  this  country  no  national  law  of 
bankruptcy.  In  the  several  States  there  are  insolvent  laws, 
which  more  or  less  approach  the  character  of  a  bankrupt  law. 
In  the  second  volume,  which  treats  of  contracts  considered  in 
reference  to  the  operation  of  law  upon  them,  we  give  in  a  chap- 
ter on  Bankruptcy  and  Insolvency,  a  full  statement  of  the  gen- 
eral principles  of  the  law  on  this  subject,  so  far  as  we  have  been 
able  to  derive  them  either  from  statutes  or  from  adjudication. 

Here,  however,  it  may  be  proper  to  remark,  that  it  *is  so  far 
acknowledged  that  a  discharged  bankrupt  or  insolvent  still  lies 
under  a  moral  obligation  to  pay  his  debts  in  full,  when  he  can, 
that  this  obligation  is,  at  common  law,  a  sufficient  consideration 
to  sustain  an  actual  promise  to  do  so.  (g-)  This  promise,  how- 
ever, must  be  distinct  and  specific,  (//)  and  it  has  been  held  that 


(</)  Scouton  V.  Eislord,  7  Johns.  36  ; 
rieining  v.  Hayiie,  1  Starkic,  370  ;  Free- 
man r.  Fenton,  1  Covvp.  544 ;  Twiss  v. 
Massey,  1  Atk.  67  ;  Ex  parte  Burton,  id. 
■255;  Birch  v.  Sharland,  1  T.  R.  715; 
Bcsford  V.  Saunders,  2  H.  Bl.  116  ;  Brix 
V.  Brahani,  8  ISIoore,  261,  1  Bincr.  281  ; 
Envin  v.  Saunders,  1  Cow.  249  ;  Shlppey 
V.  Henderson,  14  Johns.  178;  Maxim  r. 
Morse,  8  JMass.  127;  Way  v.  Sperry,  6 
Cush.  238 ;  Best  i:  Barber,  3  Doug.  f88 ; 
Trumbull  v.  Tilton,  1  Foster,  128.  The 
promise  should  be  made  after  the  decree 
in  bankruj^tcy  discharging  the  debt  —  a 
promise  made  after  the  petition  in  bank- 
ruptcy was  filed  merely,  but  before  the  de- 
cree, is  not  sufficient.  Stebbins  v.  Sher- 
man, 1  Sand.  Sup.  Ct.  510.  In  England, 
however,  by  statute  6  Geo.  4,  c.  16,  a 
promise  by  a  bankrujit  must  be  in  icritiny, 
and  signed  by  the  bankrupt,  or  by  some 
person  thereto  by  him  lawfully  authorized. 

[  330  J 


—  A  promise  by  a  debtor  to  pay  a  debt 
whicli  has  been  roluntarilij  i-cleascd  by  the 
creditor  is  not  binding,  for  want  of  consid- 
eration. Warren  r.  Whitney,  24  Maine, 
561;Sneyily  v.  Head,  9  'Watts,  390. 
And  this  although  the  release  was  given 
without  consideration,  and  merely  to  ena- 
ble the  debtor  to  testify  in  a  suit  against 
the  creditor,  in  which  he  could  not  have 
otherwise  testified  because  of  a  legal  in- 
terest. Valentine  v.  Foster,  1  Met.  520. 
But  see  Willing  v.  Fetcrs,  12  S.  &  K.  177. 
(A)  It  must  be  an  absolute  and  uncon- 
ditional promise  to  pay  the  debt.  Brown 
V.  Collier,  8  Humph.  510.  The  words, 
"  I  have  always  said,  and  still  say,  that 
she  shall  have  her  pay,"  spoken  to  an 
agent  of  the  creditor,  may  be  construed  by 
the  jury  as  an  express  promise  to  ])ay. 
Pratt  v.  Russell,  7  Cush.  462.  — Mere 
statements  to  third  persons  that  he  had 
promised  to  pay  the  debt  arc  not  in  them- 


CH.  XVIII.] 


BANKRUPTS   AND   IXSOLVEXTS. 


309* 


the  payment  of  interest,  or  even  payment  of  part  of  the  prin- 
cipal and  its  indorsement  on  the  note  by  the  debtor  himself,  is 
not  sufficient  to  warrant  a  jury  in  finding  a  new  promise  to  pay 
the  whole  debt,  {hh)  Where  such  promise  is  made,  it  does  not 
seem  to  be  necessary  to  declare  upon  it  as  the  foundation  of  a 
suit,  but  an  action  may  be  brought  upon  the  old  promise,  and 
the  new  promise  will  have  the  effect  of  doing  away  the  obstruc- 
tion otherwise  interposed  by  the  bankruptcy  and  discharge,  (i) 
But  if  the  promise  is  conditional,  then  the  party  seeking  to  en- 
force it  must  show  the  condition  satisfied  ;  as  if  the  debtor 
promised  to  pay  when  he  was  able,  then  the  creditor  must  prove 
his  ability,  {j)  In  such  case,  and  perhaps  in  all,  it  *would  be 
safer  to  rely  upon  the  new  promise  as  the  ground  of  the  action, 
and  upon  the  old  promise  only  as  the  consideration  for  the  new 
one,  [k)  as  in  many  cases  it  has  been  held  that  the  new  jiromise 
does  not  revive  the  negotiability  of  a  bill  or  note,  but  binds  the 
insolvent  only  to  the  person  to  whom  the  contract  was  made,  {kk) 
The  contrary  has,  however,  been  decided,  {kl) 


selves  sufficient.  They  aflford  some  pround 
to  raise  llic  iive-sumjition  of  a  promise,  Init 
are  not  such  in  tiicinsclvcs.  Prcwctt  v. 
Carutliers,  12  S.  &  M.  491  ;  Yoxtheimer 
V.  Keyscr,  11  I'enn.  365. 

(hh)  Mcrriaiu  v.  Bayley,  1  Cusli.  77  ; 
CaTnlirid;,^"  Institution  for  Savings  v.  Lit- 
tleli.ld,  G  Cusli.  210. 

(/)  Williams  f.  Dydc,  Peake,  N.  P.  68  ; 
Maxim  r.  Morse,  8  Mass.  127;  Sliippey 
V.  Henderson,  14  Johns.  178;  Depuy  r. 
Swart,  3  Wend.  135.  —  If  the  old  debt 
was  due  liy  note  or  specialty,  a  parol 
promise  merely  will  not  sustain  an  action 
on  tlie  note  or  sjneialty  itself.  Graham 
V.  Hunt,  8  15.  Monroe,  7. 

(j)  Iksford  r.  Saunders,  2  H.  151.  116; 
Fleminti  r.  Ilayne,  1  Stark.  370 ;  Branch 
Bank  c  Boykili,  9  Ala.  320  ;  Scouton  v. 
Eislord,  7  Johns.  36;  Bush  v.  Barnard,  8 
id.  407.  —  So  in  promises  hy  an  adult  to 


pay  "  when  he  is  able  "  a  debt  contracted 
during  infancy,  the  defendant's  ability  to 
pay  must  be  sliowu.  Pcnn  v.  Bennett,  4 
Cam]).  205  ;  Cole  v.  Saxby,  3  Esp.  160; 
IJavies  v.  Smith,  4  id.  36  ;  Thompson  v. 
Lay,  4  Pick.  48;  Everson  v.  Carpenter, 
17  Wend.  419.  So  of  a  jiroinise  to  pay 
a  debt  barred  by  the  statute  of  limitations. 
Tanner  r.  Smart,  6  B.  &  C.  603  ;  Ilavdon 
r.AVillimns,  7  Biu>r.  163:  Gould  r.  Shirlcv, 
2  M.  &  P.  581  ;  Tompkins  c.  Brown,"  1 
Denio,  247 ;  Laforge  v.  jayne,  9  IVnn.  410. 

(/>•)  Penn  v.  Bennett, "4  (\im]).  205; 
Fleming  *■.  ILmie,  1  Stark.  371  ;  Waitr. 
Morris,  6  AVend.  394. 

(/./.)  Depuy  V.  Swart,  3  AVend.  135; 
Moore  r.  Vie"le,  4  id.  420;  Walbridgc  r. 
Ilarroon,  18  Verm.  448;  White  v.  Cush- 
in<_',  30  Maine,  267  ;  Graham  v.  Hunt,  8 
B.  M<m.  7. 

(U)  Wav  r.  Sperrv,  6  Cush.  238. 

■[  o31  ] 


310-*311 


THE   LAW    OF    CONTRACTS. 


[look  I. 


CHAPTER     X  f  X. 

persons  of  insufficient  mind  to  contract. 

Sect.  I.  —  Nun  Compotes  Mentis. 

They  who  have  no  mind,  "cannot  agree  in  mind"  with  an- 
other ;  and  as  this  is  the  essence  of  a  contract,  they  cannot 
enter  into  a  contract.  But  there  is  more  difficulty  when  we 
consider  the  case  of  those  who  are  of  unsound  mind,  partially 
and  temporarily  ;  and  inquire  how  the  question  may  be  affected 
by  the  cause  of  this  unsoundness. 

It  was  once  held  that  no  man  could  discharge  himself  from 
his  liability  under  a  contract  by  proof  that  when  he  made  it  he 
was  not  of  sound  mind ;  on  the  ground  that  no  man  should  be 
permitted  to  stultify  himself.  (/)  This  is  not  now  the  law, 
either  in  England  or  in  this  country.  If  one  enters  into  a  con- 
tract while  deprived  of  reason,  and  afterwards  recovers  his 
reason,  he  may  repudiate  that  contract,  [m)    *And  this  although 


(/)  Lift.  sect.  405, 406  ;  Beverley's  case, 
4  Co.  Hep.  120  ;  Stroiul  v.  Marshall,  Cro. 
El.  398  ;  Cross  v.  Andrews,  id.  G22.  But 
this  was  contrary  to  the  most  ancient  au- 
thorities. Sec  2  Bl.  Com.  291.  — In 
Waring  v.  Waring,  12  Jur.  947,  (1848,) 
the  nature  and  the  degrees  of  insanity  are 
very  fully  considered.  It  is  difficult  to 
define  insanity,  or  to  discriminate  it  pre- 
cisely from  mere  weakness  of  mind,  or 
disturbed  imagination.  Absolute  sanity 
of  mind  may  or  may  not  be  predicated  of 
any  person,  accordingly  as  we  include 
therein  more  or  less  perfect  power  of 
thought  and  accuracy  of  judgment.  In 
Waring  r.  Waring,  Lord  Brougiiam  holds 
that  no  mind  which  is  insane  upon  any 
one  point  can  be  wholly  sound  on  any 
subject.  If  by  this  any  thing  more  is 
meant  than  that  an  unsound  mind  is  not 

[332] 


a  sound  one,  the  proposition  is  opposed  to 
the  general,  if  not  universal  opinion  of 
mankind.  And  perhaps  all  experience 
demonstrates  that  a  mind  may  be,  in  rela- 
tion to  some  one  point,  what  would  be 
called  insane  by  all  persons,  and  yet  on 
others  be  judged  to  be  sane,  if  tried  by  any 
of  the  tests  usually  applied  to  this  ques- 
tion. 

(m)  In  Gore  v.  Gibson,  13  M.  &  W. 
623,  the  action  was  assumpsit  by  the  in- 
dorsee against  the  indorscr  of  a  bill  of  ex- 
change. Tlie  defendant  j)leadcd  that  when 
he  indorsed  the  bill  he  was  so  intoxicated 
as  to  be  unable  to  comprehend  the  mean- 
ing, nature,  or  effect  of  the  indorsement; 
of  which  the  plaintiff  at  the  time  of 
the  indorsement  had  notice.  Held,  to  be 
a  good  answer  to  the  action.  Parke, 
B. :  "  Where  the  party,  when   he  enters 


CII.  XIX.]     PERSONS    OF   INSUFFICIENT   MIND    TO    CONTRACT.  -311 

his  temporary  insanity  was  produced  by  his  own  act,  as  by  in- 
toxication, (w)  But  he  must  not  make  use  of  his  intoxication 
as  a  means  of  cheating  others.  If  he  made  himself  drunk  with 
the  intention  of  avoiding  a  contract  entered  into  by  him  while 
in  that  state,  it  may  well  be  doubted  whether  he  would  be  per- 
mitted to  carry  this  fraud  into  effect.  And  if  he  bought  goods 
when  drunk,  but  keeps  them  when  sober,  his  drunkenness  is  no 


into  the  contract,  is  in  sucli  a  state  of 
drunkenness  as  not  to  know  what  lie  is 
(loinfj,  and  particularly  when  it  api)cars 
that  this  is  known  to  the  other  party,  the 
contract  is  void  altogether,  and  he  cannot  * 
be  coiniielled  to  perform  it.  A  person 
who  takes  an  ohligation  from  another  un- 
der such  circumstances  is  {guilty  of  actual 
fraud.  The  inodeni  decisions  have  qnali- 
ficd  the  old  doctrine,  tliat  a  man  shall  not 
1)0  allowed  to  allcj^e  his  own  lunacy  or  in- 
toxication, and  tutid  drunkenness  is  now 
held  to  be  a  defence."  See  Mitchell  v. 
Kinj,nnan,  r)rick.  431 ;  Webster  r.  Wood- 
ford, 3  Day,  90;  Grant  v.  Thompson,  4 
Conn.  203;  Lan<,^  v.  Whidden,  2  New 
Ilamp.  43.'j;  Seaver  v.  Phelps,  11  Tick. 
304  ;  Arnold  r.  Kichmond  Iron  Works,  1 
Gray,  434  ;  McCrei^dit  v.  Aiken,  1  Kicc, 
.5G  ;'  Yates  v.  Boen,  2  Stran>,'e,  1104; 
Baxter  r.  Earl  of  Portsmouth,  5  B.  &  C. 
170 ;  Rice  v.  Peet,  1.5  .Johns.  .503  ;  Owin<,''s 
case,  1  Bland,  377;  Horner  !-.  Marshall, 
.5  Munf.  4f)G  ;  Fit/.gcrald  v.  Kecd,  9  Sm. 
&  Mar.  94.  And  an  a<lministrator  may 
avoid  a  contract  by  showiiijjj  the  insanity 
of  tiie  testator  at  the  time  of  niakin<^  it. 
Lazell  V.  Pimiick,  1  Tyler,  247.  —  So  in- 
sanity is  a  j;ood  defence  to  an  action  of 
slander,  and  evidence  that  the  defendant 
was  a  weak-minded  man,  and  at  times, 
both  before  and  after  the  speakinf:  of  the 
words,  totally  dcran;ied,  is  (•oin])etent  evi- 
dence in  ascertaining^  whetiier  he  was  in- 
sane at  the  time  of  speaking  them.  Bry- 
ant V.  Jackson,  C  Humph.  199. — Aiid 
it  is  no  answer  that  the  sane  ])arty 
when  contracting  was  not  ap])rised  of 
the  other's  insanity,  and  did  not  sus- 
pect it,  and  diii  not  overreach  such  in- 
sane jier,son,  or  practice  any  fraud  or  un- 
fairness u|)on  him.  Seaver  r.  I'hcljjS,  H 
I'iek.  304.  And  the  (lirtvm  of  Lord  Ten- 
tcnlen  in  Brown  v.  .loddrell,  1  Moody  & 
Malkin,  1(1,"),  to  the  contrary,  is  inconsistent 
with  modern  decisions.  —  Insanitv  is  no 
defence  to  an  action  of  trover,  ^lorse  v. 
Crawford,  17  Verm.  It.  499. 

(")  In  Pitt  V.  Smith,  3  Cami)..33,  Lord 


EUenhorough  held  that  an  agreement  signed 
by  an  intoxicated  man  is  void,  on  the 
ground  that  such  a  person  "  has  no  agree- 
ing mind."  And  ho  reasserted  this  rule 
in  Fenton  v.  Holloway,  1  Stark.  12G.  See 
Cooke  r.  Clay  worth,  18  Ves.  15  ;  Color. 
Eobbins,  Bull.  N.  P.  172  ;  Banett  v.  Bux- 
ton, 2  Aikens,  167  ;  Burroughs  v.  Kich- 
mond,  1  Green,  233  ;  Foot  v.  Tewksbury, 
2  Verm.  97  ;  Reynolds  v.  Waller,  1  Wash. 
1G4  ;  Reinicker  v.  Smith,  2  Harr.  &  Johns. 
421  ;  Curtis  v.  Hall,  1  South.  3G1  ;  Ruth- 
erford r.  Rutf,  4  Uesaus.  3G4 ;  Seymour 
V.  Delanev,  3  Cow.  445  ;  Duncan  v.  Mc- 
Cullough,'  4  S.  &  R.  484  ;  Taylor  v.  Pat- 
rick, 1  Bibb,  1G8;  Prentice  r.  Aehorn,  2 
Paige,  30  ;  Harrison  r.  Lemon,  3  Blackf. 
51  ;  Drummond  v.  Hopper,  4  Harring. 
327.  And  the  legal  representatives  of  a 
party  contracting  while  intoxicated  have 
the  same  right  as  the  party  himself  to 
avoid  such  contract,  although  the  drunk- 
enness was  not  procured  by  the  sober 
])arty.  Wigglcsworth  v.  Steers,  1  Hen. 
&  Mun.  70.  It  seems  to  be  held  in  ecjuity 
that  intoxication  docs  not  avoid  a  con- 
tract, unless  the  intoxication  was  produced 
by  the  other  party,  or  unless  fraud  had 
been  practised  upon  him.  Cory  v.  Cory, 
1  Ves.  Sen.  19  ;  Johnson  v.  M"edlieott,'3 
P.  Wins.  130,  note  ;  Stocklev  *•.  Stocklev, 
1  V.  &  B.  23;  Cooke  r.  Clayworth,  18 
Ves.  12  ;  Crane  v.  Conklin,  Saxton,  346. 
Dealing  with  persons  non  comjiutcx  i-ai.scs  a 
presumption  of  fraud ;  but  it  may  be  re- 
butted ;  and  if  the  evidence  of  good  faith 
aitd  of  benefit  to  the  unsound  ])crson  is 
clear,  equity  will  not  interfere.  Jones  v. 
Perkins,  5  13.  Monroe,  225.  —  As  to  frauds 
on  drunkards,  see  Gregfirv  r.  Frazer,  3 
Camp.  454  ;  Brandon  r.  Old,  3  C.  &  P. 
440.  Some  of  the  above  authorities  cer- 
tainly seem  to  be  inconsistent  with  the 
principle,  that  a  person  in  a  state  of  intox- 
ication has  no  agreeing  mind,  and  there- 
fore there  never  was  a  contract  between 
the  jiartics.  We  think  this  ])rinciplc,  how- 
ever, the  true  one. 

[333] 


312* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


answer  to  an  action  for  the  *purchase-money.  (o)  And  if  the 
condition  of  lunacy  be  established  by  proper  evidence  under 
proper  process,  the  representatives  and  guardians  of  the  lunatic 
may  avoid  a  contract  entered  into  by  him  at  a  time  when  he  is 
thus  found  to  have  been  a  lanatic,  although  he  seemed  to  have 
his  senses,  and  the  party  dealing  with  him  did  not  know  him 
to  be  of  unsound  mind,  (p)  But  this  rule  has  one  important 
qualification,  quite  analogous  to  that  which  prevails  in  the  case 
of  an  infant,  and  resting  undoubtedly  on  a  similar  regard  for 
the  interests  of  the  lunatic.  This  is,  that  his  contract  cannot 
be  avoided,  if  bond  fide  on  the  part  of  the  other  party,  and  made 
for  the  procurement  of  necessaries,  (g)  which,  as  in  the  case  of 
infants,  would  not  be  restricted  to  absolute  necessaries,  but  such 
things  as  are  useful  to  him,  and  proper  for  his  means  and  sta- 
tion. And  it  has  been  recently  held,  that  a  bond  fide  contract 
made  with  a  lunatic,  who  was  apparently  sane,  cannot  be  re- 
scinded by  him  or  his  representatives,  unless  the  parties  can  be 
placed  in  statu  quo.  (r) 


(o)  See  Atderson,  B.,  in  Gore  v.  Gibson, 
13.  M.  &  W.  623.  From  Sentancc  v. 
Poole,  3  C.  &  P.  1,  it  might  be  inferred 
that  an  indorsement,  made  in  a  state  of 
complite  intoxication,  would  not  be  en- 
forced against  tlie  dninkard  by  a  bona  Jide 
holder  without  knowledge  of  the  circum- 
stances. Such  a  rule  must  rest  on  the  as- 
sumption that  the  act  was  a  nuUity ;  but 
it  is  difiScult  to  see  how  one  could  indorse 
a  bill  or  note  in  such  a  way  tliat  its  ap- 
pearance would  excite  no  suspicion,  and 
yet  be  so  drunk  as  to  know  nothing  of 
what  he  was  doing ;  and  unless  tlie  in- 
dorser  were  utterly  incapacitated,  it  sliould 
seem  that  a  third  party,  taking  the  note 
innocently  and  for  value,  ought  to  hold  it 
against  him. 

(/))  McCrillis  v.  Bartlett,  8  N.  Hamp. 
.569.  See  Smitli  v.  Spooner,  3  Pick.  229 ; 
Manson  v.  Felton,  13  Pick,  206. 

(7)  Richardson  r.  Strong,  13  Ire.  Law, 
106  ;  Gore  r.  Gibson,  13  M.  &  W.  627  ; 
Niell  V.  Morley,  9  Ves.  478  ;  McCrillis  v. 
Bartlett,  8  New  Hamp.  569.  In  Baxter 
V.  The  Earl  of  Portsmouth,  5  B.  &  C.  170, 
2  C.  &  P.  178,  a  tradesman  supplied  a 
person  with  goods  suited  to  his  station, 
and  afterwards,  by  an  inquisition  taken 
under  a  commission  of  lunacy,  that  per- 
son was  found  to  have  been  lunatic  before 

[334] 


and  at  the  time  when  the  goods  were  or- 
dered and  su]iplied.  It  was  held,  that  this 
was  not  a  sufficient  defence  to  an  action 
for  the  price  of  the  goods,  the  tradesman 
at  the  time  when  he  received  the  orders 
and  supplied  the  articles  not  having  any 
reason  to  suppose  that  the  defendant  was 
a  lunatic.  Abbot,  C.  J.  :  "I  was  of  opin- 
ion at  the  trial  that  the  evidence  given  on 
the  part  of  the  defendant  was  not  sufficient 
to  defeat  the  plaintiffs  action.  It  was 
brought  to  recover  their  charges  for  things 
suited  to  the  state  and  degree  of  the  de- 
fendant, actually  ordered  and  enjoyed  by 
him.  At  the  time  when  the  orders  were 
given  aud  executed,  Lord  Portsmouth  was 
living  with  his  family,  and  there  was  no 
reason  to  suppose  that  the  plaintiffs  knew 
of  his  insanity.  I  thought  the  case  very 
distinguishable  from  an  attempt  to  enforce 
a  contract  not  executed,  or  one  made  un- 
der circumstances  which  might  have  in- 
duced a  reasonable  person  to  suppose  the 
defendant  was  of  unsound  mind.  The 
latter  would  be  cases  of  imposition  ;  and  I 
desired  that  my  judgment  might  not  be 
taken  to  be  that  such  contracts  would  bind, 
although  I  was  not  prepared  to  say  that 
tliev  would  not." 

((•)  ]Molton  V.   Cararoux,   12  Jur.  800, 
(1848),  S.  C.  2  Exch.  487;    in  error,  4 


ClI.   XIX.]  PERSONS    OF   INSUFFICIEXT   MIND    TO    COXTRACT.   313-^314 

The  statutes  of  the  different  States  provide  that  idiots,  luna- 
tics, drunkards,  and  all  persons  of  unsound  mind,  may  be  put 
under  guardianship.  And  the  finding  of  a  competent  court  of 
the  fact  of  lunacy,  and  the  aj^pointment  of  a  guardian,  are  held 
to  be  conclusive  proof  of  such  lunacy,  and  all  subsequent  con- 
tracts are  void,  (s)  In  England,  an  inquisition  is  only  presump- 
tive evidence  as  to  third  parties,  (t)  But  it  has  been  held,  that 
even  where  the  statute  expressly  declares  all  the  contracts  of  a 
lunatic  under  guardianship  void,  or  Misables  him  from  entering 


Exch.-17.  Sec  also,  Neill  r.  Morlcv,  9 
Vcs.  478  ;  Price  v.  Berrington,  7  E.  L.  & 
E.  254;  Fitzlnigh  v.  Wilcox,  12  Barb. 
235.  Ill  Dane  v.  Kirkwall,  8  C.  &  P.  G79, 
it  was  htld,  tliat  to  constitute  a  defence  to 
an  action  for  use  and  occupation  of  a  house 
taken  by  the  defendant  under  a  written 
afrieemcnt,  at  a  stipulated  sum  ])er  annum, 
it  is  not  ciiou;^h  to  show  that  the  defend- 
ant is  a  lunatic,  and  that  the  house  w.os 
unnecessary  for  her ;  but  it  must  lie  also 
shown  tliat  the  ])lainti(f  knew  this,  and 
took  advantage  of  tlie  defendant's  situa- 
tion ;  and  if  that  be  shown,  tlie  jury  should 
find  for  tlie  defendant ;  and  they  cannot, 
on  these  facts,  find  a  verdict  for  the  plain- 
tiff for  any  smaller  sum  tiiau  that  specified 
in  tlie  ajirecment. 

(s)  Fitzhugh  V.  Wilcox,  12  Barb.  235  ; 
Wadsworth  /•.  Sherman,  14  Barb.  169. 
Coiilni  in  Penrisylvania,  /n  re  Ganfrwere's 
F'state,  14  Penn.  417.  In  Leonard  ).". 
Leonard,  14  I'ick.  280,  the  court  said  :  "  It 
is  sujrgestcd,  on  the  part  of  the  defendant, 
that  an  iiujuisitioii  of  lunacy  in  England 
is  not  conclusive  on  the  (juestion  of  sanity  ; 
but  it  is  a  siilHcicnt  answer,  that  such  an 
inquisition  is  very  ditlcront  from  the  ])ro- 
ceedings  in  a  court  of  probate  under  our 
statute.  Tlic  plaintiff  insists  that  the 
guardianship  is  conclusive  of  the  disability 
of  the  ward,  in  relation  to  all  subjects 
on  which  tlie  guardian  can  act,  and  that 
the  only  mode  of  preventing  this  ojicra- 
tion  is  by  itrocuring  the  guardiansbii)  to 
be  set  aside.  And  there  can  be  no  ([ues- 
tioii  but  that  the  judge  of  i)rol)atc  has 
power  to  reconsider  the  subject,  and  if  it 
sliall  ai>pcar  that  the  cause  for  the  appoint- 
ment of  a  giuinlian  has  ceased,  or  tlutt  the 
guardian  is  an  impro])cr  person  for  the 
office,  the  letter  of  guardianship  may  be 
revoked.  McDonahl  c.  Morton,  1  Mass. 
H.  543.  In  the  case  of  White  v.  Palmer, 
4  Mass.  R.  147,  it  was  Md  that  the  letter 
of  guardianship  was  competent  evidence 


of  the  insanity  of  the  ward,  and  the  rea- 
.soning  tends  to  sliow  that  it  is  conclusive  ; 
but  this  was  not  the  question  then  before 
the  court.  If  thi.s  were  not  the  general 
principle  of  the  law,  the  situation  of  the 
guardian  woulil  be  extremely  unpleasant, 
and  it  would  be  almost  impossible  to  exe- 
cute the  trust.  In  every  action  he  might 
be  obliged  to  go  before  the  jury  upon  the 
question  of  sanity,  and  one  jury  might  find 
one  wa}%  and  anotlier  another.  We  are  of 
opinion  that  as  to  most  subjects  the  dccrce 
of  the  probate  court,  so  long  as  the  guar- 
dianship continues,  is  conclusive  evidence 
of  the  disabilitv  of  the  ward  ;  but  that  it  is 
not  conclusive  in  regard  to  all.  For  ex- 
ample, the  ward,  if  in  fact  of  sufficient 
capacity,  may  make  a  will,  for  this  is  an 
act  which  the  guardian  cannot  do  for  him. 
But  the  transaction  now  in  cpiestion  falls 
within  the  general  rule."  So  ])raceedings 
in  a  court  of  eipiiiy,  estal)lishing  the  lu- 
nacy of  a  party,  are  admissible  to  prove  the 
lunacy  in  an  action  at  law,  against  tiiird 
pei-sons  not  a  party  to  the  proceedings  in 
equity.  McCreight  v.  Aiken,  1  Kicc,  56. 
And  creditors  of  an  obligor  to  a  bond,  if 
not  interested  in  the  result,  are  competent 
witnesses  to  prove  the  obligor's  lunacy. 
Hart  V.  Deamer,  6  Wend.  497.  And  to 
prove  a  party's  lunacy  at  the  time  of  mak- 
ing a  contract,  evidence  of  the  state  of  his 
mind  bi'furc,  at,  and  af}er  such  time  is  ad- 
missible. Grant  i\  Thompson,  4  Conn. 
203.  Although  the  mere  opinion  of  wit- 
nesses not  medical  men,  relative  to  the 
sanity  of  a  party,  arc  not  admissii)lc,  yet 
their  opinions,  in  connection  with  the  facts 
upon  which  they  arc  founded,  may  be. 
(Jrant  r.  Thompson,  4  Conn.  203  ;  Mc- 
Curry  v.  Iloojier,  12  Ala.  823. 

(0  Sergeson  v.  Sealey,  2  Atk.  412; 
Faulder  r.  Silk,  3  Camp.'l26.  And  the 
sanie  rule  wa.s  rccognized  in  Hart  v. 
Deamer,  6  Wend.  497.  Sec  also  IIoi)Son 
V.  Boyd,  6  B.  Monroe,  29(1. 

[3o5] 


-814  THE    LAW    OP   CONTRACTS.  [BOOK   I. 

into  contracts,  it  is  not  the  purpose  nor  effect  of  such  provisions 
to  annul  his  contract  for  necessaries,  if  made  with  good  faith 
by  the  other  party,  and  under  circumstances  which  justify  the 
contract;  (w)  and  if  a  lunatic  be  sued,  or  a  claim  is  made  upon 
him,  perhaps  any  person,  though  not  expressly  authorized,  may 
in  his  case,  as  in  that  of  an  infant,  make,  in  good  faith,  a  legal 
tender  for  him,  which  shall  enure  for  his  benefit. 

Courts  of  law,  as  well  as  equity,  afford  protection  to  those 
who  are  of  unsound  mind.  They  endeavor  to  draw  a  line  be- 
tween sanity  and  insanity,  but  cannot  distinguish  between 
degrees  of  intelligence.  Against  the  consequence  of  mere 
imprudence,  folly,  or  that  deficiency  of  intellect  which  makes 
mistake  easy,  but  does  not  amount  to  unsound  or  disordered 
intellect,  even  equity  gives  no  relief,  unless  another  party  has 
made  use  of  this  want  of  intelligence  to  do  a  positive  wrong- 
ful act.  (u) 

In  this  country,  where  provision  is  made  by  statute  that  per- 
sons of  unsound  mind  may  be  put  under  guardianship,  this 
may  be  done  u})on  a  representation  and  request,  either  of  the 
authorities  of  the  town  in  which  he  resides,  or  of  his  friends  or 
relatives,  and  after  proper  inquiry  into  the  facts,  and  into  the 
evidence  and  character  of  the  insanity.  The  guardian  so  ap- 
pointed gives  bonds  for  the  due  management  and  care  of  the 
estate  and  person  of  the  insane.  He  then  is  put  into  posses- 
sion of  the  estate  of  his  ward,  and  has  the  general  disposition 
and  control  of  it. 

Similar  provisions  are  often  made  with  respect  to  persons 
mentioned  in  the  next  section. 


(u)  McCrillis  v.  Bartlett,  8  N.  H.  569.       1  Fonbl.  Eq.  5th  cd.  66 ;  Lewis  v.  Pead,  1 
(v)  Osmond  I'.  Fitzrov,  3  P.  Wms.  129  ;     Vcs.  Jr.  19. 

[336] 


en.  XIX.]     PERSONS  or  insufficient  mind  to  contract.       *315 


SECTION    II. 

spendthrifts. 

In  regard  to  these  persons,  the  appointment  of  a  guardian, 
and  the  depriving  them  of  all  power  over  their  own  property, 
*is  generally  put  on  the  ground  of  a  danger  that  they  may  be- 
come chargeable  to  the  town  or  other  body  corporate  who  will 
be  bound  to  support  them  if  they  become  paupers.  The  appli- 
cation must  come,  therefore,  from  the  authorities  of  such  town  ; 
and  set  forth  that  the  party,  by  drinking,  gaming,  or  other 
debauchery,  is  so  spending  and  wasting  his  means  as  to  be  in 
danger  of  becoming  chargeable.  Here  also  there  is  to  be  a  judi- 
cial inquiry  into  the  facts,  after  due  notice  to  the  alleged  spend- 
thrift;  and  upon  a  finding  of  the  facts  in  accordance  with  the 
petition,  a  guardian  is  appointed  as  before,  and  after  such 
appointment  all  contracts  of  the  spendthrift,  except  for  neces- 
saries, are  void.  Where  a  provision  is  made  for  recording  such 
complaint  and  petition  in  a  public  registry,  no  valid  contract, 
excepting  as  before  for  necessaries,  can  be  made  by  the  spend- 
thrift, after  such  record,  provided  a  guardian  be  subsequently 
aj)point('d  on  the  petition,  (ic)  And  it  has  been  held  that  the 
acknowledgment  or  new  promise  of  a  spendthrift  under  guar- 
dianship is  not  sufficient  to  take  a  former  promise  out  of  the 
statute  of  limitations,  (x) 


(w)  It  was  Iip/d  in  Rinitli  r.  Spooncr,  3  S/inir,  C.  .!.,  said  :  "The  question,  tlicn, 
Pirk.  22'J,  that  tlio  Massachusetts  statute  is,  whether  a  speniltlirift,  under  <ruardian- 
of  1818,  c.  GO,  whieli,  in  ease  a  {ruanlian  ship,  is  eonjpetent  to  make  a  valideontraet 
slmll  he  ap]K)inted  to  a  spendthrift,  avoids  for  the  ])ayuient  of  money.  Tiie  phiintitf 
"  every  ;;ift,  har<;ain,  sah',  or  transfer  of  relies  upon  Smith  r.  Spooner,  ."l  I'iek. 
any  real  or  personal  estate,"  made  hy  the  229,  as  decisive.  But  we  think  that  that 
spendthrift  after  the  complaint  of  the  rase  turns  ujion  a  very  ditlerent  principle, 
selectmen  to  the  jud;re  of  prohate,  .nnd  the  That  action  was  hrouf^ht  u|)on  a  note  exe- 
order  of  notice  thereon  shall  have  heen  cuted  after  a  comidaint  made  hy  the  select- 
tiled  in  the  registry  of  deeds,  does  not  ap-  men,  and  hefore  the  actual  appointment  of 
ply  to  promissory  tioles.  IJiit  this  ca.se  a  j^uardian.  It  depcTided,  therefore,  wlud- 
is  ex]ilained  hy  S/mir,  C.  J.,  in  Manscm  r.  ly  upon  the  construction  of  the  statute  of 
Felton,  13  Pick.  2t)8,  as  depcndins;  wholly  1818,  providing  that  after  such  coinjdaint 
upon^tho  construction  of  the  statute  of  made,  and  a  copy  tiled  with  the  rejrister  of 
1818.  deeds,  every  frift,  harfrain,  sale,  or  transfer 

(.r)  In  Manson  i-.  Fclton,  13  Pick.  206,  of  real  or  personal  estate,  shall  he  void. 

VOL.  I.                                             29  [337] 


316 


THE   LAW    OF   CONTRACTS. 


[book  I. 


SECTION    III. 


SEAMEN. 


The  reckless  and  improvident  habits  of  seamen,  and  their  in- 
ability to  protect  themselves  against  the  various  parties  with 
whom  they  deal,  have  induced  courts  both  of  law  and  equity  to 
extend  to  them' a  certain  kind  of  disability  for  their  protection  ; 
that  is,  certain  contracts  with  seamen,  taking  away  their  rights, 
or  laying  them  under  wrongful  obligations  are  annulled.  A 
number  of  statutes  have  been  enacted  both  in  England  and  in 
this  country  in  relation  to  the  shipping  articles,  as  they  are 
termed,  or  the  contracts  by  which  seamen  engage  their  services 
for  a  voyage.  The  Act  by  which  this  subject  is  principally 
governed  at  this  time  is  that  of  1813,  ch.  2.  And  it  has  been 
very  distinctly  decided  that  any  stipulations  in  shipping  articles, 
which  derogate  from  the  general  rights  and  privileges  of  sea- 
men, will  be  held  void  in  admiralty,  and  to  a  certain  extent  at 
common  law,  unless  it  shall  be  made  apparent  by  proof  on  the 
part  of  the  owner  that  the  nature  and  effect  of  such  stipulations 


It  was  decided  on  the  ground  that  before 
the  actual  appointment  of  a  guardian 
there  was  no  disability  to  mais.e  contracts, 
except  tlie  specific  disability  created  by 
the  statute ;  that  such  a  disability  ought 
not  to  be  extended  by  construction,  being 
in  derogation  of  a  general  right  and  power 
of  persons  over  their  own  property ;  and 
that  the  making  of  a  promissory  note  was 
not  a  gift,  sale,  or  transfer  of  property 
within  the  meaning  of  the  act.  It  is  to 
be  remarked  that  the  disability  created  by 
this  act  is  to  take  eftect  upon  a  mere  com- 
plaint, before  any  adjudication,  or  even 
inquiry  into  the  truth  of  the  facts  charged, 
and  before  the  appointment  of  a  respon- 
sible officer  competent  and  bound  to  take 
charge  of  the  property,  and  provide  for 
the  wants  of  the  spendthrift  and  those  de- 
pendent on  him.  These  considerations 
form  a  marked  distinction  between  the 
case  of  an  actual  adjudication,  conclusive- 
ly fixing  the  disability  contemplated  by 

[338] 


the  statute,  and  appointing  a  guai-dian  to 
act  in  place  of  the  person  disabled,  and 
the  limited  and  temporary  restraint  estab- 
lished by  the  statute  of  1818,  on  the  con- 
struction of  which  the  case  of  Smith  v. 
Spooner  was  decided.  But  there  are  sev- 
eral expressions  in  the  opinion  of  the 
court,  in  that  case,  implying  a  distinction 
in  their  minds  between  the  case  of  a  per- 
son actually  under  guardianship,  and  that 
of  a  person  in  relation  to  whom  the  in- 
cipient measures  have  been  taken  to  estab- 
lish such  a  guardianship.  The  court  speak 
of  the  note,  made  after  complaint  filed, 
but  before  the  a])pointment  of  a  guardian, 
as  a  note  made  '  on  the  eve  of  a  disabil- 
ity to  contract.'  And  the  closing  re- 
marks in  the  opinion  of  the  Chief  Jus- 
tice strongly  implied  the  same  conclu- 
sion." Shearman  v.  Akins,  4  Pick.  283. 
And  see  Pittam  v.  Foster,  1  B.  &  C.  248 ; 
Ward  V.  Hunter,  6  Taunt.  210. 


CH.   XIX.]      PERSONS   OF   INSUFFICIENT   MIND   TO    GONTRACT.  *317 

were  explained  to  and  understood  by  the  seaman,  and  an  addi- 
tional compensation  allowed  him,  fully  adequate  to  all  tliat  he 
lost  by  the  stipulation.  {//)  In  the  case  of  The  Juliana,  referred 
to  by  *Judge  Star//  in  Harden  v.  Gordon,  the  true  doctrine  on 


(y)  Brovs-n  v.  Lull,  2  Sumner,  444  ; 
Harden  v.  Gordon,  2  Mason,  541  ;  3  Kent's 
Com.  193;  The  Juliana,  2  Dod.son,  504. 
In  Brown  i'.  Lull,  supra,  Ston/,  J.,  spcak- 
in<;  of  the  effect  of  a  stipulation  in  the 
BhippinfT  articles,  which  in  that  case  was 
relied  upon  as  controUinfj  the  ri<;ht  of  the 
seaman  to  wajres,  said  :  "  It  is  well  known 
that  tlie  shippinjj;  articles,  in  their  common 
form,  are  in  perfect  coincidence  with  the 
general  principles  of  the  maritime  law  as 
to  seamen's  wages.  It  is  equally  well 
known  that  courts  of  admiralty  are  in  the 
habit  of  watching  with  scrupulous  jealousy 
every  deviation  from  these  princi[)les  in 
the  articles,  as  injurious  to  the  rights  of 
seamen,  and  founded  in  an  unconscionable 
ine(|uality  of  benefits  between  the  parties. 
Seamen  are  a  class  of  persons  remarkable 
for  their  rashness,  thoughtlessness,  and  im- 
providence. They  are  generally  necessi- 
tous, ignorant  of  the  nature  and  extent  of 
their  own  rights  and  privileges,  and  for  the 
most  part  incapable  of  duly  appreciating 
their  value.  They  combine,  in  a  singular 
manner,  the  apparent  anomalies  of  gal- 
lantry, extravagance,  profusion  in  expen- 
diture, indifference  to  the  future,  credulity, 
which  is  easily  won,  and  confiilence,  which 
is  readily  surprised.  Hence  it  is  that  bar- 
gains between  them  and  shipowners,  the 
latter  being  persons  of  great  intelligence 
anil  shrewilness  in  business,  are  deeiTicd 
open  to  much  observation  and  scrutiny  ; 
for  they  involve  great  ineipiality  of  knowl- 
edge, of  forecast,  of  power,  and  of  comli- 
tion.  Courts  of  admiralty  on  this  account 
are  accustomed  to  consider  seamen  as 
j)eculiarly  entitled  to  their  ]Motection  ;  so 
that  they  have  been,  by  a  somewhat  bold 
figinv,  often  said  to  be  favorites  of  courts 
of  admiralty.  In  a  just  sense  they  an;  so, 
Ko  far  as  the  maintenance  f)f  their  rights, 
ami  the  ])rotcction  of  their  interests  against 
the  effects  of  the  superior  skill  and  shrewd- 
ness of  masters  and  owners  of  ships  arc 
concerned.  Courts  of  admiralty  arc  not 
by  their  constitution  and  jurisdiction  con- 
fined to  the  mere  dry  and  ]K)sitive  rules  of 
the  (■(iinmon  law.  lint  tbey  act  U])on  the 
enlarged  and  liberal  jurisprudence  of 
courts  of  equity,  and  in  short,  so  far  as 
their  powers  extend,  they  act  as  courts  of 


equity.  Whenever,  therefore,  any  stipula- 
tion is  found  in  the  shipping  articles  which 
derogates  from  the  general  rights  and 
privileges  of  seamen,  courts  of  admiralty 
hold  it  void,  as  founded  upon  imposition, 
or  an  undue  advantage  taken  of  their 
necessities  and  ignorance  and  improvi- 
dence, unless  two  things  concur  ;  first,  that 
the  nature  and  ojieration  of  the  clause  is 
fully  and  fairly  explained  to  the  seamen  ; 
and  secondly,  that  an  additional  comjjen- 
sation  is  allowed,  entirely  adequ.ite  to  the 
new  restrictions  and  risks  imposed  upon 
them  thereby.  This  doctrine  was  fully 
expounded  by  Lord  Stowell,  in  his  admi- 
ral)le  judgment  in  the  case  of  The  Juliana, 
(2  Uods.  K.  504)  ;  and  it  was  much  con- 
sidered by  this  court  in  the  ease  of  Harden 
V.  Gordon,  (2  Mason,  \l.  541,  556,  557)  ; 
and  it  has  received  the  high  sanction  of 
Mr.  Chancellor  Kent  in  his  Commentaries, 
(iii.  §  40,  p.  193).  I  know  not,  indeed, 
that  this  doctrine  has  ever  been  broken  in 
upon  in  courts  of  admiralty  or  in  courts  of 
eciuity.  The  latter  courts  are  accustomed 
to  apply  it  to  classes  of  cases,  far  more  ex- 
tensive in  their  reach  and  operation  ;  to 
cases  of  young  heirs  selling  their  expect- 
ancies ;  to  cases  of  reversioners  and  remain- 
der-men dealing  with  their  estates  ;  and  to 
cases  of  wards  dealing  with  their  guar- 
dians ;  and  above  all  to  cases  of  seamen 
dealing  with  their  prize-money  and  other 
interests.  If  courts  of  law  have  felt  them- 
selves bound  down  to  a  more  limited  ex- 
ercise of  jurisdiction,  as  it  seems  from  the 
cases  of  Appleby  i-.  Dodd,  (8  East.  300,) 
and  Jesse  v.  Rov,  (1  Croinj).  Jerv.  & 
Kosc.  K.  316,329,  339,)  that  they  an\  it 
is  not  that  they  are  insensible  of  the  ju.s- 
tice  and  importance  of  these  considera- 
tions, iiut  l)ecause  they  are  restrained  from 
api)lying  them  by  the  more  strict  rules  of 
the  jiH'ispnidence  of  the  common  law, 
which  they  are  called  upon  to  administer." 
In  the  case  of  The  Betsy  &  Bhoda,  in  the 
District  Court  of  Maine,  (3  N.  Y.  Legal 
Observer,  215,)  it  was  //</</  that  a  negoti- 
able note  taken  by  a  seaman  for  wages, 
will  not  extinguish  his  claim  for  wages, 
nor  his  lien  on  the  ship,  nidess  he  be  in- 
formed of  this  effect,  and  have  additional 
security  given  him  by  way  of  compensation. 

[339] 


318* 


THE    LAW    OF   CONTRACTS. 


[book  I. 


this  subject  is  set  forth  by  Lord  Sloivcll  with  great  clearness 
and  force.  The  general  principle  in  all  these  decisions  is,  that 
where  a  man  has  made  a  promise  to  one  who  has  taken  a 
wrongful  advantage  of  his  circumstances  or  his  necessities,  he 
shall  not  be  bound  by  such  promise.  And  the  same  principle 
has  been  enforced  against  seamen  ;  as  where  in  the  *course  of  a 
voyage  they  compelled  the  master  to  make  a  new  contract  with 
them  for  higher  wages,  by  threats  of  desertion,  (z)  And  con- 
tracts made  with  pilots  or  salvors,  under  circumstances  of 
necessity,  for  exorbitant  or  unjust  compensation,  have  been  set 
aside  on  the  same  principle.  But,  in  general,  contracts  respect- 
ing the  wages  of  seamen  will  be  construed  liberally  in  their 
favor,  in  all  cases  where  there  may  be  room  for  such  construc- 
tion. As  where  by  the  usual  clause  no  seaman  was  entitled  to 
his  wages,  or  any  part  thereof,  until  the  arrival  of  the  ship  at 
the  port  of  discharge,  the  words  italicized  are  not  construed  as 
a  condition  precedent,  but  only  as  determining  the  time  and 
place  of  payment,  (a) 


(z)  Bavtlett  v.  Wyman,  14  Johns.  261. 
In  this  case  the  court  said  that  the  new 
contract  made  by  the  master  was  not  hind- 
ing;  on  iiim,  because  made  "  in  contraven- 
tion of  the  policy  of  the  Act  of  Congress 
of  tlie  20th  July,  1790.  This  statute  re- 
quires, under  a  penalty,  every  master  of  a 
ship  or  vessel,  hound  from  a  port  in  the 
United  States  to  any  foreiLin  port,  before 
he  proceeds  on  the  voyage,  to  make  an 
agreement  in  writing  or  print  with  every 
seaman  or  mariner  on  board,  with  the  ex- 
ception of  apprentices  or  servants,  declar- 
ing the  voyage,  and  term  of  time  for 
which  the  seaman  or  mariner  shall  be 
shipped.  In  the  present  case  this  was 
done,  and  the  rate  of  wages  fixed  at  seven- 
teen dollars  per  month  for  the  whole  voy- 
age. To  allow  the  seamen,  at  an  inter- 
mediate port,  to  exact  higher  wages, 
under  the  threat  of  deserting  the  slii]),  and 
to  sanction  this  exaction  by  holding  the 
contract,  thus  extorted,  binding  on  the 
master  of  the  ship,  would  be  not  only 
against  the  plain  intention  of  the  statute, 
but  would  be  holding  out  encouragement 
to  a  violation  of  duty,  as  well  as  of  con- 
tract. The  statute  protects  the  mariner, 
and  guards  his  rights  in  all  essential 
points ;    and  to   put   the   master  at   the 

[  340  1 


mercy  of  the  crew  takes  away  all  reciproc- 
ity." 

(a)  Swift  V.  Clark,  15  Mass.  173  ;  John- 
son V.  Sims,  1  Pet.  Ad.  21.5;  Flanders' 
Marit.  Law,  §  404  ;  The  Schooner  Emu- 
lous &  cargo,  1  Sumner,  207  ;  The  A.  D. 
Patchin,  1  Blatch.  C.  C.  Reps.  414.  And 
in  The  George  Home,  1  Hagg.  Ad.  370, 
on  an  engagement  to  go  "from  London  to 
Eatavia,  tiie  East  India  si-as  or  elsewhere, 
and  until  the  final  arrival  at  any  port  or 
ports  in  Europe."  It  was  held,  that  upon 
the  arrival  of  the  ship  at  Cowes  for  orders, 
(as  previoush/  agreed  between  the  owners 
and  master's,)  the  seamen  were  not  bound 
to  proceed  on  a  further  voyage  to  Rotter- 
dam. But  in  Webb  v.  Duckingtield,  13 
Johns.  391,  where  a  seaman  who  had 
signed  shipping  articles,  by  which  he 
engaged  not  to  absent  himself  from  the 
vessel  without  leave,  "  until  the  voyage 
was  ended,  and  the  vessel  was  discharged 
of  her  cargo,"  on  the  vessel's  arriving  at 
her  last  port  of  discharge,  and  being  there 
safely  moored,  refused  to  remain  and  assist 
in  discharging  the  cargo,  but  absented 
himself  without  leave  ;  it  was  held  that  by 
such  desertion  he  had  forfeited  his  wages. 
—  So  mutinous  and  rebellious  conduct  of 
the  mariner,  if  persisted  in,  forfeits  their 


CH.   XIX.]      PERSONS    OF   INSUFFICIENT   MIND    TO    CONTRACT.  319 


SECTION    IV, 


PERSONS   UNDER   DURESS. 


A  contract  made  by  a  party  under  compulsion  is  void  ;  be- 
cause consent  is  of  the  essence  of  a  contract,  and  wiiere  there  is 
compulsion  there  is  no  consent,  for  this  must  be  voluntary,  [b) 
Such  a  contract  is  void  for  another  reason.  It  is  founded  on 
wrong.  The  violence  was  itself  an  injury  to  the  party  suffering 
it ;  the  party  using  the  violencp  had  no  right  to  do  so,  and  can- 
not establish  a  right  on  his  own  wrong-doing. 

It  is  not,  however,  all  compulsion  which  has  this  effect;  it 
must  amount  to  durifies,  or  duress.  But  this  duress  may  be 
cither  actual  violence,  or  threat,  (c)  And  actual  violence,  if  not 
so  slight  as  to  be  quite  unimportant,  is  sufficient  to  annul  a 
contract  made  ntidcr  its  influence.  Imprisonment  in  a  common 
gaol  or  elsewhere,  is  duress  of  this  kind  ;  but  to  have  this  effect 
it  must  either  be  unlawful  in  itself,  or,  if  lawful,  then  it  must  be 
accompanied  with  such  circumstances  of  unnecessary  pain, 
privation,  or  danger,  that  the  party  is  induced  by  them  to  make 
the  contract,  {d) 


« 


rifrht  to  wajies.  Relf  r.  Ship  Maria,  1 
I'et.  Ad.  186.  —  So  does  desertion;  and 
the  statute  of  the  United  States,  dechirin;; 
any  unautliorizcd  absence  of  a  seaman 
from  his  ship  for  forty-cif;ht  hours  to  l)e 
desertion,  applies  to  all  eases  where  the 
seaman  does  not  return  within  such  time, 
althon;:h  he  may  have  heen  jireventcd  hy 
the  sailing  of  the  ship.  For  the  ship  is 
not  bound  to  wait  for  him,  but  lie  is  hound 
to  rejoin  the  ship  within  that  period,  suo 
perirnlo.     C'olTin  i'.  Jenkins,  3  Story,  1((8. 

(b)  1  Rol.  Abr.  088. 

(c)  8  Bl.  Com.  131. 

(d)  Watkins  v.  Baird,  6  Mass.  .51 1  ; 
Richardson  v.  Duncan,  3  New  Ilainp.  .'508; 
StouflH-rr.  Latshaw,  2  Watts,  167  ;  Nelson 
V.  Suddarth,  1  lien.  v*i.  Munf.  3.')().  —  An 
arrest,  thoui,^b  for  a  just  cause,  ami  under 
lawful  authority,  yet  if  it  be  for  an  un- 
lawful ]>urpose,  is  duress  of  imprisonment. 
Severance  v.  Kimball,  8  New  Ilamp.  380. 
—  lu  Watkins   v.  Baird,  supra,  Parsons, 

29* 


C.  J.,  observed  :  "  It  is  a  general  rule  that 
imprisonment  by  order  of  law  is  not 
duress;  but,  to  constitute  duress  by  ira- 
])risonment,  cither  the  imprisonment  or 
the  <lnress  after  must  be  tortious  and  un- 
lawful. If,  therefore,  a  man,  sujiposing 
that  he  has  cause  of  action  against  another, 
by  lawful  jirocess  cause  him  to  be  arrested 
and  imprisoned,  and  the  defendant  volun- 
tarily executed  a  deed  for  his  deliverance, 
he  cannot  avoid  such  doeil  by  duress  of 
impri-ionment,  althou;:h,  in  fact,  the  plain- 
tirt'  hail  no  cause  of  action.  And  although 
the  imprisonment  be  lawful,  yet  unless  the 
deed  be  made  freely  and  voluntarily,  it 
may  be  avoided  by  duress.  And  if  the 
imprisonment  be  originally  lawful,  yet,  if 
the  party  obtaining  the  (iced  detain  the 
])risoner  in  prison  unlawfully  by  covin 
with  the  jailer,  this  is  a  duress  which  will 
avoid  the  deed.  But  when  the  imprison- 
ment is  unlawful,  although  by  color  of 
legal  process,  vet  a  deed  obtained  from  a 

[341] 


320-*32i 


THE    LAW    OF    CONTRACTS. 


[book  I. 


Duress  by  threats  exists  not  wherever  a  party  has  entered  into 
a  contract  under  the  influence  of  a  threat,  but  only  where  such 
a  threat  excites  a  fear  of  some  grievous  wrong ;  as  of  death,  or 
great  bodily  injury,  or  unlawful  imprisonment.  It  is  a  rule  of 
law,  which  is  applied  to  many  cases,  that  where  the  threat  is 
of  an  injury  for  which  full  and  entirely  adequate  compensation 
may  be  expected  from  the  law,  such  duress  will  not,  of  itself, 
avoid  a  contract,  for  the  threatened  person  ought  to  have  suffi- 
cient resolution  to  resist  the  threat  and  rely  upon  the  law;  as 
where  the  threat  is  of  an  injury  to  property,  or  of  a  slight  injury 
to  the  person,  [c)    But  no  *verdict  could  compensate  adequately 


prisoner  for  his  deliverance,  by  him  who  is 
a  party  to  the  uiihiwful  imprisonment, 
may  be  avoided  i)y  duress  of  imprison- 
ment. In  Allen,  92,  debt  was  sued  on  a 
bond,  and  duress  of  imprisonment  ijleaded 
in  bar.  The  plaintiif  had,  on  cliareing 
the  defendant  with  felony  in  stealing  a 
horse,  procured  a  warrant  from  a  justice, 
on  which  the  defendant  was  arrested  and 
imprisoned,  and  sealed  the  bond  to  the 
plaintiff  to  obt:un  his  discharge,  which  was 
done,  the  horse  appearing  to  be  his  own 
horse.  Rolle,  J.,  directed  the  jury  that  the 
proceedings  being  had  to  cover  the  de- 
ceit, the  bond  was  obtained  by  duress. 
And,  in  our  o|)iiiion,  it  is  a  sound  and 
correct  principle  of  law,  when  a  man  shall 
falsely,  maliciously,  and  without  probable 
cause,  sue  out  a  process,  in  form  regular 
and  legal,  to  arrest  and  imprison  another, 
and  shall  obtain  a  deed  from  a  part)'  thus 
arrested,  to  procure  liis  deliverance,  such 
deed  may  lie  avoided  by  duress  of  impris- 
onment. For  such  imprisonment  is  tor- 
tious and  unlawful,  as  to  the  ])arty  pro- 
curing it ;  and  he  is  answerable  in  dam- 
ages for  the  tort,  in  an  action  for  a  false 
and  malicious  prosecution ;  the  suing  of 
legal  process  being  an  aluise  of  the  law, 
an<l  a  jiroceeding  to  cover  the  fraud.  And 
althougii  Bridgman,  in  Lev.  ti8,  69,  is 
made  to  say  that  imprisonment  in  custody 
•  of  law  by  the  king's  writ,  will  not  be  du- 
ress to  avoid  a  deed,  when  the  arrest  is 
without  cause  of  action,  because  the  party 
ha,s  his  remedy  by  action  of  the  case,  yet 
tills  must  be  a  mistake,  as  tliere  is  no 
remedy  by  action  for  suing  a  groundless 
suit,  unless  the  suit  be  without  ])robable 
cause,  and  malicious.  And  if  it  be,  cer- 
tainly the  im])risonment  is  wrongful,  as  to 
the  party  who  maliciously  ])rocured  it." — 
In  llichardson  v.  Duncan,  3  New  Hamp. 

[342] 


30S,  it  was  held  that  where  there  is  an 
arrest  for  improper  purposes,  without  just 
cause,  or  an  arrest  for  just  cause,  but  with- 
out lawful  authority,  or  an  arrest  for  a  just 
cause,  and  under  lawful  authority,  for  an 
improper  purpose,  and  the  person  arrested 
pays  money  for  his  enlargement,  he  may 
be  considered  as  having  paid  the  money  by 
duress  of  imprisonment,  .and  may  recover 
it  back  in  an  action  for  money  had  and 
received. — But  an  agreement  by  a  pris- 
oner to  pay  a  just  debt,  made  while  under 
lei/al  imprisoimient,  cannot  be  avoided  on 
the  ground  of  duress.  Sliephard  r.  Wat- 
rous,  3  Caines,  166;  Crowell  v.  Gleason, 
1  Fairf.  S-25 ;  Meek  v.  Atkinson,  1  Bailey, 
84.  —  But  a  bond  given  for  the  mainte- 
nance of  a  bastard  child,  as  required  by 
some  statute,  is  void  for  duress,  if  the 
warrant  and  other  proceedings  beibre  the 
magistrate  are  not  according  to  the  statute, 
risher  i-.  Shattuck,  17  Pick.  252.  —  So  a 
bond  executed  through  fear  of  unlawful 
im|)risonmcnt  maj'  be  avoided  on  account 
of  duress.  Whitefield  v.  Longfellow,  13 
Maine,  146. — But  contra,  as  to  a  mort- 
gage given  as  security  for  payment  of  a 
sum  to  the  county,  as  the  condition  of  a 
pardon.  Rood  v.  Winslow,  2  Doug. 
(Mich.)  68.  —  A  threat  by  a  judgment 
creditor  to  levy  his  execution  is  not  such 
duress  as  to  make  void  an  agreement  to 
pay  the  sum  due.  Wilcox  v.  Howland, 
23'  Pick.  167;  W.aller  v.  Cralle,  8  B. 
Monroe,  11. — Nor  a  threat  of  lawful 
imprisonment.  Eddy  c.  Hcrrin,  17  Maine, 
3."j8  ;  Alexander  i'.  Pierce,  10  New  Hamp. 
497.  —  And  a  note  given  to  ol>tain  the 
release  of  property  from  an  illeijul  levy  of 
an  execution  is  not  void.  Bingham  v. 
Sessions,  6  Sm.  &  Mar.  13. 

(e)  Atlce  V.  Backhouse,  3  M.  &  W.  642; 
Sumner  v.  Ferryman,  11  Mod.  201 ;  Ast- 


en.  XIX.]      PERSOXS    OF   INSUFFICIEXT   MIXD    TO    CONTRACT.  -321 

for  loss  of  limb,  or  for  great  personal  violence,  and  no  man  shall 
be  held  bound  to  incur  such  a  danger.  These  distinctions, 
however,  would  not  now^  jjrobably  have  a  controlling  power  in 
this  country;  but  where  the  threat,  whether  of  mischief  to  the 
person  or  the  property,  or  to  the  good  name,  w^as  of  sufficient 


ley  V.  Reynolds,  Strange,  915.  It  is  on 
this  ground,  perhaps,  that  in  I-^nglaiid 
duress  of  one's  propcrfi/  is  not  suflieient  to 
avoid  a  eoiitraet.  Atlee  v.  Backhouse,  3 
M.  &  W.  C50  ;  where  J\i,irf,  B.,  said : 
"  Tiiere  is  no  douht  of  the  proposition  laid 
down  iiy  Mr.  Erie,  that  if  goods  are  wroii;:- 
fully  taken,  and  a  sum  of  money  is  j)aid, 
simply  for  the  purpose  of  ohtaining  posses- 
sion of  those  goods  again,  without  any 
agreement  at  all,  especially  if  it  l)e  paid 
under  protest,  that  money  can  he  recov- 
ered hack  ;  not  on  the  ground  of  dunss, 
because  I  tliink  that  the  law  is  clear,  al- 
though there  is  some  case  in  Viner's 
Ahridgment,  Duress,  (B)  3,  to  tlie  con- 
trary, that  in  order  to  avoid  a  contract  hy 
reason  (jf  duress,  it  nnist  l)e  duress  of  a 
man's  person,  not  of  ids  goods;  aii<l  it  is 
so  laiil  down  in  lSlie])pard's  Touchstone, 
(p.  61 ) ;  hut  the  ground  is,  that  it  is  not 
a  voluntary  j)ayment.  If  my  goods  have 
been  wron}:fully  detained,  and  I  pay 
money  siiii)ily  to  obtain  them  again,  that 
being  paid  under  a  s|)ecies  of  duress  or 
constraint  may  be  recovered  back  ;  Init  if, 
wliile  my  gooifs  are  in  possession  of  ano- 
ther person,  I  make  a  binding  agreement 
to  pay  a  certain  sum  of  money  and  to  re- 
ceive them  ba(  k,  that  cannot  be  avoided 
on  the  groimil  of  duress."  Skeate  r. 
Beale,  11  Ail.  &  El.  98.3.  In  tliis  ca.«c 
Lord  Ih'niiKin,  C.  J.,  said  :  "  We  consider 
tile  law  to  l)C  clear,  and  founded  on  good 
reason,  that  an  agreement  is  not  voiil  be- 
cause made  under  duress  of  goods.  There 
is  no  distinction  in  this  resjjeet  between  a 
deed  and  an  a;rreement  not  under  seal ; 
and,  with  ret^ard  to  the  former,  tlie  law  is 
laid  down  in  2  Inst.  4S;{,  and  She|)|)ard's 
Touchstone,  61 ,  and  the  distinction  pointed 
out  between  duress  of  or  menace  to  the 
person,  and  duress  of  goods.  The  former 
is  a  constraininir  force,  which  not  only 
takes  away  the  free  agency,  liut  may 
leave  no  room  for  appeal  to  the  law  for 
remedy  :  a  man,  therelore,  is  not  bound  by 
the  aga'cment  which  he  enters  into  umler 
such  cireumstanecs ;  but  the  fear  that 
goods  may  be  taken  or  injured  does  not 
deprive  any  one  of  his  free  agency  who 


possesses  that  ordinaiy  degree  of  firmness 
which  the  law  requires  all  to  exert."  In 
tills  country,  however,  it  has  been  hfld  that 
duress  of  goods  would  under  some  circum- 
stances avoid  a  man's  note  or  iiond.  Sas- 
portas  r.  Jennings,  1  Bay,  470 ;  Collins  v. 
Westl)ury,  2  id.  211.  In  this  last  ease  the 
law  was  thus  laid  down  by  the  court : 
"  8o  cautiously  does  the  law  watch  over 
all  contracts  that  it  will  not  permit  any  to 
be  l)iiiding  liut  such  as  arc  made  by  per- 
sons perfectly  free,  and  at  full  lil)erty  to 
make  or  refuse  such  contnirts,  and  that  not 
only  with  respect  to  their  persons,  but  in 
regard  to  their  gwds  and  dutttcls  also. 
Contracts  to  be  binding  must  not  i)e  made 
under  any  restraint  or  fear  of  their  per- 
sons, otherwise  they  are   void 

So,  in  like  manner,  duress  of  goods  will 
avoid  a  contract,  where  an  unjust  and 
unreasonable  advantage  is  taken  of  a 
man's  necessities,  by  getting  his  goods  into 
his  pos.session,  and  there  is  no  other  speedif 
means  left  of  getting  them  iKirk  afjain  but 
by  giving  a  note  or  a  liond,  or  where  a 
man's  neeessitics  may  be  so  great  as  not 
to  admit  of  the  ordinary  jiroccss  of  law,  to 
aHord  him  relief,  as  w:ls  determined  in  this 
court  after  solemn  argument,  in  the  case 
of  Sasportas  v.  Jennings,  1  Bay,  470 ; 
also  in  the  case  of  Astley  v.  Beynolds, 
Strange,  915."  See  also.  Nelson  v.  Sud- 
darth,'  1  Hen.  &  Munf.  3.'J0  ;  Foshay  v. 
Ferguson,  5  Hill,  158,  where  Bronsoii,J., 
said :  "  I  entertain  no  doubt  that  a  con- 
tract procured  by  threats  and  the  fear  of 
battery,  or  the  destruction  of  proi)erty, 
may  be  avoided  on  tlie  ground  of  duress. 
There  is  nt)thing  but  the  form  of  a  con- 
tract in  such  a  ease,  witliout  the  sulistance. 
It  wants  the  voluntary  assent  of  the  party 
to  be  bound  by  it.  And  why  should  the 
wrongdoer  derive  an  advantage  from  his 
tortious  act  ?  No  good  reason  can  be 
as>igned  for  upholding  such  a  transac- 
tion." Although  in  England  a  contract 
may  not  be  avoided  for  duress  of  goods, 
yet  money  paid  imdcr  such  duress  may  be 
recovered  back.  See  Oates  i-.  Hudson,  5 
£.  L.  &  E.  469,  and  uote. 

[343] 


322* 


THE   LAW    OF   CONTRACTS. 


[book  I. 


importance  *to  destroy  the  threatened  party's  freedom,  the  law 
would  not  enforce  any  contract  which  he  might  be  induced  by 
such  means  to  make.  And  where  there  has  been  no  actual 
contract,  bat  money  has  been  extorted  by  duress,  under  circum- 
stances which  give  to  the  transaction  the  character  of  a  pay- 
ment by  compulsion,  it  may  be  recovered  back.  (/) 

A  contract  made  under  duress  is  not,  however,  void,  but  only 
voidable ;  and  it  may  be  ratified  and  affirmed  by  the  party  upon 
whom  the  duress  was  practised,  (g) 


if)  Chase  v.  Dwinal,  7  Grecnl.  134  ; 
Gates  V.  Ilodson,  5  E.  L.  &  E.  469,  and 
note.  But  wliere  a  person  has  paid  the 
amount  of  taxes  assessed  upon  him,  he 
cannot  recover  it  back,  upon  tlie  ground 
that  the  assessment  was  illegally  made,  if 
there  be  no  proof  that  he  was  compelled  to 
pay  any  portion  thereof  by  duress  of  his 
person  or  seizure  of  his  pro])erty,  or  that 
any  part  was  paid  under  protest,  and  to 
avoid  such  arrest  or  seizui'e.  The  mere 
fixct  that  the  taxes  were  paid  to  collectors, 
who  had  warrants  for  the  collection,  affords 
no  satisfactory  proof  of  payment  by  duress. 
Smith  V.  Readtield,  27  Maine,  145. 

(g)  Shep.  Toucli.  62,  2S8.     The  priv- 

[344] 


ilege  of  avoiding  a  contract  for  reason  of 
duress  is  personal,  and  none  can  take  ad- 
vantage of  it  but  the  party  himself. 
Huscorabe  i\  Standing,  Cro.  Jac.  187  ; 
Baylie  v.  Clare,  2  Brownl.  276  ;  McClin- 
tick  V.  Cummins,  .3  McLean,  1,58.  Per- 
haps, however,  this  privilege  extends  to 
sureties.  It  was  so  held,  in  Fisher  v.  Shat- 
tuck,  17  Pick.  252.  But  the  contrary  was 
expressly  adjudged  in  Huscombe  jj.  Stand- 
ing, Cro.  Jac.  187.  See  also,  McClintick 
V.  Cummins,  3  McLean,  158.  In  this 
case  it  is  said  that  the  father  and  son  may 
each  avoid  his  obligation  by  duress  of  the 
other ;  and  so  a  husband  by  duress  of  his 
wife.     See  also,  Bac.  Abr.  Duress,  (B). 


CH.  XX.] 


ALIENS. 


323 


CHAPTER  XX. 


ALIENS. 


An  alien,  by  the  definition  of  the  common  law,  is  a  person 
born  out  of  the  jurisdiction  and  allegiance  of  this  country,  ex- 
cepting only  the  children  of  public  ministers  abroad,  whose 
wives  are  American  women.  But  the  statute  of  29th  January, 
1795,.  declared  that,  "  the  children  of  citizens  of  the  United 
States,  born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  shall  be  considered  as  citizens  of  the  United  States." 
The  statute  of  the  14th  April,  1802,  is  more  obscure  on  this 
subject,  and  is  regarded  by  high  authority  {h)  as  leaving  this 
question  in  some  doubt.  We  do  not  believe  that  the  courts  of 
this  country  would  apply  to  this  question  those  principles  of 
the  corrmion  law  of  England  which  opjjose  tlie  provision  of  the 
statute  of  1795.  This  cannot,  however,  be  regarded  as  certain, 
until  it  be  settled  by  competent  adjudication  or  statutory  pro- 
vision. 

At   common    law    an    alien    cannot    acquire    title    to    real 


(/()  Cliiiiici'llor  Kent  says,  2  Coiiiin. 
52:  "It  |iliis  st!itiit(|  ai)|)lie(l  only  to 
the  eliildiX'ii  of  persons  wlio  lluii  in  re 
or  find  Ixen  citizens;  and  consequently 
the  lieneHt  of  this  ])iovision  narrows  rap- 
idly hy  tlic  la])se  of  time  ;  and  the  period 
will  soon  arrive  when  there  will  he  no 
Btatnlory  re;,'nlation  for  the  benefit  of 
children  horn  al)road,  of  American  |)ar- 
ents,  and  they  will  he  ohli;^cd  to  resort 
for  aid  to  tiie  dormant  and  douhtfiil  prin- 
ciples of  the  Knjrlish  o^innion  law 

But  the  wiiole  statute  provision  is  rc- 
markalily  loose  and  vaj:;ne  in  its  terms, 
and  it  is  lamentaMy  defective,  in  lieinj^ 
contined  to  tiie  case  of  children  of  parents 
•k\w  wei-o  citizens  in  lt*02,  or  had  heen 
so  previously.     The  former  act  of  Jan- 


nary  29tli,  170.5,  was  not  so;  for  it  de- 
clared generally  that  'the  children  of 
citizens  of  the  United  States,  horn  out  of 
the  limits  and  jurisdiction  of  tiie  United 
States,  shall  he  considered  as  citizens  of 
the  United  States.'  And  when  wc  con- 
sider the  universal  pro|)ensily  to  travel, 
the  liheral  intercourse  hetween  nations, 
the  extent  of  commercial  enterprise,  and 
the  tr<-'"iiii»  h'kI  spirit  of  our  municipal 
institutions,  it  is  quite  surj)rising  that 
the  rights  of  the  children  of  American 
citizens,  horn  ahroad,  should,  by  the  ex- 
isting: act  of  1802,  he  left  so  i)recarious, 
and  so  far  inferior  in  the  security  whieli 
had  heen  !.;iven  in  like  circumstances  by 
the  English  statutes." 


[340] 


324 


THE   LAW   OF   CONTRACTS. 


[book  I. 


property  by  descent,  nor  by  grant,  nor  by  operation  of  law. 
Nor  can  he  give  good  title  by  grant;  nor  can  he  transmit 
good  title  to  his  heir,  (i)  If  an  alien  take  land  by  purchase, 
he  may  hold  until  office  found,  and  may  bring  an  action 
for  the  recovery  of  possession ;  (j)  but  if  he  die,  the  land 
passes  at  once  to  the  State,  without  any  inquest  of  office,  (k) 
But  the  severity  of  these  rules  has  been  very  much  mitigated 
in  this  country,  somewhat  by  adjudication,  but  more  by  the 
various  statutes  of  the  States,  in  many  of  which,  and  in  the 
constitutions  of  some,  there  are  provisions  modifying  the  prin- 
ciples of  the  common  law  relative  to  aliens,  (/) 

In  respect  to  personal  property,  and  the  various  contracts 
in  relation  to  it,  and  the  obligations  which  these  contracts 
impose  upon  him,  and  the  remedies  to  which  he  may  resort 
for  breach  of  them,  the  alien  stands  very  much  upon  the 
same  footing  as  the  citizen.  An  alien  resident  within  a 
State    is    entitled    to    the    benefit    of  the    insolvent    laws,  {m) 


(i)  Calvin's  case,  7  Co.  25  a;  Col- 
lingwood  V.  Pace,  1  Vent.  417;  Jackson 
V.  Lunn,  3  Johns.  Cas.  109 ;  Levy  v. 
McCartee,  6  Pet.  102  ;  Jackson  v.  Green, 
7  Wend.  333 ;  Jackson  v.  Fitzsimmons, 
10  Wend.  1. 

{j)  Waugh  V.  Eiley,  8  Met.  295.  —  Sav- 
age, C.  J.,  in  Bradstreet  v.  Supervisors  of 
Oneida  County,  13  Wend.  548,  decided 
tliat  notwithstanding  the  ancient  rigor  of 
the  common  law,  such  an  action  might  be 
maintained.  "If  it  is  the  property  of  the 
alien  against  everybody  but  the  govern- 
ment, he  has  the  right  to  use  it ;  and  if 
necessary  to  prosecute  for  it,  surely  the 
right  to  prosecute  is  necessarily  conse- 
quent upon  his  right  to  its  enjoyment."  — 
In  Texas  an  alien  cannot  hohl  property 
except  in  particular  cases.  Merle  v.  An- 
drews, 4  Texas,  200.  It  was  held  in 
Ramircs  r.  Kent,  2  Cal.  558,  that  an  alien 
could  not  Ije  deprived  of  hxnd  or  of  any 
rights  incident  to  its  ownersliip,  bj'  proof 
of  alienage  in  any  proceeding  but  in  an  in- 
quest of  office. 

{k)  Co.  Lit.  2,  b;  Willon  y.  Berkley, 
Plowd.  229,  b,  230,  a;  Fox  v.  South- 
ack,  12  Mass.  143;  Fairfox  v.  Hunter,  7 
Cranch,  619;  Orr  v.  Hodgson,  4  Wheat. 
453.  See  also,  Wilbur  v.  Tobey,  16 
Pick.  179;  Foss  v.  Crisp,  20  id.  124; 
People  V.  Conklin,  2  Hill,  67 ;  Banks  v. 
Walker,  3  Barb.  Ch.  438. 

[346] 


(/)  This  subject  is  very  fully  considered, 
and  presented  with  great  clearness,  and 
an  abundant  illustration,  in  2  Kent's 
Comm.  Lect.  XXV. 

(?«)  Judd  i\  Lawrence,  1  Cush.  531. 
"  The  insolvent  laws  extend  in  terms  to 
all  insolvent  debtors  residing  within  this 
connnonwealth ;  and  this  language  un- 
questionably embraces  aliens  as  well  as 
native  or  naturalized  citizens,  unless  it  can 
be  shown  that  such  was  not  the  intention 
of  the  legislature.  It  has  been  argued 
that  this  appears  by  the  authority  given  to 
the  commissioner  to  assign  all  the  debtor's 
estate,  real  and  personal,  whereas  an  alien 
cannot  hold  or  effectually  assign  real 
estate.  But  if  this  were  so,  there  seems  to 
be  no  reason  why  the  personal  estate  of 
an  alien  insolvent  debtor  should  not  be 
distributed  among  his  creditors  under  the 
insolvent  laws  as  well  as  the  personal 
estate  of  native  citizens  who  have  no  real 
estate.  But  it  is  not  true  that  aliens  can- 
not hold  and  assign  real  estate.  It  is  true 
an  alien  cannot  take  by  descent,  but  he 
may  take  by  purchase  or  devise,  and  can 
hold  against  all  except  the  Commonwealth, 
and  can  be  divested  only  by  office  found, 
and,  until  office  found,  can  convey.  And 
whatever  title  the  insolvent  debtor  could 
convey  by  deed  may  be  assigned  by  stat- 
ute." 


CH.  XX.] 


ALIENS. 


•325 


And  in  the  recent  interesting  cases  respecting  trademarks, 
it  has  been  determined  that  he  is  entitled  to  the  same  pro- 
tection as  our  citizens.  (?;)  The  right  to  confiscate  the  debts 
and  property  of  alien  enemies  is  declared  to  exist  in  Con- 
gress, by  the  highest  judicial  authority;  (o)  but  the  exercise  of 
this  right,  it  may  well  be  hoped,  will  never  be  attempted,  (p) 
But  even  alien  enemies  residing  in  this  country  may  sue  and 
be  sued  as  in  time  of  peace,  on  the  ground  that  their  residence 
is  lawful  until  they  are  ordered  away  by  competent  authority, 
and  this  residence  gives  them  a  *right  to  protection,  (q)  Dur- 
ing this  residence  the  alien  is  equally  bound  with  the  citizen 
to  obey  all  the  lav^s  of  the  country  which  do  not  apply  specifi- 
cally and  exclusively  to  citizens. 


(n)  Coats  V.  Ilolbrook,  2  Sandf.  Ch. 
586 ;  Tavlor  v.  Carpenter,  id.  603,  3 
Story,  458;  11  Paige,  292;  2  W.  & 
M.  1.  Woodhimj,  J.,  in  a  lon<r  opinion 
reviewing  the  authorities  botli  English  and 
American,  sustains  the  doctrine  of  the 
text,  and  repreliends  in  tlie  strongest 
terms  any  attempt  to  phvcc  aliens  in  our 
Courts  upon  a  footing  different  from  our 
citizens,  contending  that  the  want  of  recip- 
rocity of  rights  to  our  citizens  in  foreign 
courts  might  be  a  good  reason  for  legisla- 
tion by  Congress,  but  would  not  In;  for 
this  court  to  deny  to  aliens  rights  guaran- 
teed to  them  by  the  Constitution,  and 
which  a  court  could  not  deny  without  an 
exercise  of  judicial  legislation.  "  The 
cannibal  of  tlie  Fejees  may  sue  here  in  a 
personal  action,  though  having  no  courts  at 
home  for  us  to  resort  to."  "  An  alien  is 
not  now  regarded  as    '  the  outside   bar- 


barian '  he  is  considered  in  China."  "  In 
the  Courts  of  the  United  States  they  arc 
entitled,  being  alien  friends,  to  the  same 
I)rotection  of  their  rights  as  citizens." 
Slorij,  J.,  3  Story,  458.  —  Barry's  Ciuse,  2 
How.  65;  5  id.  103.  An  alien  was 
allowed,  as  to  regaining  the  custody  of  his 
child  from  his  wife  and  her  connections, 
the  same  remedies  and  i)rincij)lcs  as  are 
granted  to  the  citizens. 

(o)  Hrown  i\  United  States,  8  Cranch, 
110;  The  Adventure,  id.  228,  229;  Ware 
v.  Hylton,  3  Dallas,  199. 

(//)  A  very  powerful  argument  against 
the  right  itself  was  made  by  Alexander 
Hamilton,  in  his  letters  signed  Camillus, 
published  in  1795. 

(V)  Wells  V.  Williams,  1  Ld.  Kavm. 
282  ;  Daubignv  v.  Davallon,  2  Anst.  Kep. 
462;  Clarke  'v.  Morey,  10  Johns.  69; 
Russell  V.  Skipwith,  6  Binn.  241. 

[347] 


S26  THE  LAW  OF  CONTr.ACTS.  [BOOK  I. 


CHAPTER  XXL 

SLAVES. 

Sect.  I.  —  Nature  of  the  Relation  of  Master  and  Slave. 

No  great  success  seems  to  have  attended  the  efforts  that 
have  been  made  to  ascertain  the  nature  and  incidents  of 
slavery,  as  it  exists  in  this  country,  by  referring  to  the  feudal 
law  or  the  civil  law.  Little  as  we  know  of  villeins  and  their 
legal  rights,  enough  is  found  in  the  books  to  show  that  their 
condition  differed  in  very  important  particulars  from  that  of 
negro  slaves.  And  although  there  is  doubtless  more  similarity 
to  be  recognized  in  the  slavery  of  the  ancients,  it  is  certain  that 
the  authority  of  the  American  master,  by  law  as  well  as  usage, 
is  many  degrees  short  of  that  despotic  power  with  which  his 
Roman  prototype  was  invested.  On  the  whole,  it  is  appre- 
hended that  African  slavery  in  America  is  so  far  sni  generis 
that  in  general  we  have  to  look  to  the  letter  of  the  statute-book, 
and  to  actual  and  existing  usage,  both  for  its  essential  qualities 
and  the  peculiar  rules  by  which  the  questions  to  which  it  gives 
rise  are  to  be  determined,  (r) 

As  slavery  is  in  derogation  of  natural  right,  and  exists  only 
by  positive  institution,  the  courts  of  this  country,  actuated  by 
the  spirit  of  the  common  law,  have  always  been  disposed  to 
apply  the  maxim,  Jura  in  omni  casu  libertati  dant  favorem.  {s) 

(?•)  Neal   r.   rarmcr,   9   Georgia,  553.  Yerg.  156.  —  Kespecting  the  condition  of 

As  to  tlie  nature  of  slavery,  see  Maria  v.  slaves  in  Massachusetts  before  the  Kevo- 

Sarbaugh,    2    Rand.    228;    Hudgins    v.  lution,  see Winchendon  t'.  Hatfield,  4  Mass. 

Wright,  1   H.  &   Munf.   139;  Common-  123. 

wealth  i^  Turner,   5  Rand.   678;  Seville         (s)  Co.  Litt.  124,  b,  citing  from  the  elo- 

j;.  Chretien,  5  Mart.  275 ;  Bynum  r.  Bos-  quent  passage  in   Fortescue,    (cap.   42.) 

tick,  4  Desaus.  267  ;  Jarnian  v.  Patterson,  "  Ab  homine  et   pro    vitio    introducta    est 

7   Monr.    645 ;    Fields   v.    The    State,    1  Servitus.      Sed    Libertas    a   Deo    hominis 

[348] 


cir.  xxr.]  SLAVES.  *S27 

And  of  this  inclination  we  shall  have  occasion  to  *see  many  ex- 
amples. But  while  it  can  never  cease  to  be  true  that  the  law 
favors  liberty,  there  are  limits  to  the  operation  of  this  as  of  all 
other  maxims,  (t)  And  when  the  fact  of  slavery  is  clear,  the 
nature  of  the  relation  of  master  and  slave  admits  of  no  modifi- 
cation ;  nor  will  courts  either  of  law  or  equity  lend  aid  to  the 
attempts  of  individuals  to  ingraft  upon  it  new  and  incongruous 
features.  A  slave  cannot  become  partially  free.  The  law 
recognizes  only  freedom  on  the  one  side  and  slavery  on  the 
other  ;  and  there  is  no  intermediate  status,  (ii)  Where  a  negro 
girl  was  given  by  will,  on  the  terms  that  she  was  to  be  held  not 
as  a  bound  slave,  but  under  the  care  and  tuition  of  the  legatee, 
with  an  allowance  of  wages  ;  and  that  her  children,  if  she  had 
any,  were  to  come  under  the  same  regulation  after  they  paid 
for  their  raising —  their  labor  to  be  equally  divided  amongst  all 
the  testator's  children,  if  they  chose  to  employ  them,  the  bequest 
was  adjudged  void,  (v)  So,  on  the  other  hand,  where  a  deed 
emancipating  a  female  slave  contained  a  reservation  to  the 
master  and  his  heirs  of  an  absolute  right  to  all  her  after-born 
children,  it  was  held  that  such  reservation  was  void,  and  that 
both  the  woman  and  her  children  were  unconditionally  free,  (iv) 
[f  partial  payments  have  been  made  to  the  owner  of  a  slave  for 
the  purpose  of  buying  his  freedom,  the  owner  continues  entitled 
to  all  the  services  of  the  slave,  with  fall  power  of  alienation  ; 
and  one  wiio  purchases  from  him,  on  condition  to  emancipate 
on  receipt  of  the  residue  of  the  slave's  value,  is  entitled  to  all 
the  slave's  services  until  payment  of  such  residue,  (x) 

(st  Indita  Aaluni'.     Quare  ijisn  <ih  IJoiniiie  obscn'c  that  no  one  rule  of  intcrpictatiou 

suhhita,  semper  rcd'tre  ijliscit,  tit  Jhrit  omne  in  law  or  contracts  oiijxht  ever  to  be  con- 

ijuod    LUttiUite    luitiiiiili   j.rivatur.      Quo  sidcrcd  of  so  much  consequence  as  to  cx- 

i]>se  tt  crudelis  judirandiui  rsl  (jui  Lihertati  dude    the   operation    of    others,    equally 

iion    J'avct.     JIac      rousidernntla     AitrfUip,  founded    in   justice   and    common    sense. 

Jura  in  omiti  casit   Lihertati  dant  Facor-  Freedom  must  not  he  so  favored  bv  inter- 

iin."                                                         .  prctation  as  to  depart  entirely  from  the  in- 

(t)  The    maxim    in   the   Roman    law,  tention  of  the  contraiting  parties,  apparent 

(cited  by  Green,  J.,  in  Isaac  v.  West,  6  on  the  contract  itself." 

Knud.  G52,)  is,  In  obscura  rohintate  mnmi-  (h)  See  Maria  v.  Surhaugh,  2  Rand.  228. 

milttiitis  fanitdiim  est  liliertiiti.     And  the  (r)   Wynii    r.     Carrell,    2    Grat.    227. 

following    reasonable    observations    were  And  for  another  fruitless  attem|)t  of  the 

made  by  Mtitkiws,  J.,  in  Cufly  r.  Castil-  kind,   sec  Rucker's  Adm'r  c.  Gilbert,  3 

Ion,  5  Mart.  4'Jtj :  "As  to  the  rule  reiiuir-  Leigh,  8. 

ing  the  interi)retation  in  doubtful  cases  to  (ir)  Fulton  v.  Shaw,  4  R.ind.  597. 

be  in  favor  of  freedom,  it  is  sufficient  to  (x)  Francois  v.  Lobrano,  10  Rob.  (La.) 

VOL.  I.  30  [349] 


328  THE  LAW  OF  CONTRACTS.  [BOOK  I. 

It  is  a  well  established  principle  that  partus  sequitiir  ventrem. 
The  stains  of  the  mother  is  the  status  of  her  children. 


SECTION    II. 

ACTION    FOE,   FREEDOM. 

For  the  trial  of  the  question  of  freedom  various  forms  of 
action  are  employed  ;  for  example,  trespass  and  false  imprison- 
ment, (f/)  an  action  on  the  case  in  the  nature  of  ravishment  of 
ward,  {z)  and  a  special  proceeding  upon  petition.  In  all  the 
cases  in  the  books  it  seems  that  a  wide  indulgence  is  granted 
to  the  claimant,  and  the  court  will  not  suffer  him  to  be  defeated 
by  an  omission  of  formalities  of  procedure.  When  an  action  is 
begun,  to  try  the  plaintiff"'s  right  to  freedom,  the  court  will  in- 
terfere, upon  cause  shown,  to  compel  the  defendant  to  have  him 
forthcoming  on  the  day  of  trial,  and  in  the  mean  time  to  treat 
him  with  humanity,  and  to  allow  him  reasonable  opportunity  to 
procure  evidence  ;  (a)  and  this  last  privilege  has  been  extended 
so  far  as  to  require  the  defendant,  where  (pending  the  original 
action)  a  strong  case  was  made  out  for  the  plaintift'upon  a  habeas 
corpus,  to  give  security  to  leave  the  plaintiff  at  liberty  until  the 
next  term  to  go  whither  he  pleased  in  order  to  procure  testi- 
mony, (b)  And  the  Supreme  Court  of  Louisiana,  where  the 
pleadings,  documents,  and  evidence  in  a  cause,  as  brought  before 
them  on  exceptions,  disclosed  no  ground  for  the  assertion  of 
freedom,  said  they  were  not  thereby  bound,  but  would  notice 
facts  de  hors  the  record ;  and  such  extrinsic  facts  suggesting  a 
new  question,  the  cause  was  remanded  for  its  trial,  [c) 

450. — The  Eoman  law,  which  dedarcs  (y)   Evans   v.   Kenneily,  1    Ilayw.  (N. 

that  although  a  slave  do  not  pay  the  whole  C.)  422. 

price  of  liis  freedom,  he  is  yet  entitled  (~)  Clifton  v.  Phillips,  1  MeCord,  469. 

thereto,  if  he  afterwards  make  up  the  de-  (a)  See  Gobcr  v.  Gobcr,  2  Hayw.  (N. 

ficiency  by  his  labor,  is  held  in  Louisiana  C.)  127;  Evans  r.  Kennedy,  1  id.  422; 

to  apply  only  to  such  as  are  made  free     Parker  v. ,  2  id.  34.5. 

instanter,  on  condition  of  paying  a  further         (h)  Parker  v. ,  2  Hayw.  (N.  C.) 

sum  infuturo,  not  to  those  whom  the  mas-  345. 

ter  promises  to  free  when  such  further  sum  (c)  Marie  Louise  ;•.  INIarot,  8  Louis.  R. 

shall  be  paid.     Cuffy  v.  Castillon,  5  Mart.  475.     This  was   an   action  claiming   the 

496.  emancipation  of  the  plaintiff's  daughter 

[350] 


1 


CII.    XXI.] 


SLAVES. 


*329-*330 


*The  issue  always  is  upon  the  plaintiff,  or  petitioner's  right 
to  freedom  against  all  the  world,  (r/)  The  jus  terlii  is  regarded 
as  a  complete  bar  to  his  claim,  and  it  is  not  sufficient  for  him 
to  show  a  want  of  title  in  the  party  in  possession. 

No  presumption  of  slavery  arises  against  a  party  asserting 
his  freedom,  from  the  length  of  time,  however  great,  that  he 
and  his  ancestors  have  been  held  in  slavery,  (e)  If  a  person 
held  as  a  slave  can  show  that  his  ancestor  in  the  female  line, 
no  matter  how  many  degrees  removed,  was  dc  jure  a  free 
woman,  he  may  vindicate  at  law  his  own  right  to  freedom.  (/) 
On  the  other  hand,  when  a  slave,  with  the  knowledge  of  his 
owner,  has  gone  at  large,  and  acted  as  if  free,  for  any  consider- 
able length  of  time,  a  jury  may  be  directed  to  presume  that  a 
deed  of  manumission  was  executed  with  all  required  formalities, 
and  if  it  would  be  invalid  unless  recorded  within  a  certain  time, 
that  it  was  so  recorded,  [g') 

There  is  a  presumption  against  every  negro,  in  an  action  *for 
his  freedom,  that  he  is  a  slave,  (h)     But  in  Delaware  where  the 


Josephine,  a  mulattress,  aged  twenty 
years.  It  appeared  tliat  the  owner  of  the 
girl  made  a  donation  of  her,  when  two 
years  oKl,  to  the  defendant,  at  tliat  time  a 
minor  and  a  female,  upon  condition  tiiat 
she  shouhl  In;  eman(i|)ated  at  tiie  age  of 
tiiirty  years  ;  and  this  donation  was  ac- 
cepted liy  ihe  agency  [of  the  defenchint's 
father  :  it  also  appcar^'d  tliat  a  few  days 
after  the  donation  the  fattier  executed  a 
declaration  in  writing,  attested  !iy  two 
witnesses,  stating  tliat  the  intention  of  the 
parties  to  tlic  deed  was  that  the  slave 
given  should  he  liherated  at  the  age  of 
twenty  years,  and  not  thirty  as  exjiressed 
ill  the  donation.  The  vcnlict  of  the  jury 
heing  for  the  plaintiff,  it  was  licld  uiiaii- 
tliorized  upon  the  case  as  stated,  since  the 
father  after  accepting  the  donation  in  he- 
half  of  the  defendant  was  /uiirtii.s  ollicio, 
and  no  act  or  declaration  hy  him  after- 
wards cotdd  att'cct  the  <lonee.  Hut  the 
court  said,  per  ^fal/tl^u■s,  J. :  "  The  case  is 
lieciiliar  in  its  nature  —  a  claim  f<n"  lih- 
eily !  .  .  .  .  It  is  an  action  hi  ought 
t<i  redeem  a  liel[)less  female  fn)iii  slavery  ; 
and  every  thing  which  may  properly  ho 
done  in  finuircm  itU'rlnlia  should  he  done, 
even  to  notice  facts  r/c  hom  the  record.  It 
was  statcfl  at  the  har,  and  not  denied,  that 
the  person  now  claiming  her  iinmeiliate 


emancipation  was  taken  by  her  owners  to 
France,  a  countiy  whose  institutions  do 
not  tolerate  slavery  or  involuntary  servi- 
tude in  any  manner,  and  was  placed  by 
them  under  the  direction  of  a  hair-dresser, 
to  learn  his  art.  Did  she  not  become  free 
in  France  ?  Being  brought  from  a  foreign 
country  into  tlie  United  States,  is  she  not 
free,  according  to  the  provisions  of  laws 
ena(  ted  by  Congress  ?  These  are  ques- 
tions which  we  will  not  now  solve  ;  hut 
we  deem  it  proper  to  remand  the  cause, 
in  order  that  they  may  be  jiut  in  a  train 
for  solution."  'I'lie  cause  was  afterwards 
tried  before  a  jury  u[ion  a  supplemental 
petition  setting  out  the  new  facts  above 
alluded  to,  and  a  verdict  heing  rendered 
for  the  )ilaintitf,  the  judgment  was  aftinned 
on  ai>p(al.  See  Mario  Ix)ui6e  r.  Marot,  9 
Louis.  K.  473. 

(d)  Harriett  r.  Eidgelv,  9  G.  &  Johns. 
174  ;  Cross  i'.  Black,  9  id.  198 ;  Bcrard  r. 
Berard,  9  Lfmis.  W.  158;  Tnnlean  r. 
Kobinette,  4  Mart.  .577. 

(r)  Butler  V.  Craig,  2  H.  &  McH.  21G, 
•236. 

(/■)  Rawlinge  i'.  Boston,  3  II.  &  McII. 
139. 

('/)  Burke  v.  Negro  Joe,  G  CJ.  &  Johns. 
13fi. 

(h)  Davis  i>.  CuiTv,  2  Bibb,  238;  Adclle 

■   [351] 


331*  THE    LAW   OF   CONTRACTS.  [BOOK  I. 

number  of  free  blacks  is  much  greater  than  that  of  the  slaves, 
as  a  mere  presumption  the  inclination  is  in  favor  of  free- 
dom, {hh)  And  in  an  action  by  a  negro  against  a  third  person, 
not  claiming  to  be  his  master,  the  presumption  is  the  other  way, 
and  there  the  burden  of  proving  the  fact  of  his  slavery  is  on  the 
party  making  the  allegation  in  bar  of  his  action.  {%)  The  pre- 
sumption that  negroes  are  slaves  has  been  held  to  be  confined 
strictly  to  negroes  ;  there  is  no  such  legal  presumption  of  slavery 
in  the  case  of  persons  of  any  shade  of  color  intermediate  be- 
tween black  and  white,  {j) 

Even  a  negro  will  be  presumed  free,  though  purchased  as  a 
slave,  if  the  purchase  was  made  within  a  country  whose  laws 
do  not  tolerate  slavery,  unless  it  be  shown  that  he  was  before  in 
one  where  slavery  is  tolerated,  [k)  And  it  seems  the  courts  of 
any  State  will  take  judicial  notice  that  another  State  disallows 
slavery.  At  all  events  it  would  appear  that  a  court  will  not 
extend  to  a  trial  of  the  question  of  freedom  the  principle,  ap- 
plied in  other  cases,  that  the  laws  of  a  foreign  State,  when  not 
exhibited  in  evidence,  will  be  taken  to  be  the  same  as  their 
own.  (/)     This  seems  to  be  on  the  *ground  that  slavery  is  in  its 

V.Beauregard,  1  Mart.  183.  This  pre-  a  third  party ;  and  the  former  master  by 
sumption,  it  seems,  also  holds  where  the  his  not  interfering  furnishes  a  violent  pre- 
action  is  not  a  claim  of  freedom  by  the  sumption  tiiat  the  state  and  condition  of 
negro,  but  a  penal  action  by  his  master  the  plaintiff  is  that  which  she  represents  it 
against  a  third  party  upon  a  statute  for-  to  be.  Partidas,  3,  Tit.  15,  Law  5."  It 
bidding  certain  dealings  with  slams.  De-  is  presumed  that  the  rule  of  evidence  con- 
lery  f.  Mornet,  11  Mart.  4,  10.  There  tained  in  the  latter  part  of  this  extract 
Martin,  J.,  said  :  "  Nothing  can  be  clearer  would  be  applied  in  other  States  as  well 
than  the  position  that  a  person  who,  in  as  Louisiana;  as  to  the  former  ])roposition 
this  State,  deals  with  a  black  num,  ex-  there  is  perhaps  more  doubt,  tiiougii  the 
poses  himself  in  case  of  his  being  a  slave  reasonableness  of  tlic  doctrine  seems  un- 
to all  the  consequences  which  follow  the  questionable.  In  Forsyth  v.  Nasli,  4  Mart, 
dealing  with  a  slave ;  the  presumption  389,  tlie  court,  ]ier  Martin,  J.,  said : 
being  that  a  black  man  is  a  slave;  as  by  "Whenever  a  plaintitf  demands  by  suit 
fiir  the  greatest  proportion  of  persons  of  that  a  ])erson  whom  he  brings  into  court 
tiiat  color  are,  in  this  State,  held  in  .as  a  defendant,  and  thereby  admits  to  bo 
slavery."  See  Hoffman  v.  Gold,  8  G.  &  in  possession  of  his  freedom,  should  be 
.lohns.  79  ;  Jackson  v.  Bridges,  1  Rob.  declared  to  be  his  slave,  he  must  strictly 
(Louis.)  172.  make  out  his  case.  In  this,  if  in  any,  ac- 
(hh)  State  r.  Jeans,  4  HaiTing.  570.  tore  non  probaiite  alisnlvitiir  reus." 
(«')  Hawkins  v.  Vanwickle,  G  Mart.  N.  (./)  Gobu  v.  Gobu,  Tayl.  (N.  C.)  164, 
S.  420.  Tiierc  it  is  said  :  "By  a  law  of  S.  C.  2  Hayw.  170,  nom.  Gober  v.  Gober; 
the  Partidas,  where  a  man  claims  another,  Adelle  r.  Beauregard,  1  Mart.  183. 
who  is  in  the  actual  possession  of  liberty  (/i)  Forsyth  r.  Nash,  4  Mart.  385. 
as  his  slave,  the  necessity  of  i)roving  him  (/)  See  Marie  Louise  r.  Marot,  8  Louis, 
such  is  thrown  on  the  claimant  —  a  fortiori  II.  475,  479,  cited  in  note  (c)  «?(/c  .•  and 
where  the  question  arises  collaterallv  with  also  IMarie  Louise  v.  Marot,  9  Louis.  H. 

[352] 


CH.  XXI.] 


SLAVES. 


»332 


nature  exceptional  to  comnrion  right,  and  therefore  is  not  to 
be  presumed  to  extend  beyond  the  influence  of  the  local  law, 
by  force  of  which  alone  it  exists  and  is  maintained. 

Rules  of  evidence,  as  well  as  of  procedure,  have  sometimes 
been  suspended  in  behalf  of  parties  claiming  release  from  ser- 
vitude. Former  admissions  of  such  a  claimant,  as  that  he  be- 
longed to  a  third  person  from  whom  he  ran  away,  will  not,  it 
seems,  be  allowed  the  weight  against  him  which  is  given  to 
admissions  in  general,  (m)  In  Maryland,  the  rule  excluding 
hearsay  evidence  has  been  in  several  cases  considerably  re- 
laxed ;  (n)  but  the  Supreme  Court  of  the  United  States  have 
refused  to  admit  any  iimovation  upon  the  established  principles 
of  evidence,  (o)  The  pedig-ree  of  the  petitioner  may  be  shown 
by  hearsay  or  general  reputation,  (p)  A  judgment  in  favor  of 
the  plaintiff's  freedom,  in  an  action  between  him  and  a  party 
from  whom  the  defendant  does  not  derive  title,  or  from  whom 
he  derives  title  by  a  conveyance  prior  to  the  judgment,  is  not 
admissible  in  evidence,  (q)  But,  on  the  same  principle,  a  judg- 
ment against  the  plaintiff's  mother  in  an  action  for  freedom  is 
not  evidence  against  the  plaintiff".  (/•)  Proof  of  an  emancipation 
by  the  party  at  the  time  in  possession  of  the  plaintiff  is  prinid 
facie  evidence  of  an  emancipation  by  his  owner,  (.s^)  A  deed 
of  emancipation  regularly  executed  and  recorded  according  to 
the  laws  of  the  State  where  executed,  is,  it  seems,  presumptive 
evidence  of  'freedom  in  an  action  brought  either  in  that  State 
or  another.  (/) 


473,  47G,  where  the  fact  that  by  tlie  hiws 
of  Fninec  a  shivc  l)rou;:lit  there  hy  his  or 
lier  owner  is  ipso  facto  liberated,  w:is 
j)rove(l  to  the  jury  by  the  testimony  of 
witnesses. 

(in)  Forsyth  v.  Nash,  4  Mart.  SS."). 

\ii)  Sliorter  r.  Boswell,  '1  II.  &  Joliiis. 
359  ;  Maiioiiy  r.  Asiiton,  4  II.  &  M.II.  20."). 

(<))  Mima  Queen  v.  llepliurn,  7  Craneh, 
290,  (wiiere  JJiirall,  J.,  <lissente(l)  ;  con- 
firmed in  Davis  r.  Wood,  I  Wiieat.  O. 
In  the  former  etise,  Murs/uill,  C.  J.,  after 
deehuiii;^  the  general  prineiple  tiiat  "  Hear- 
say evidence  is  incompetent  to  establish 
any  specilie  fact,  which  fact  is  in  its  nature 
snseeptil)le  of  t)cinj;r  jiroved  by  witnesses 
who  speak  from  their  own  knowledjre  ;  " 
added,  "  However  the  feelinj^s  of  the  indi- 

30* 


vidnal  may  be  interested  on  the  part  of  a 
person  claiminfi  freedom,  the  court  cannot 
perceive  any  le;;al  distinction  between  the 
assertion  of  tliis  and  of  any  other  ri<iht, 
which  will  justify  the  application  of  a  rule 
of  evidence  to  eases  of  this  descri])tion, 
wiiicii  would  be  inap])licable  to  general 
cases  in  which  a  rij^lit  to  property  may  be 
a.ssertetl." 

(/')  Mima  Queen  f.  Hepburn,  7  Craneh, 
290. 

(7)  Davis  V.  Wood,  1  Wheat.  6;  Kitty 
v.  l'itzhu;;h,  4  Kand.  600. 

(/•)  Toopiod  V.  Scott,  2  H.  &  McH. 
20  ;  Butler  r.  Craig,  2  H.  &  McII.  214. 

(.<)  Simmins  v.  Parker,  4  Mart.  N.  S. 
200. 

(t)  Brown   r.  Compton,  10   Mart.  42.'). 

[353] 


333*  THE   LAW    OF   CONTRACTS.  [bOOK  I. 

Some  uncertainty  exists  as  to  the  damages  which  may  be 
given,  when  judgment  is  rendered  for  the  plaintiff  in  an  action 
for  freedom.  The  Court  of  Appeals  of  Kentucky,  in  a  case 
before  them,  asserted  as  an  equitable  rule,  that  if  the  defendant 
had  reasonable  gi'ound  to  believe  the  plaintiff  to  be  his  slave, 
the  damages  should  be  nominal ;  otherwise,  substantial.  (//) 
This  was  in  equity.  In  a  case  at  law,  another  court  seemed  to 
regard  the  amount  of  damages  as  lying  in  the  discretion  of  the 
jury  ;  and  they,  under  the  circumstances  of  that  case,  having 
given  substantial  damages,  the  court  refused  to  disturb  the  ver- 
dict, (v)  A  person  held  in  slavery  asserted  her  freedom  in  an 
action  of  trespass,  and  recovered  judgment,  with  nominal  dam- 
ages; she  afterwards  brought  another  action  of  trespass  for  the 
value  of  her  services  while  held  as  a  slave  ;  the  court  held  that 
the  action  could  be  maintained,  and  that  the  defendant  was 
estopped  by  the  judgment  in  the  former  action  from  contesting 
her  right  to  wages  from  the  commencement  of  that  former  ac- 
tion, (iv)  It  seems  that  such  a  second  action  may  be  brought 
for  the  recovery  of  wages  for  a  time  antecedent  to  the  com- 
mencement of  the  first  action  ;  but  in  such  a  case  the  contro- 
versy becomes  again  one  of  title,  and  the  defendant  is  not  es- 
topped to  say  that  at  such  antecedent  time  he  rightfully  held 
the  plaintiff  as  his  slave  ;  (x)  and  it  would  appear  that  there 
is  nothing  would  prevent  his  denying,  if  he  chose,  that  he  then 
held  the  plaintiff  as  his  slave  at  all.  Costs  have  been  allowed 
to  the  plaintiff  recovering  judgment  in  an  action  for  freedom, 
although  no  damages  were  given  by  the  jury  ;  the  ordinary 
*provisions,  making  costs  depend  on  the  recovery  of  damages, 
being  held  not  to  apply  in  a  case  of  this  nature.  (//) 

This  was  a  cause  between  the  master  of  (c)  Scott  i-.  Williams,  1  Dev.  376.     As 

the  slave  and  a  tliird  party,  where  the  fact  to  what  may  be  included  in  the  damages, 

of  slavery  incidentally  came  in  question  ;  see  INlatilda  r.  Crenshaw,  4  Yerp.  299. 

what  the  ruling  of  the  court  would  have  (ir)  Matilda  r.  Crenshaw,  4  Yerg.  299. 

been  in  an  action  by  the  slare  for  liis  free-  (.r)  C'ativn,  C.  J.,  Matilda  v.  Crenshaw, 

dom  docs  not  certainly  ajipcar.  nhl  sup. 

(«)  Thompson  r.  Wilmot,  1  Bibl),  422.  (//)     Clifton    r.    Phillips,    1     McCorJ, 

See  also,  Phillis   r.  Geutin,   9  Louis.  11.  469. 
208  ;  Pleasants  v.  Pleasants,  2   Call,  350 ; 
Matilda  v.  Crenshaw,  4  Yerg.  299. 

[354] 


CII.  XXI.] 


SLAVES. 


»334 


SECTION    III. 

THE   CAPACITY   OF   SLAVES    TO    CONTRACT. 

Slaves  arc  in  law,  in  some  respects,  things  ;  in  other  respects, 
persons.  As  property  they  arc  not  in  general  real  estate ; 
though  they  are  very  frequently  descendible  as  such.  But  it  is 
as  persons  that  we  in  this  place  have  to  consider  them.  The 
liability  of  a  carrier  transporting  them,  it  has  been  held,  is  that 
of  a  carrier  of  passengers,  and  not  of  goods,  (z)  A  slave  may 
be  an  agent;  and  the  fact  of  agency  may  be  shown  in  this 
case  by  the  same  evidence  as  in  any  other,  (a)  In  tiieir  ordi- 
nary service,  although  they  constitute  one  class  of  servants, 
they  do  not,  it  seems,  subject  their  masters  to  the  same  degree 
of  responsibility  for  the  consequences  of  their  negligence  that 
the  masters  of  other  servants  incur,  (b) 

Slaves  are  looked  upon  as  persons  by  the  criminal  law. 
Their  most  effectual  protection  against  injuries,  not  affecting 
life  or  limb,  indicted  by  a  strang-er,  consists  in  the  right  which 
the  law  confers  upon  the  master  (not  only  as  it  seems  to  secure 
him  from  loss,  but  for  the  protection  of  the  slave,)  to  recover 
damages  from  the  wrongdoer,  (c)  For  such  injuries,  received 
at  the  hand  of  the  master  himself,  some  codes  provide  juMialties 
of  several  sorts  —  among  which  maybe  classed  the  equitable 
power  which,  in  one  State  at  least,  is  conferred  on  the  court 
having  cognizance  of  the  action  for  •cruel  treatment,  to  decree, 
in  addition  to  the  regular  penalty,  that  the  slave  shall  be  sold 
away  from  his  owner,  {d)     But  in  Virginia  it  has  been  decided 


(z)  Uovcc  V.  Anderson,  2  Pet.  150; 
Clark  V.  McDonald,  4  McCord,  22.3. 

(a)  Chiistuin  r.  IJownian,  1  Hill,  (So. 
Car.)  270  ;  Gore  /•.  Buzzard,  4  Leigh,  231 . 

(/>)  ynce  r.  Trice,  2  IJav,  :i4:i. 

(<■)  White  r.  Chanitiers,"  2  Hay,  70.  In 
Marvlanil,  the  nia.-teriniist,  il  .>-eeins,  .show 
a  loss  of  serviee  in  order  to  nuiititain  tres- 
pn.ss.  Cornluie  r.  Dale,  1  11.  &  Johns.  4. 
IStatnfes confirrin<x ujion  stran;;ers a  meas- 
ure  of  power  over  slaves  arc  construed 


strictly.  Blanchard  c.  Dixon,  4  Louis. 
An.  li.  .')7.  —  In  JSouth  Carolina,  the  law 
dots  not  authorize  the  killinj,'  of  a  runa- 
way, except  wheiv  the  party  attempting 
to  seize  liim  is  endangered  hy  actual  iv- 
sistanee,  as  liy  assaulting  or  striking. 
Arlhur  r.  Wells,  2  South  Car.  Const.  K. 
316.  —  Tlie  battery  of  a  slave  liy  a  stranger 
has  licen  held  to  lie  also  an  indictahle  of- 
fence. State  r.  Hale,  2  Hawks,  .')y2. 
((/)  ^larknian  v.  Close,  2  Louis,  li.  581, 

[355  j 


335* 


THE    LAW    OF    CONTRACTS. 


[book  I. 


that  an  indictment  cannot  be  sustained,  at  common  law,  against 
a  master  for  the  excessive  and  cruel  beating  of  his  slave ;  (e) 
and  it  is  believed  that  in  that  State,  and  probably  in  others,  no 
statutory  remedy  is  provided  for  the  case.  The  absence  of  such 
provision  seems  to  be  accounted  for  within  those  States,  partly 
by  the  belief  that  the  interest  of  the  owner  is  identified  with  the 
well-being  of  his  servant,  and  that  this  interest,  with  the  natural 
affection  arising  out  of  so  close  a  relation  as  master  and  slave, 
are  sufficient  guaranties  of  humane  treatment;  and  partly  by 
the  apprehension  that  in  attempting  to  supply  a  complete  rem- 
edy against  the  hardships  incidental  to  slavery,  the  stability  of 
the  institution  itself  may  be  impaired.  And  it  may  be  there 
considered  as  some  check  upon  an  inhuman  master,  that  he  has 
before  him  the  risk  that  his  severity,  by  being  carried  a  little 
further  than  his  purpose,  may  expose  him  to  the  utmost  rigor  of 
justice.  It  has  very  recently  been  held,  by  the  General  Court 
of  Virginia,  that  where  the  wilful  and  excessive  whipping  of  a 
slave  by  his  master  and  owner,  though  without  any  intent  to 
kill,  results  in  death,  it  is  murder  in  the  first  degree.  (/) 


SECTION    IV. 

LIABILITY    OF    THE    MASTER   FOR    THE    SLAVE. 

For  the  torts  of  a  slave  his  owner  is  commonly  answerable 
civiliter  in  damages  ;  (i,')   but  when  he  commits  a  crime  *pun- 


586.  And  sec  Hendricks  v.  Pliillips,  3 
Louis.  An.  R.  618. 

(e)  Cooimonwealth  v.  Turner,  5  Rand. 
678.  And  a  hirer  has  the  same  immunity 
as  the  owner.  The  State  v.  Mann,  2  Dev. 
263. 

(/)  Souther's  case,  7  Grat.  673.  Tiie 
court  in  this  case  said  :  "  In  inflicting  pun- 
ishment for  tlic  sake  of  punisliment,  tlic 
owner  of  the  shvve  acts  at  his  jieril ;  and  if 
death  ensues  in  consequence  of  such  jiun- 
isliment,  the  rehition  of  master  and  shave 
affords  no  ground  of  excuse  or  palliation. 
The  ])rinciples  of  the  common  law  in  rela- 
tion to  homicide  apply  to  this  case,  witli- 
out  qualitication  or  exception,  and  accord- 

[  35G] 


ing  to  those  principles,  tlic  act  of  the  jiris- 
oner,  in  the  case  under  consideration, 
amounted  to  murder.  Upon  this  point 
we  are  unanimous." 

(g)  Seethe  statutes  of  the  several  States. 
In  Louisiana,  the  master  may  discharge 
himself  from  such  responsibility  by  aban- 
doning his  slave  to  the  person  injured  ;  in 
which  case  such  person  shall  sell  the  slave 
at  public  auction,  and  the  sur])lus,  if  any, 
of  the  proceeds,  over  the  damages  and 
costs,  shall  be  given  to  the  master.  Civ. 
Code  of  Louis.  Art.  2300.  — As  to  the 
master's  liability,  in  the  absence  of  a  stat- 
ute, see  Snec  v.  Trice,  2  Bay,  345. 


CH.  XXI.] 


SLAVES. 


*336 


ishable  with  death,  upon  conviction  therefor,  his  value  is  as- 
sessed, and  paid  out  of  the  treasury  of  the  State  to  the  o\vner.(/i) 
A  slave  who  runs  away  from  his  master  steals  himself,  and,  as 
in  the  case  of  other  stolen  things,  no  property,  general  or  special, 
can  be  acquired  by  another  in  him.  (i) 

The  rule  that  one  who  employs  agents  or  servants  is  not 
liable  to  any  one  of  them  for  an  injury  occasioned  by  the  negli- 
gence or  misconduct  of  any  other  of  them,  (ii)  is  held  not  ap- 
plicable to  slaves.  One  reason  is,  that  the  free  man  can  leave 
a  service  or  employment  which  he  finds  dangerous,  but  the 
slave  cannot.  Another  is,  that  if  employers  of  hired  slaves 
were  thus  protected  against  the  consequences  of  their  own  care- 
lessness or  misconduct,  the  safety  of  the  slave  would  be  en- 
dangered, (j) 

*To  what  extent  a  master  is  liable  to  pay  for  necessaries  fur- 
nished 4o  his  slave  seems  not  clearly  settled.  It  has  been  held 
that  he  is  liable  for  medical  or  surgical  assistance  rendered  to 
his  slave  in  a  case  of  extreme  necessity,  (k) 

(/<)  Such  at  least  is  the  law  in  Virginia,  ploymcnt  when  matters  are  misnianagctl, 
Va.  Code,  1849,  cli.  212,  §  9.  or  portend  evil.     .     .     .     But  we  think  it 

((')  See,  as  to  tiie  law  in  Louisiana,  needless  to  multiply  reasons  upon  a  point 
Oatcs  f.  Caflin,  3  Louis.  An.  11.  3.39. —  so  ])alpal)lc.  There  is  one  view  alone 
In  South  Carolina,  under  the  statute  of  wliich  would  he  conclusive  with  the  court. 
1790,  prohii)itinf;  tiie  felonious  stealing:,  Tlierestrii'tionofthisruleisiiHlixiKUsableto 
takin<r,  or  carryiiif^  away  ijy  a  slave  of  any 
slave,  "  liein;;  the  jiroperty  of  another," 
with  intent  to  carry  him  out  of  the  prov- 
ince, it  is  hilil,  that  there  may  he  a  convic- 
tion altlioujih  no  force  was  employed  ;  on 
the  ;;;n)und  iliat  force  i.s  not  an  essential 
elcuK'nt  in  tlie  larceny  of  animate  ohjects 
liossessintr  tiie  power  of  locomotion.  The 
State  V.  Wlivie,  2  X.  &  McC.  174. 

(//)  See  note  (zz),  H.  III.,  Ch.  IX.,  post. 

(j)  In  Scuddcr  ;•.  Woodliri<hj:e,  1  Geo. 
19.'i,  it  was  so  decided  at  the  court  liclow  ; 
and  on  error  the  Supreme  Court  say  : 
"  The  {.^encral  doctrine,  as  contended  f(M' 
hy  counsel  for  ])laintill'  in  ermr,  may  he 
correct,  .  .  .  and  we  are  disposed  to 
reco;;nize  and  adopt  it  with  the  cautions, 
limitations,  and  restrictions  in  those  cases. 
But  interest  to  tlie  owner,  and  Innnanity 
to  the  slave,  forhid   its   application  to  am/ 

ntliir   llinn    fhr    ii/ii'li     at/iiits their  force.      Wc  arc,  thcrcfure,  cordially, 

Slaves    dare    not    intermeddle  with  those     conlidcntly,  and  unanimously  airrccd,  and 
around,  cniliarkcd  in  the  sanu'  enterprise     .so  adjinl<re,  that   the  judgment   liclow  he 
with    themselves.     .     .     .      Neither   can     athrmcd,  with  costs." 
they  exercise  the  salutary  discretion,  left         (/■)  Jcdmston  v.   Barrett,  2  Bail.  562. 
to   free  white  agents,  of  ipiitting  the  em-     And  see  Dunhar  c.  Williams, 10  Johns. 249. 

[3o7] 


the  nxljhrc  of'  the  slave.  In  almost  every 
occni)ation,  requiring  comhined  crtbrt,  the 
employer  necessarily  intrusts  it  to  a  variety 
of  agents.  Many  of  those  are  destitute  of 
))rinciple,  and  lianknipt  in  fortune.  Once 
let  it  lie  promulgated  that  the  owner  of 
negroes  hired  to  the  mimerous  navigation, 
railroad,  mining,  and  manufacturing  com- 
jianies  which  dot  tiie  whole  country,  and  arc 
rapidly  increasing  —  I  repeat,  that  for  any 
injury  done  to  this  species  of  projicrty,  let  it 
he  understood  and  settled  that  {\w  ein/iloyer 
is  not  liahle,  hut  that  the  owner  must  look 
for  compensation  to  the  r<>-s(n<iiit  who  oc- 
casioned the  mistiiii'f ;  and  I  hesitate  not  to 
atHrm  that  the  life  of  no  /u'yvt/ slave  would  he 
safe.  As  it  is,  the  guards  thrown  around 
this  class  of  our  )ioiiulation  are  sufliciently 
few  and  feelile.  We  are  altogether  dis- 
inclined to  lessen  their  numhei-  or  weaken 


1 


337*  THE   LAW    OF   CONTRACTS.  [BOOK  I. 

A  slave  cannot  enter  into  any  binding  contract  loith  his  mas- 
ter; (/)  nor  can  he,  while  yet  a  slave,  appear  as  a  suitor  in  a  court 
either  of  law  or  equity,  to  enforce  any  alleged  contract  against 
any  person,  {m)  He  cannot  take  by  descent ;  («)  nor  by  pur- 
chase, unless  freedom  accompany  the  gift  of  property,  (o)  A 
bequest  to  a  free  person,  in  trust  for  him,  is  void.  (/?) 


SECTION     V. 

OF    CONTRACTS     BETWEEN    A    SLAVE    AND    ONE    NOT    HIS    MASTER. 

With  respect  to  the  validity  of  a  contract  between  a  slave 
and  a  person  who  is  not  his  master,  there  is  some  uncertainty. 
There  are  statutes,  in  probably  all  of  the  slaveholding  States, 
prohibiting  contracts  with  slaves  without  the  consent  of  their 
masters,  {q)  Though  no  statute  upon  the  subject  existed,  it 
would  seem  to  be  a  necessary  incident  to  slavery,  that,  on  the 
supposition  that  a  slave  can  contract  at  all,  the  consent  of  the 
master,  express  or  implied,  must  be  requisite  to  enable  a  slave 
to  bind  either  a  third  party  or  himself  by  a  contract.  This 
seems  to  have  been  taken  for  granted  in  a  case  decided  in  the 
year  1802,  in  the  Court  of  Common  *Pleas  in  England ;  where 
the  binding  force,  after  emancipation,  of  an  agreement  entered 
into  by  a  slave,  with  the  consent  of  his  master,  was  established, 
so  far  as  the  authority  of  that  case  goes,  (r)  The  emancipation 
of  the  slave  was  there  connected  with  his  contract,  and  formed 
the  consideration  for  it.     How  it  is  with  a  contract  which  does 


(/)  Henry  v.  Nunn's  Heirs,  11  B.  Mon.  Nor.  353  ;  Hall  v.  Mullin,  5  H.  &  Johns. 

239  ;    Bland  v.  Negro  Dowling,  9  G.  &  190. 

Johns.  19.     There  are  dicta  in  Williams  (/))  Cunningham  v.  Cunningham,  Cam. 

V.  Brown,  3  B.  &  P.  69,  which  it  would  &  Nor.  353  ;  Hinds  i-.  Brazeallc,  2  How. 

seem  cannot  1)0  regarded    as  law  in  this  (Miss.)  837  ;  Brandon  ('.Planters' Bank,  1 

country.  8tcw.  (Ala.)  320;  Bynum   v.  Bostick,  4 

(;/()  Bland  v.  Negro  Dowling,  9  G.  &  Des.  266. 

Jolms.  19.  ('/)  See,  as  to  the  construction  of  such 

(n)  Cunningham  v.  Cunningham,  Cam.  language   in    a   statute,    per    Archer,    J., 

&  Nor.  353  ;  Bvnum  v.  Bostick,  4  Des.  Bland  ?•.  Negro  Dowling,  9  G.  &  Johns. 

266.                      "  27  ;  and  Hall  v.  Mullin,   5  H.  &  Johns. 

(o)   Bynum    v.   Bostick,  4   Des.   266;  190. 

Hinds  V.  Brazeallc,  2  How.  (Miss.)  837  ;  (r)  Williams   r.  Brown,  .3  B.   &  P.  69, 

Cunningham   v.    Cunningham,    Cam.    &  Lord  Alvanleij,  C.  J.,  dissentieitte. 

[358] 


\ 


CH.  XXI.]  SLAVES.  *338 

not  relate  to  emancipation  is  evidently  a  different  matter.  In  a 
State  where  slaves  were  declared  by  law  incapable  of  making 
any  kind  of  contract,  a  suit  was  brought  to  recover  the  amount 
of  a  promissory  note  given  by  the  defendants  to  a  slave  of  the 
plaintiff's;  the  court,  in  considering  the  case,  held  that  al- 
though the  slave  could  neither  bind  herself,  because  she  was 
without  will,  nor  enter  into  any  contract  binding  on  her  master, 
without  special  authority  from  him,  yet  it  did  not  follow  that 
the  master  could  not  claim  the  benefit  of  an  engagement  made 
in  favor  of  his  slave  by  a  person  capable  of  contracting;  and 
the  action  was  maintained,  (s)  But  the  same  question  arising 
nearly  at  the  same  time  in  another  State,  the  decision  there  was 
the  other  way  ;  on  the  ground  that  any  contract  entered  into 
by  a  slave  in  his  own  name  is  absolutely  void.  (/) 


SECTION    VI. 


OF    GIFTS   TO   A    SLAVE. 

Another  question  of  much  interest  is  whether  a  slave  can 
take  by  gift,  or  executed  contract;  and,  if  he  can  take,  *whether 
the  property  in  the  chattel  given  passes  instantaneously  to  his 
master,  or  remains  in  him,  subject  to  his  disposal  until  specific 
appropriation  by  the  master.  A  negro,  who  was  supposed  to 
be  free,  but  who  was  in  fact  a  slave,  purchased  his  daughter, 
and  then  executed  to  her  a  deed  of  emancipation  ;  his  own 
master  laid  claim  to  the  girl,  and  for  him  it  was  urged  that  the 

(s)  Livaudiiis    r.    Foii,    8     Mart.    101.  wliatcvor  tliey  iicquiixd  was  tlieir  master's 

TIk^  jioint  here  tlecided  now  forms  a  jiro-  excL-jit   tlicir  peruHum.     But   wlieii   it  is 

vision  of  tlie  civil  code.     .See  Civ.  Code  of  saiil  tliat  wiiatevcr  tlicy  aciiuircd  I)ccame 

Loiiis.  Art.  1785.  their  master^,  it  is  meant  wliatever  tiicy 

(0  Grt'i^jj  '■•  Tliomi)son,  2  Soutli  Car.  alwolutcly  acquiixnl  by  pratuity,  &c.,  of 
Const.  11.  3.30.  Tlic  court  in  this  case  others ;  and  so  I  should  hold  in  relation 
reco;;ni7,e  the  Jioman  law  respcctinj;  the  to  our  slaves.  But  it  does  not  follow  from 
slatux  of  slaves,  and  seem  to  profess  to  tliencc  tliat  the  master  could  sue  in  his 
decide  in  accordance  witli  it.  Oolrixl:,  J.,  own  name,  to  comjiel  the  performance  of 
(k'livcrinj^  the  opinion  of  the  court,  said  :  an  cxiriiton/  contract.  On  the  contrary,  it 
"lam  aware  that  at  one.  period  in  the  is  said,  'they  could  not  jdcad  or  lie  ini- 
history  of  Home  the  most  alyect  state  of  jileaded,  for  they  were  e.xcluded  from  all 
slavery  existed,  and  that  the  slaves  of  that  civil  concerns  whatever.'  Coojjer's  Jus- 
day  were  considered  as  chattels,  and  that  tinian,  4IG,  in  iiolis." 

[359] 


339*  THE    LAW    OF    CONTRACTS.  [bOOK    I. 

rule  of  the  civil  law  prevailed,  and  that  the  property  passed 
through  the  purchaser,  being  a  slave,  to  the  purchaser's  master: 
in  behalf  of  the  girl,  it  was  contended  that  as,  under  the  feudal 
law,  a  villein  purchasing  property  held  it  until  appropriation  by 
his  lord,  with  power  (before  the  lord's  interference,)  to  convey  a 
perfect  title  to  his  own  alienee,  the  case  was  the  same  with  a 
slave  ;  and  therefore  that  the  deed  of  manumission,  or  convey- 
ance of  the  girl  to  herself,  was  good.  The  question  could  not 
be  decided ;  because  upon  the  construction  given  by  the  court 
to  a  statute  of  the  State,  the  sale  to  the  slave-father  was  void 
by  force  of  that  statute,  so  that  the  property  in  the  girl  did  not 
pass  out  of  the  original  owner;  {u)  the  court  however  were  able 
to  declare  the  girl  free  on  another  ground.  But  in  a  subsequent 
case,  in  Alabama,  where  a  slave  who  had  found  lost  property 
delivered  it  to  the  defendant,  it  was  held  that  the  master  of  the 
slave  might  maintain  trover ;  on  the  ground  that  the  possession 
of  a  slave  is  the  possession  of  his  master,  and  that  the  special 
property  as  finder  having  been  vested  in  the  plaintiff  by  the  act 
of  his  slave  in  taking  possession  of  the  lost  parcel,  could  not  be 
devested  by  any  after  act  of  the  slave,  {v)  It  seems  to  have 
been  held  that  a  party  who  has  dealt  with  a  slave  as  free  is 
afterwards  estopped  from  setting  up  his  slavery  in  avoidance  of 
the  contract  thus  entered  into ;  {w)  but  there  is  room  for  much 
doubt  as  to  the  nature  and  extent  of  this  estoppel. 

As  we  have  seen,  it  is  a  general  principle  that  a  slave  cannot 
contract  with  his  master.  (.!•)  In  Louisiana,  but,  it  is  believed, 
in  no  other  State,  the  exception  is  made  of  a  *contract  for 
emancipation  ;  such  a  contract  being  there  enforceable  at  the 
instance  of  the  slave.  (ij)  It  was  once  held  that  no  contract  by 
the  master  with  a  third  person  for  the  slave's  benefit  could  be 
enforced ;  [z)  but  the  better  opinion  seems  to  be  that  a  contract 
of  that  kind,  made  for  consideration,  is  valid,  [a)  and   specific 

[u)  Hall  V.  Mullin,  5  11.  «&  John,?.  190.  cases  of  grants  of  freedom,  perfect  and  com- 

(r)  Brandon  c.  Planters'  Bank,  1  Stew,  jjlctc  at  the  time  of  execution,  but  to  take 

(Ala.)  320.     With  respect  to  the  law  in  etiect  in  enjoyment /«y»/»ro,  arc  not  incon 

Louisiana,    sec    Voisain    v.    Clouticr,    3  sistcnt  with  this  princii)le. 

Louis.  170.  (//)  Marie  v.  Avart,  G  Mart.  732;  Civ. 

(m')  Grounx  v.  Abat,  7  Louis.  R.  17.  Code  of  Louis.  Art.  174,  1783. 

[x]  Ketletas  v.  Fleet,  7  Johns.  324,  and  (z)  Beall  v.  Josepli,  Hardin,  51. 

Tom's  case,  5  id.  36.5,  if  understood  as  [n)  "  So  far  as  regards  the  slaves,  the 

[360] 


en.  XXI.]  SLAVES.  *340 

performance  may  be  enforced  in  equity  by  the  party  with  whom 
it  is  made,  (b)  Where  a  slave  was  sold  for  a  term  of  years, 
with  a  power  to  the  vendee  to  emancipate  him  at  the  end  of 
the  term,  or  before,  and  the  vendee  executed  a  deed  of  manu- 
mission accordingly,  it  was  held  that  the  defendant  who  had 
purchased  from  the  vendor  after  the  sale,  though  previous  to 
the  execution  of  the  power,  could  not  defend  against  the  negro's 
claim  of  freedom,  (c) 


SECTION    VII. 

THE    PECULIUM. 

While  it  is  true  in  a  general  sense  that  all  that  a  slave  pos- 
sesses belongs  to  his  master,  the  law,  as  well  as  usage,  seems  to 
recognize  that  slaves  in  this  country,  as  in  ancient  Rome,  may 
have  certain  private  property  which  their  masters  cannot  appro- 
priate. Such  property  is  called  the  slave's  pecuUinn.  This 
term,  as  somewhat  vaguely  defined  in  the  civil  code  of  Louisi- 
ana, is  the  sum  of  money  or  portion  of  movable  goods  of  which 
the  master  of  a  slave  has  thought  fit  to  allow  him  the  enjoy- 
ment. {(I)  Notwithstanding  the  *peculium  thus  depends  origi- 
nally upon  the  license,  or  grant  and  license,  of  the  master,  it 
would  appear  (though  we  speak  very  doubtfully  upon  this 
point),  that  a  revocation  of  the  license  does  not  devest  the  pe- 
culium  acquired  under  it.  It  has  been  held  in  South  Carolina 
that  if  the  master  of  a  negro  permit  him  to  hire  himself  out, 
upon  condition  of  paying  him  certain  stijjulated  wages,  all  he 


power  of  the  master  is  indeed  absolute,  the  defendant,  who  was  abont  removing  to 
The  slave  cannot  resist,  or  be  heard  if  he  Kentucky,  on  the  condition  that  the  pur- 
complain  of  tlie  nlmsc  of  tliis  power;  hut  cliascr  should  emancijiatc  him  in  seven 
in  rcUuion  to  other  persons,  notliinj^  pre-  vcars  ;  ami  the  defendant  sij;ned  and  de- 
vents  the  master  from  being  compelled  or  livercd  a  memorandum  of  his  agreement 
coerced  to  comply  with  ins  engagements  to  enuincipatc.  After  tlie  expiration  of 
as  vendee,  which  he  contracted  when  he  the  time,  specific  performance  was  decreed 
acquired  his  slave."  Mnrtln,  J.,  in  Toy-  in  Kentucky  upon  the  prayer  of  the  ven- 
dras  1'.  Mourain,  9  Louis.  11.  50.5.  dor. 

(b)  It  was  so  lield  in  Tiiompson  r.  Wil-         (c)  Negro  Cato  v.   Howard,   2  H.   & 

mot,  1  Bibb,  422.     There  the  plaintiff  had  Johns.  323. 
in  Maryland  sold  the  slave  iu  question  to        (rf)  Civ.  Code  of  Louis.  Art.  1 75. 

VOL.   I.  •  31  [  3G1  ] 


341' 


THE   LAW   OF   CONTRACTS. 


[book  I. 


makes  and  saves  beyond  such  wages  shall  be  at  his  own  dis- 
posal, (e)  By  the  law  of  Louisiana,  slaves  are  entitled  to  the 
fruits  of  their  Sunday  labor ;  and  even  their  masters,  if  they 
employ  them  on  that  day,  are  bound  to  remunerate  them.  (/) 
In  other  Southern  States,  as  we  understand,  slaves  are  by  cus- 
tom allowed,  besides  the  Sabbath,  certain  holidays  in  the  course 
of  the  year,  and  their  earnings  on  these  days,  whether  received 
from  their  masters  (who  have  a  kind  of  preemptive  claim  to 
their  services),  or  from  others,  go  to  their  own  use.  Possibly 
out  of  this  custom  may  have  grown  a  right  which  the  law  would 
recognize  and  enforce ;  but  we  apprehend  that  the  matter  rests, 
very  generally  at  least,  in  the  mere  liberality  of  the  master. 


SECTION    VIII. 

OF    THE    MARRIAGE    OF    SLAVES. 

The  disability  of  the  slave  to  contract  seems  to  extend  even 
to  the  contract  of  marriage.  It  has  been  distinctly  held  that 
the  marriage  usual  in  Slave  States,  which  is  only  cohabitation 
with  consent  of  the  master,  is  not  a  legal  marriage.  Chancellor 
Kent  (g-)  quotes  from  a  case  in  which  this  is  decided,  (h)  words 
which  state  this,  and  so  refer  it  to  the  want  *of  the  legal  for- 
malities, as  to  suggest  the  inference  that  it  is  this  want  which 
makes  the  marriage  void.  But,  in  another  part  of  this  case,  it 
is  put  quite  as  much  on  the  ground  of  their  inability  to  contract. 
There  are  statutes  which  speak  of  their  marriage ;  but  not  in 


(e)  Guardian  of  Sally  v.  Bcaty,  1  Bay, 
260.  This  was  a  case  very  remarkable  in 
its  circumstances.  The  negro,  a  woman, 
■with  whom  the  master  had  made  the  agree- 
ment, with  rare  generosity  disposed  of  her 
surplus  earnings  in  purchasing  a  negro  for 
■whom  she  felt  a  friendly  attachment,  and 
to  whom  she  thereupon  gave  her  freedom. 
Her  own  master  claimed  the  girl  on  the 
ground  that  the  purchase  enured  for  his 
benefit,  and  that  the  subsequent  gift  of 
freedom  was  a  nullity.    But  the  court  de- 

[362] 


clared  the  girl  free,  and  enounced  the  doc- 
trine in  the  text. 

(/)  Rice  V.  Cade,  10  Louis.  R.  294 ; 
and  in  this  case  it  was  held  that  a  master 
not  requiring  the  services  of  his  slaves  on 
Sunday,  and  not  retaining  them  on  his 
plantation,  impliedly  permits  them  to  hire 
themselves  to  others. 

(f/)  2  Kent's  Com.  88. 

(/*)  State  V.  Samuel,  2  Dev.  &  Batt. 
177,  181.  See  Hall  v.  MuUin,  5  Har.  & 
Johns.  193;  and  Jackson  v.  Lervcy,  5 
Cow.  397. 


r 


CH.    XXI.]  SLAVES.  *342 

such  a  way  as  to  declare  such  marriage  a  legal  one,  carrying  all 
the  incidents  of  marriage.  These  incidents  seem  to  us  so  in- 
consistent with  the  condition  of  slavery,  that  we  do  not  see  how 
any  ceremonies,  civil  or  religious,  could  make  such  marriage 
legal,  (i)  There  may  be  usages  or  statutory  provisions  regulat- 
ing this  matter  which  we  have  not  found  ;  but  so  far  as  we  can 
learn  the  law  on  this  subject,  we  think  that  a  slave  cannot  be 
guilty  of  adultery,  when  this  crime  can  only  be  committed  by 
a  married  person  ;  nor  of  polygamy  ;  nor  be  held  liable  on  a 
wife's  contracts,  or  for  necessaries  supplied  to  her ;  nor  made 
incompetent  as  a  witness  on  the  ground  of  the  relation  of  mar- 
riage. How  far  all  this  may  be  modified  by  the  consent  of  the 
owner  may  be  doubtful ;  but  we  do  not  see  that  even  such  con- 
sent could  make  the  marriage  altogether  a  legal  marriage,  and 
invest  it  with  all  the  rights,  duties,  and  relations  of  marriage, 
unless  it  was  such  consent  and  under  such  cirqumstances  as 
made  it  operate  as  a  manumission,  as  in  the  case  of  a  devise  to 
a  slave. 


SECTION     IX. 

EMANCIPATION. 

Emancipation  is  the  donation  to  a  slave  of  his  value,  (j) 
When  a  slave  is  emancipated  by  will  his  freedom  is  a  *specific 
legacy  to  him.  (k)  A  bequest  of  property  to  a  slave,  by  his 
master,  confers  freedom  by  implication.  (/)     It  would  seem  that 

()')  In  Girofl  V.  Lewis,  6  Mart.  559,  the  of  marriage,  legal  and  valid  by  the  con- 
question  was  wlictlicr  a  marriafrc  during  sent  of  the  master  and  moral  assent  of  the 
shivery  produces  after  manumissidn  the  slave,  from  the  moment  of  freedom,  al- 
civil  effects  resulting  from  tlie  t:ontnict  of  tliougii  dormant  during  the  slavery,  pro- 
marriage  between  free  pei-sons.  Mathews,  duces  all  the  effects  which  result  from  such 
J.,  delivering  tlie  opinion  of  the  court,  contract  among  free  persons." 
said  :  "  It  is  clear tliat  slaves  liave  no  legal  (  /)  Mmlin,  J.,  Pi-udencc  v.  Bermodi,  1 
capacity  to  assent  to  any  contract.     With  Louis.  R.  241. 

the    consent   of    their   masters    tlicy  may         (k)  And  therefore  partakes  of  the  priv- 

marry,  and  their  moral  power  to  agree  to  ilege   of  specilic  legacies  with  respect  to 

such  a  contract  or  connection   as  tiiat  of  questions  of  abatement  and  contribution, 

marriage  cannot  be  doubted  ;  but  wliilst  Hammond  i\   Hammond,  2   Bland,  306, 

in  a  state  of  slavery  it  cannot  jiroduce  any  314.     And  see  Williams  v.  Ash,  1  How. 

civil  eftect,  because  slaves  arc  deprived  of  Sup.  Ct.  1. 

all    civil   riijhts.     Emancipation  gives  to         (/)  Hall  r.  Mullin,  5  H.  &  Johns.  190  ; 

the  slave  his  civil  riglits  ;  and  a  contract  Le  Grand  v.  Daruall,  2  Pet.  664.     Contra, 

[363] 


343*  THE   LAW   OF   CONTRACTS.  [BOOK  I. 

any  person  may  emancipate,  who,  if  he  did  not  set  the  slave 
free,  would  have  a  right  to  hold  him  for  ever  against  all  the 
world ;  and  accordingly  that  where  the  party  manumitting  had 
possession  long  enough  to  bar  an  action  by  the  rightful  owner 
against  himself,  the  slave  may  equally  rely  upon  the  provisions 
of  the  statute  of  limitations,  (m)  The  inequitableness  of  a  con- 
trary doctrine  is  obvious ;  for  it  would  deny  to  the  slave,  pur- 
chasing himself,  the  privilege  which  any  other  purchaser  would 
enjoy.  On  the  other  hand,  a  rightful  owner,  whose  claim  is 
barred  by  the  statute  of  limitations,  has  no  power  to  emanci- 
pate, (n)  It  has  even  been  made  a  question  whether  a  man 
may  execute  a  valid  deed  of  manumission  to  his  slave,  while 
another  party  is  holding  the  slave  adversely,  though  without  a 
sufficient  length  of  possession  to  bar  an  action,  (o) 

The  mode  of  emancipation  is  variously  regulated  by  statutes. 
It  seems,  however,  to  be  everywhere  agreed  that  all  that  is  done 
towards  a  complete  emancipation  is  totally  without  effect,  until 
the  final  act,  whatever  it  may  be,  is  performed ;  and  conse- 
quently, so  long  as  such  final  act  remains  unperformed,  the 
owner  may  revoke  his  consent  to  manumit,  and  no  inchoate 
right  is  vested  in  the  slave  which  even  a  court  of  equity  can 
recognize,  (p) 

There  may  be  an  emancipation  to  take  effect  upon  a  contin- 
gency. A  testatrix  bequeathed  certain  slaves,  adding  the  con- 
dition that  if  the  legatee  carried  them  out  of  the  State,  or  sold 
them  to  any  one,  her  will  was,  in  either  event,  that  they  should 
be  free  ;  the  legatee  sold  one  of  the  slaves,  who  thereupon  filed 
a  petition  for  his  freedom,  and  it  was  held,  on  error,  by  the  Su- 
preme Court  of  the  United  States,  that  he  *was  free ;  the 
qualifying  clause  of  the  bequest  not  being  a  restraint  on  aliena- 
tion inconsistent  with  the  legatee's  right  of  property,  but  a  con- 
ditional limitation  of  freedom,  which  took  effect  the  moment 
the  negro  was  sold,  (q)    Conditions  subsequent  to  emancipation 

Campbell  v.    Campbell,    8   Eng.   (Ark.)  (p)  Henry  r.  Numi's  Heirs,  11  B.  Mon. 

.519.  239;    Wicks    v.  Chew,   4  H.    &  Johns. 

(m)  The  point  was  left  undecided  in  543.     With  reo;ard  to  Ketlctas  v.  Fleet,  7 

Kitty  V.  Fitzhugh,  4  Rand.  600,  607.  Johns.  324,  and  a  previous  case  in  New 

(n)  Givens  v.  Manns,  6  Muuf.  191.  York,  see  a»/e,  p.  *339,  note  (.r). 

(o)  Ibid.  {q)  Williams  v.  Ash,  1  How.  1.     See 

[364] 


CH.  xxr.J  SLAVES.  *344 

are,   however,    void,  and  the    slave  takes   his    freedom    abso- 
lutely, {qq) 

Slaves  cannot  be  emancipated  to  the  prejudice  of  creditors  — 
by  statute  in  some  States,  and  we  presume  by  common  law  or 
the  Stat.  13  Eliz.,  where  State  enactments  do  not  exist,  [qr] 
Under  a  statutory  provision  of  that  kind,  it  has  been  held  that 
the  intention  of  a  testator,  distinctly  manifested,  to  emancipate 
his  negroes,  has  the  effect  to  charge  his  real  estate  with  the 
payment  of  his  debts,  without  express  words  ;  (r)  that  the  credi- 
tors, in  case  the  personal  assets  prove  insufficient,  must  proceed 
against  the  real  estate,  by  such  means,  legal  or  equitable,  as 
may  be  open  to  them  ;  [s)  and  that  the  burden  of  proof  is  upon 
them  to  show  the  insufficiency  of  the  whole  assets,  real  and 
personal.  (/)  It  has  also  been  decided,  under  the  same  statutes, 
that  the  inquiry  as  to  the  sufficiency  of  assets  is  not  confined  to 
the  condition  of  the  estate  at  the  time  of  the  testator's  death ; 
but  if  the  assets,  although  then  sufficient,  afterwards,  in  the  due 
course  of  administration,  without  any  default  of  the  adminis- 
trator, and  before  his  assent  to  the  manumission,  become  inade- 
quate to  the  payment  of  the  debts,  the  slaves  shall  be  subject 
to  the  claims  of  the  creditors  ;  and,  on  the  other  hand,  if  the 
assets,  insufficient  at  the  testator's  death,  subsequently  in  the 
due  course  of  administration  become  sufficient,  the  manumission 
shall  be  consummated,  {u)  An  executor  who  has  permitted 
the  manumitted  slaves  to  go  at  large  as  free,  cannot  recall  the 
assent  he  has  thus  given  to  the  bequest  of  freedom,  (r)  Yet 
an  executor  who  has  made  an  admission  of  the  sufficiency  of 
assets,  whereby  a  judgment  of  freedom  *has  been  obtained  in 
an  action  at   law  against   him,  may,  it  seems,  obtain  relief  in 


also  Tom's  case,  5  Johns.  .305,  and   Kc-  of  Ncpro  Gcoifrc  r.  Corse,  2  II.  &  Gill,  1, 

tletas   V.   Fleet,  7  id.  :i24.     Qmere  as   to  seems  to  lie  overruled. 

Cooke  r.  Cooke,  .'J  Litt.  2;J8.  (/)  Allein  v.  iSliarp,  7  G.  &  Johns,  96. 

(qq)    For\vard    v.   Thamer,    9    Grntt.         (u)   Wilson  v.   ]?arnet,    9  G.  &  Johns. 

5.37;    Sjjeneer  v.  Negro   Dennis,  8    Gill,  158;  where  the  ('i>urt  also  ruled  that  the 

314.  value  of  the  services  of  the  manuTnittcJ 

(qr)  Union  Bank  r.  Benliam,  23  Ala.  slaves,  while  in  the  possession  of  the  i)er- 

143.  sonal  representative,  is  to  be  estimated  in 

(r)  Fcnwick  r.  Chapman,  9  I'et.  461  ;  their  favor,  as  a  part  of  the  personal  estate 

Allein  r.  Sharp,  7  G.  &  J.  90.  of  the  testator. 

(x)  Fenwick  v.  Chapman,  9  IVt.  4G1  ;         (v)   Fenwiek    v.    Chapman,  9    Fetcrs, 

Allein  v.  Sharp,  7  G.  &  J.  96.     The  case  461. 

31*  [365] 


345*  THE   LAW    OF   CONTRACTS.  [bOOK   I. 

equity.  (?/')  And  no  judgment  of  freedom  recovered  by  the 
slaves  in  an  action  against  the  executor,  whether  the  conse- 
quence of  his  admission  of  assets  or  not,  concludes  the  creditors 
from  showing,  in  equity,  that  the  assets  are  in  point  of  fact  in- 
sufficient, {x)  It  seems  that  in  any  case  where  the  assets  are 
found  insufficient,  a  decree  of  a  court  of  equity  must  be  ob- 
tained for  the  sale  of  the  emancipated  negroes,  either  for  life 
or  for  a  term  of  years,  as  the  circumstances  of  the  case  may 
require,  (y/)  The  right  of  the  testator's  widow  to  her  life  inter- 
est, in  the  nature  of  dower,  in  a  share  of  the  slaves,  may  also 
be  an  obstacle  to  the  emancipation  by  the  will.  Statutory 
provision  is  sometimes  made  for  the  satisfaction  of  this  claim 
^of  hers,  like  the  claims  of  creditors,  out  of  other  property  left  by 
the  testator. 

It  appears  to  be  a  part  of  the  policy  of  the  slave-holding 
States  to  discourage  the  increase  within  their  territory,  respec- 
tively, of  the  free  negro  population,  {yy)  By  the  Constitution 
of  Virginia,  as  recently  revised,  it  is  put  out  of  the  power  of 
the  legislature  to  permit  emancipation  unaccompanied  by 
removal.  In  other  States,  statutes,  more  or  less  restrictive, 
have  been  enacted.  The  policy  of  States  with  respect  to  the 
increase  of  the  slave  population  has  been  somewhat  fluctuating. 
A  prohibition  upon  the  importation  of  slaves  as  merchandise  is 
indeed  in  force  almost  everywhere  ;  (c)  but  it  seems  now  to  be 
universally  permitted  to  persons  to  bring  into  the  State  for 
their  own  service,  and  not  for  sale,  slaves  of  whom  they  were 
[bond  fide)  owners  in  other  States,  (a) 

*The  validity  of  an  emancipation,  depends  upon  the  law  of 

{w)  See  Fenwick  v.  Chapman,  9  Pet.         [a]  The  law  in  Maryland  and  Virginia 

46i,  481.  "  was  once  otherwise ;  and  while  the  statute 

{x)  AUt'in   V.    Sharp,  7    G.    &  Johns,  of  the  former  State  prohibiting  the  impor- 

■96;  Fenwick  ?•.  Chapman,  9  Peters,  461.  tation  was  in  force,  it  was  held,  that  if  a 

(ij)  Allein  v.  Sharp,  7  G.  &  Johns.  96.  slave  having  the  license  of  his  owner  to 

\yy)  Green  v.  Lane,  8  Ire.  Eq.  70.  go  at  large,  for  the  purjiose  of  earning 

[z)  By  tlie  constitution  of  JMississippi,  monc}^  to  purchase  his  freedom,  according 

■as  construed  by  the  courts   of  that  State,  to  an   agreement,  in  the  exercise   of  that 

all  slaves  brought  into  the  State  as  mer-  license     go    into   another    State,    reside 

chandise  or  for  sale  are  ipso  facto  free,  there   for   a   time,   then   return,  and   his 

without  any  legislative  enactment  in  aid  owner  resume  possession  of  him,  this  is  a 

of  the  constitutional  provision.    See  Brien  new  importation,  and  under  a  stature  sct- 

V.  Williamson,  7  How.  (Miss.)  14  ;  Groves  ting  free  imported  shivcs,  he  is  entitled  to 

■y.  Slaughter,  15  Pet.  449;  1  Kent,  Comm.  his  freedom.     Bland  v.  I)owling,  9  G.  & 

439.  Johns.  19. 

[366] 


CH.  XXI.] 


SLAVES. 


^346 


the  State  where  the  negroes  emancipated  are  residing  at  the 
time  —  they  being  so  resident  by  the  consent  of  their  owner,  (b) 
And  (in  subordination  to  this  principle,)  the  courts  of  any  State 
will,  in  general,  enforce  an  emancipation  which  owes  its  effect 
to  the  laws  of  any  other  State,  (c) 


SECTION    X!. 

OF   SLAVES   FOR   A    LIMITED    TIME,    OR   STATTJ-LIBERI. 

The  condition  of  persons  held  in  slavery,  but  entitled  to  be- 
come free  at  some  future  time,  differs  in  some  of  its  incidents 
from  ordinary  slavery.  Such  persons  are  denominated  in  the 
Roman  law,  and  in  the  law  of  Louisiana,  statu-liberi.  (d)  By 
the  civil  code  of  that  State  they  are  capable  of  taking  prop- 
erty by  testament  or  donation,  though  not  by  inheritance  ;  and 
property  given  or  bequeathed  to  a  statu-liber  must  be  preserved 
for  him,  under  the  administration  of  a  curator,  in  order  to  be 
delivered  to  him  in  kind  when  iiis  emancipation  shall  take 
place,  (e)     If  he  die  before  the  time  *for  his  emancipation,  the 


(6)  Hunter  v.  Fuldier,  1  Lcij^li,  172; 
Simmiiis  v.  Parker,  4  Alart.  N.  S.  200, 
205.  —  But  an  emancipation  in  another 
State,  (l)y  the  operation  of  tiie  hiw  of  tliat 
State,)  during  a  temporary  sojourn  tiiere, 
will  not,  it  seems,  ho  regarded ;  there 
must  1)0  a  residence.  Lewis  c.  Fullerton, 
1  liand,  15,  as  eonstrued  in  Hunter  v. 
Fulelier,  1  Leigh,  172.  And  see  Mary  v. 
Brown,  5  Louis.  An.  R.  269  ;  Mercer  v. 
Gilnian,  11  B.  Mon.  210.  As  to  the 
effect  of  the  mere  fact  of  the  slave's  resi- 
dence for  a  time  in  a  State  whose  laws  do 
not  tolerate  slavery,  no  statute  in  that 
State  enacting  thatal)Solute  freedom  shall 
be  the  consecpiencc  of  such  residence,  see 
Lunsford  r.  Cociuillon,  2  Mart.  N.  S. 
401  ;  Thomas  r.  Generis,  16  Ixmis.  R. 
433 ;  Jose])hine  r.  I'oultney,  1  Louis. 
An.  K.  32'.»  ;  Marie  Louise 'r.  ^Llrot,  9 
Louis.  R.  173  ;  and  the  great  case  of  the 
Slave  Grace,  2  Hagg.  Ad.  94,  hefore  Lord 
Stowell,  which  seems  to  he  opjjosed  to 
the  doctrine  of  the  Louisiana  decisions. 
In  1846,  and  suhse(juent  to  the  Louisiana 
cases  above  cited,  a  statute  was  enacted 


in  that  State  upon  this  subject ;  and  for 
the  construction  of  it  see  Eugene  v.  Pre- 
val,  2  Louis.  An.  180;  Conant  v.  Gues- 
nard,  5  id.  696.  See  also,  upon  this  sub- 
ject, Strader  r.  Graham,  3  B.  Monr.  173; 
Mercer  v.  Gilman,  11  id.  210;  Vaughan 
V.  Pliebc,  1  Mart.  &  Yerg.  1  ;  Blackmorc 
r.  Pliill,  7  Yerg.  452  ;  Jackson  v.  Bullock, 
12  Conn.  38. 

(c)  Hunter  v.  Fulcher,  1  Leigh,  172; 
Rankin  c.  Lvdia,  2  A.  K.  ALirsh.  467, 
475  ;  Harry  i".  Decker,  Walk.  36.  —  The 
language  of  some  cases  is  indeed  such  as 
to  admit  of  the  inference  that  a  Jiuh/ment 
of  freedom,  in  the  State  by  whose  laws  the 
emancipation  is  alleged  to  take  effect, 
might  be  required  by  the  court  of  the 
other  State  ;  but  it  is  believed  that  the 
doctrine  of  the  text  would  be  followed  at 
this  day.  See  Mahoney  r.  Ashton,  4  H 
&  McH.  295  ;  but  compare  Stewart  v 
Oakes,  5  H,  &  Johns.  107,  note,  and  Da 
vis  V.  Jaquin,  id.  100. 

((/)  Catin  V.  D'Orgenov,  8  Mart.  219. 

(c)  Louis.  Civ.  Code,  Art.  193. 

[3G7] 


346- 


THE   LAW    OF    CONTRACTS. 


[book  I. 


gift  or  legacy  reverts  to  the  donor.  (/ )  Possibly,  provisions 
upon  the  subject,  (though  less  complete,)  are  to  be  found  in  the 
statute-books  of  other  States. 

It  seems  that,  without  the  aid  of  a  statute,  a  court  of  equity 
will  not  enjoin  the  master  of  a  slave,  who  is  entitled  to  his  free- 
dom at  a  future  day,  from  removing  him  out  of  the  State  ;  —  at 
least  such  an  injunction  will  not  be  granted  upon  the  prayer  of 
the  slave  himself,  (g-) 

What  is  the  condition  of  the  children  of  a  statu-libera,  or 
female  slave  entitled  to  freedom  at  a  future  time?  No  ques- 
tion In  this  whole  subject  is  of  more  interest,  and  it  has  re- 
ceived the  consideration  due  to  its  consequence.  On  the  one 
side  it  has  been  contended  that  the  mother  in  such  a  case, 
though  enjoying  the  prospect  of  freedom,  (which,  indeed,  may 
never  be  realized,  as  she  may  die  before  the  day,)  is  still  a 
slave,  and  can  only  communicate  to  her  offspring  born  during 
the  interim  her  present  status;  and  that  they  therefore  are  slaves 
absolutely.  And  so  the  decisions  have  been  ;  [h)  though  there 
are  obviously  very  strong,  if  not  stronger  reasons  to  the  con- 
trary. («)  It  has  been  said  [j)  that  it  is  not  even  in  the  power 
of  the  original  owner,  at  the  time  he  grants  the  freedom  of  the 
mother  inftituro,  to  dispose  of  her  unborn  children,  and  to  give 
them  their  freedom,  either  at  birth  or  a  time  subsequent.  How- 
ever, statutes  have  been  passed  in  at  least  three  States,  provid- 
ing for  the  case  more  equitably,  (k) 


(f)  Louis.  Civ.  Code,  Art.  195. 

(//)  Ne<.n-o  Harriett  ;.'.  Ridgeley,  9  G.  & 
Jolitis.  174,  wliere  an  iiijunction  was  re- 
fused. —  in  Moosa  i'.  Allain,  4  Mart.  N. 
S.  102,  Mirtin,  J.,  said,  in  relation  to  the 
condition  of  a  stalu-liber:  "Perhaps  the 
slave  may  be  allowed  the  aid  of  the  mag- 
istrate, in  case  of  an  evident  attempt  to 
transport  liim  out  of  the  jurisdiction  of 
the  State  in  order  to  frustrate  his  hojie  of 
emancipation,  under  the  will  and  sale,  by 
com])clling  the  purchaser  to  give  security 
for  the  forthcoming  of  the  slave  in  due 
time,  or  otherwise." 

(h)  Maria  v.  Surbaugli,  2  Rand.  228, — 
■where  a  very  eIal)orate  opinion  was  given 
by  Green,  J.  ;  Catin  r.  D'Orgenoy,  8 
Mart.  218;  McCutehen  v.  Marshall,  8 
Pet.  220  ;  Ned  v.  Beal,  2  Bibb,  298. 

[368] 


(/)  Compare  that  part  of  the  opinion  of 
Judge  Green,  in  Mai-ia  v.  Surbaugh,  2 
Hand.  229,  231,  in  which  he  examines  the 
argument  for  the  mother  and  children, 
with  the  view  taken  of  the  nature  of  a  be- 
quest of  freedom  by  Taney,  C.  J.,  in  Wil- 
liams V.  Ash,  1  How.  14. 

{j)  Sec  per  Green,  J.,  Maria  v.  Sur- 
baugh, 2  Rand.  228,  23.5.  But  see  the 
case  of  Negro  Jack  v.  Hopewell,  adjudged 
by  the  Court  of  Appeals  of  Maryland  in 
the  year  1784,  and  reported  in  6  H.  & 
Johns.  20,  note. 

(k)  The  Maryland  statute,  1809,  ch. 
171,  enables  the  owner  of  the  mother  to 
declare,  in  the  deed  or  will  by  whicli  he 
prospectively  manumits  the  mother,  what 
shall  be  the  condition  of  her  children  born 
in  the  mean  while.   In  the  absence  of  such 


CH.  XXI.] 


SLAVES. 


*347 


*There  is  a  case,  closely  allied  to  that  of  a  grant  of  freedom 
infuturOj  but  distinguishable  from  it,  and  capable  of  giving  rise 
to  very  different  consequences.  This  is  a  grant  of  immediate 
freedom,  accompanied  with  a  reservation  of  service  for  a  time 
specified,  and  making  such  service  the  condition  of  the  eman- 
cipation. It  has  been  held  that  the  child  of  a  negro  woman, 
born  during  the  time  of  service  so  reserved,  is  free  from  its 
birth.  (/)  It  seems  that  such  a  reservation  of  service  is  not  en- 
forceable by  the  master  against  the  woman,  [m) 


a  declaration  by  him,  it  is  enacted  that 
the  children  shall  be  slaves.  Chew  ?■. 
Gary,  6  H.  &  .Johns.  52.5, 'was  a  decision 
under  this  statute.  —  The  language  of  the 
Virginia  statute  is  :  "  Tiic  increase  of  any 
female  so  emancipated  by  deed  or  will 
hereafter  made,  born  between  the  death  of 
the  testator  or  the  record  of  tlic  deed,  and 
the  time  when  her  right  to  the  enj(jynu'nt 
of  her  freedom  arrives,  shall  also  be  free 
at  that  time,  unless  the  deed  or  will  other- 
wise provides."    Kev.  Code  1849,  eh.  103, 


§  10.  —  In  Louisiana  the  provision  is  as 
follows  :  "  The  child  bom  of  a  woman, 
after  she  has  acquired  the  right  of  being 
fi-ee  at  a  future  time,  follows  the  condition 
of  its  mother,  and  becomes  free  at  the  time 
fixed  for  her  enfranchisement,  even  if  the 
mother  should  die  before  that  time." 
Civ.  Code,  Art.  196. 

(/)  Isaac  V.  West,  6  Rand.  652. 

[ill)  See  per  Green,  J.,  Isaac  v.  "West,  6 
Rand.  656,  657. 

[369] 


348-*349  THE   LAW    OF    CONTRACTS.  [bOOK  I. 


CHAPTER  XXn. 

OF   OUTLAWS,   PERSONS    ATTAINTED,   AND   PERSONS   EXCOMMUNICATED. 

The  process  of  Outlawry  was  common  in  England  under 
the  Saxon  kings.  By  it  a  person  was  placed  wholly  out  of  the 
protection  of  the  law,  so  that  he  was  incapable  of  bringing  any 
action  for  redress  of  injury  ;  and  it  also  worked  a  forfeiture  of 
all  goods  and  chattels  to  the  king.  Until  some  time  after  the 
conquest  it  was  confined  to  cases  of  felony ;  but  then  it  was 
extended  by  statute  to  all  actions  for  trespasses  vi  et  armis. 
By  later  statutes  it  has  been  extended  to  other  civil  actions. 
An  outlaw  might  be  arrested  by  the  writ  of  capias  utlag-atum, 
and  committed  until  the  outlawry  was  reversed.  But  this  re- 
versal was  granted  on  any  plausible  ground,  if  the  party  came 
into  court  himself  or  by  attorney ;  the  process  being  used  in 
modern  times  merely  to  compel  appearance.  (;«)  In  some  of 
our  older  States  process  of  outlawry  was  permitted  and  regu- 
lated by  statute ;  but  it  never  had  much  practical  existence  in 
this  country,  and  is  now  wholly  disused,  (o) 

Attainder,  by  the  common  law,  was  the  inseparable  conse- 
quence of  every  sentence  of  death.  Attainder  for  treason 
worked  a  forfeiture  of  all  estates  to  the  king,  and  such  "  cor- 
ruption of  blood  "  that  he  could  neither  inherit,  nor  could  any 
one  inherit  from  him  ;  he  was  utterly  deprived  of  all  rights,  and 
wholly  incapacitated  from  acting  under  the  protection  of  the 
law,  either  for  himself  or  for  another.  In  the  words  of  Black- 
stone,  "  the  law  sets  a  note  of  infamy  upon  him,  puts  him  out 
of  its  protection,  and  takes  no  further  care  of  him  than  to  see 
him  executed  ;  "  and  "  by  an  anticipation  *of  his  punishment  he 

(n)  3  Bl.  Coin.  284.  (o)  See  7  Dane's  Abr.  313. 

[370] 


CH.   XXn.]  OUTLAWS,   ETC.  349 

is  already  dead  in  law."  (p)  During  the  conflicts  in  England 
between  different  claimants  of  the  throne,  and  between  the 
sovereign  and  the  people,  this  tremendous  engine  of  oppression 
was  unsparingly  used,  and  sometimes  under  circumstances 
which  gave  to  it  the  character  of  extremest  cruelty.  It  may 
well  be  believed  that  such  a  process  would  not  find  favor 
among  us  either  when  we  were  colonies,  or  after  we  had  be- 
come States ;  and  it  has  no  existence  here. 

Excommunication  expels  a  person  from  the  Church  of  Eng- 
land, and  as  the  civil  law  comes  in  aid  of  the  ecclesiastical 
power  of  that  country,  it  has  been  of  great  moment  there ;  and 
as  it  worked  a  disability  almost  entire,  it  was  an  instrument  of 
great  power  in  the  hands  of  the  ecclesiastical  authorities.  But 
in  this  sense  excommunication  can  have  no  existence  in  this 
country,  as  we  have  no  national  church,  recognized  and  armed 
by  the  civil  law.  We  have,  however,  churches,  which  with  us 
are  only  voluntary  associations  organized  for  religious  purposes. 
As  such  they  are  recognized  and  protected  by  the  law.  They 
must  have  the  right  to  determine  as  to  their  own  membership, 
and  to  provide  for  this  by  forms  and  by-laws,  which  if  they  con- 
tradict no  principles  or  provisions  of  law,  and  interfere  with  no 
personal  rights,  would  doubtless  be  regarded  by  the  courts,  {pp) 
But  all  questions  which  come  up  in  relation  to  the  rights  or 
contracts  of  a  person  severed  from  such  society,  by  an  act  of 
"  excommunication,"  would  be  governed  by  the  general  prin- 
ciples of  the  law  of  property,  or  of  the  law  of  contracts. 

{p)  4  BI.  Com.  380.  (pp)  Famsworth  v.  Storrs,  5  Cush.  412. 

[371] 


BOOK    II. 


CONSIDERATION    AND    ASSENT. 


VOL.  I.  32 


I 


BOOK    II. 


CHAPTER    L 

COXSIDERATION. 

Sect.  I.  —  The  Necessity  of  a  Consideration. 

A  PROMISE  for  which  there  is  no  consideration  cannot  be  en- 
forced at  law.  This  has  been  a  principle  of  the  common  law 
from  the  earliest  times,  [q)  It  is  said  to  have  been  borrowed 
from  the  Roman  law.  The  phrase  ^^  nudum  pactiwi"  —  com- 
monly used  to  indicate  a  promise  without  consideration  —  cer- 
tainly was  taken  from  that  law ;  but  it  does  not  mean  with  us 
precisely  what  the  Roman  jurists  understood  by  it.  By  the 
civil  law  gratuitous  promises  could  be  enforced  only  where  they 
were  made  with  due  formality,  and  in  prescribed  language  and 
manner;  then  such  agreement  was  a  ^^ pactum  verbis prcscriptis 
vesiitum,'"  and  where  such  promise  was  not  so  made  it  was 
called  a  "  nudum  pactum,'^  (r)  that  is,  nudinn  because  not  vesiitum. 
But  an  agreement  thus  formally  ratified  or  "  vesiitum ''  was  en- 
forced without  reference  to  its  consideration  ;  whereas  a  "  nudum 
pactum,^^  or  promise  not  formally  ratified,  was  left  to  the  good 
faith  of  the  promisor,  the  law  refusing  to  aid  in  its  enforcement, 
unless  the  promisee  could  prove  a  distinct  consideration.     The 

(7)  17  Ed.  4,  4,  pi.  4 ;  3  Hen.  6,30,  the   cases   on   the   whole   topic   arc   ably 

pi.  33;  Bro.  Abr.  Adiou  sur  Ir  Cnsr,  40.  collected. 

—  Sec  on  the  subject  of  Consideration  ar-  (;•)  Vin.  Conimen.  de  Inst.  HI).  3,   tit. 

tides    by   "  E.    L.    P."    in    tlic    Minth,  14,  p.  639,  cd.   1755;  Ibidem,  lib.  3,  do 

May,   and  July   numbers  of  the  Amcri-  verborum  oblic:alionibns,  tit.  16,  p.  677; 

can    Law   Eejjister   for    1854,    in   which  Cod.  Lili.  7,  tit.  52,  0th  cd.  Gothofrcd. 

[075] 


354- 


THE    LAAV    OF    CONTRACTS. 


[book  II. 


principle  of  this  is,  obviously,  that  if  a  contract  be  not  founded 
uppn  a  consideration,  it  shall  not  be  enforced,  unless  ratified  in 
such  a  way  as  may  show  that  it  was  deliberate,  intentional,  and 
disti nelly  understood  by  both  parties.  The  rule  was  intended 
to  protect  parties  from  mistake,  inadvertence,  or  fraud.  A  sim- 
ilar rule  or  practice,  grounded  on  a  similar  purpose,  prevails  on 
the  continent  of  Europe ;  where  contracts  which  are  properly 
ratified  and  confirmed,  before  a  public  notary  or  similar  magis- 
trate, are  valid  without  inquiry  into  their  consideration  ;  while 
a  private  contract  can  be  enforced  only  on  proof  of  a  considera- 
tion. And,  indeed,  it  can  only  be  the  same  principle  which 
makes  reasonable  an  ancient  and  well-established  distinction 
in  the  common  law,  by  virtue  whereof  a  contract  under  seal  is 
in  general  valid  without  reference  to  the  consideration  ;  not  by 
way  of  exception  to  the  rule  that  no  promise  can  be  enforced 
which  was  not  made  for  a  consideration,  but  because,  as  it  is 
said,  the  seal  implies  a  consideration.  The  only  real  meaning 
of  this  must  be,  that  the  act  of  sealing  is  —  as  it  was  in  fact 
formerly  much  more  than  it  is  now  —  a  deliberate  and  solemn 
act,  implying  that  caution  and  fulness  of  assent  which  the  rule 
of  the  civil  law  was  intended  to  secure,  [s) 


(s)  That  this  is  the  real  distinction  be- 
tween contracts  under  seal  and  contracts 
not  under  seal,  see  Plowd.  Ai'g.  in  Shar- 
ington  V.  Stratton,  Plow.  E.  308.  "Words," 
says  he,  "  pass  from  man  to  man  lightly 
and  inconsiderately ;  bnt  where  the  agree- 
ment is  by  deed  there  is  more  time  for  de- 
liberation ;  for  when  .1  man  passes  a  thing 
by  deed,  first  there  is  the  determination  of 
the  mind  to  do  it ;  and  upon  that  he  causes 
it  to  be  written,  whicli  is  one  part  of  de- 
liberation, and  afterwards  he  puts  his  seal 
to  it,  which  is  another  part  of  deliberation  ; 
and  lastly  he  delivers  the  writing  as  his 
deed,  which  is  the  consummation  of  his 
resolution  ;  so  that  tliere  is  great  delibera- 
tion used  in  the  making  of  deeds,  for  which 
reason  they  are  received  as  a  Hen  final  to 
the  party,  and  are  adjudged  to  bind  the 
party,  without  examining  upon  what  cause 
or  consideration  they  were  made.  As  if 
I,  by  deed,  promise  to  give  you  .£20,  here 
you  shall  have  an  action  of  debt  upon  this 
deed,  and  the  consideration  for  my  prom- 
ise is  not  examinable ;  it  is  sufficient  to 
say  it  was  the  will  of  the  party  who  made 

[376] 


the  deed."  Sec  2  Smith's  Leading  Cases, 
456.  See  also,  Morley  v.  Boothby,  3 
Bing.  Ill  ;  Fallowes  v.  Taylor,  7  T.  11. 
477  ;  Shuhrick  r.  Salmond,  3  Burr.  1639  ; 
Fonbl.  on  Eq.  Vol.  1,  p.  344,  n.  a.  — 
Some  writers  on  contracts  have  said  that 
specialties  do  not  require  a  consideration 
to  render  them  obligatory  at  la^V  ;  but  this 
seems  to  be  somewhat  inaccurate.  The 
existence  of  a  consideration  seems  to' be  as 
essential  in  the  case  of  deeds  as  in  simple 
contracts,  but  that  existence  is  conclusively 
presumed  from  the  nature  of  the  contract. 
It  seems  that  in  some  of  the  States  by 
usage,  and  in  others  by  statute,  the  want 
or  failure  of  consideration  may  be  a  good 
defence  against  an  action  on  a  sealed  con- 
tract. Sec  Gray  r.  Handkinson,  1  Bay, 
278;  State  r.  Gaillard,  2  id.  11  ;  Swift  r. 
Hawkins,  1  Dallas,  17  ;  Solomon  r.  Kim- 
mel,  5  Binn.  232 ;  Case  v.  Boughton,  1 1 
Wend.  106  ;  Leonard  v.  Bates,  1  Blackf. 
173;  Coyle  v.  Fowler,  3  J.  J.  Marsh. 
473  ;  Bcebles  v.  Stephens,  1  Bibb,  500 ; 
Walker  v.  Walker,  13  Ire.  L.  335 ;  Mat- 
lock V.  Gibson,  8  Rich.  Law,  437. 


en.  I.] 


CONSIDERATIOX. 


355-»356 


By  the  civil  law,  and  the  modern  continental  law,  the  con- 
sideration is  the  cause  of  the  contract.  This  principle  is  quoted 
and  apparently  adopted  by  Plowden  ;  and  it  has  been  recently 
acknowledged  by  high  judicial  authority,  and  the  cause  dis- 
tinctly discriminated  from  the  motive,  (t) 

Doubts  have  been  expressed  whether  a  contract  reduced  to 
writing  was  not  in  this  respect  the  same  as  one  under  seal,  (u) 
But  this  question  is  now  abundantly  settled;  and  both  in  this 
country  and  in  England  a  consideration  must  be  proved,  where 
the  contract  is  in  writing  but  not  under  seal,  as  much  as  if  the 
contract  were  oral  only,  (y)  The  exceptions  to  this  rule  in  the 
case  of  mercantile  negotiable  paper  are  considered  elsewhere. 

It  is  a  general  rule,  that  where  this  consideration  is  expressed 
in  a  written  contract  no  other  can  be  proved,  {w)  *unless  there 
are  words  which  indicate  other  considerations  ;  (x)  for  this  would 
be  an  alteration  of  the  contract  by  evidence  aliunde.  The 
same  rule  is  said  to  be  applied  in  equity,  unless  relief  is  sought 


(0  Thomas  v.  Thomas,  2  Q.  B.  R.  851. 
Ih  this  ciise  the  defendant  contended  that 
the  motive  with  widch  an  a;:^reemcnt  had 
been  made  was  a  part  of  the  legal  consid- 
eration, and  that  tiie  declaration  ought  to 
have  set  out  the  same  with  the  other  con- 
siderations, l)ut  Pattcson,  J.,  said :  "  It 
would  he  giving  to  causa  too  large  a  con- 
struction if  we  were  to  ado|)t  the  view 
urged  for  the  defendant ;  it  would  he  con- 
founding consideration  with  motive.  Mo- 
tive is  not  the  same  thing  with  considera- 
tion. Consideration  means  something 
which  is  of  some  value  in  the  eye  of  the 
law,  moving  from  the  plaintift';  it  may  be 
some  benefit  to  the  defendant,  or  some 
iletriment  to  the  plaintiff;  Imt  at  all  events 
it  must  be  moving  from  the  plaintiff. 
Now  that  which  is  suggested  as  the  con- 
sideration heiv,  a  pious  respect  for  the 
wishes  of  the  testator,  docs  not  in  any  way 
move  from  the  plaintiff;  it  moves  from 
the  testator ;  therefore,  legally  speaking, 
it  forms  no  part  of  the  consideration." 
See  also,  Lilly  r.  Hays,  Tj  Ad.  &  El.  548; 
Smith  on  C'oiit.  p.  88,  note.  —  In  Mouton 
V.  Noble,  1  Louis.  An.  K.  192,  /^k-W/.s,  C. 
J.,  said  :  "  Civilians  use  the  word  cause  in 
relation  to  obligations,  in  the  same  sense 
as  the  word  consideration  is  used  in  tlic 
jurisprudence  of  England  and  tlie  LTnited 
States." 

*32 


(u)  Rann  v.  Hughes,  3  T.  R.  350,  n.  a, 
7  Hro.  P.  C.  550 ;  Tillans  i'.  Van  Mierop, 
3  Burr.  1663. 

{v)  Cook  V.  Bradley,  7  Conn.  57 ; 
Dodge  V.  Burdell,  13  Cqnn.  170;  Beanr. 
Burbank,  16  Maine,  458;  Beverleys  r. 
Holmes,  4  Munf.  95  ;  Brown  v.  Adams,  I 
Stew.  51  ;  Burnet  v.  Bisco,  4  Johns.  235 ; 
People  ('.  Shall,  9  Cow.  778;  Roper  r. 
Stone,  Cooke,  499  ;  Clark  r.  Small,  6 
Yerg.  418;  Perrinc  ?•.  Cheeseman,  6 
Halst.  174.  —  The  consideration,  however, 
need  not  be  expressed  in  the  writing.  It 
may  be  proved  aliunde.  Tinglev  r.  Cut- 
ler, 7  Conn.  291  ;  Arms/-.  Ashley,  4  Pick. 
71  ;  Cummingsr.  Dennett,  26  Maine,  307  ; 
Mouton  (,'.  Noble,  1  Louis.  An.  R.  192; 
Thompson  v.  Blanchard,  3  Comst.  335  ; 
Patchin  v.  Swift,  21  Venn.  292.  The  ad- 
mission of  a  consideration  in  the  writing 
is  of  course  prima  facie  evidence  of  its 
existence.  Whitney  v.  Stearns,  16  Maine, 
394. 

(w)  Sclicrmerhom  v.  Vanderhevden,  1 
Johns.  139  ;  Veacock  v.  Mc{"all,'(;ilpLn, 
329 ;  Emery  r.  Cha.se,  5  Greenl.  232  ; 
Howes  r.  Barker,  3  Johns.  506  ;  Cutter  r. 
Reynolds,  8  B.  Monroe,  596  ;  Mitchell  v. 
Wflliamson,  6  Maryl.  210. 

(j)  Maigley  c.  Hauer,  7  Johns.  341. 


[377] 


357* 


THE   LAAV   OP   CONTRACTS. 


[book  II. 


against  the  instrument  on  the  ground  of  fraud  or  mistake ;  (i/) 
but  where  not  expressed  it  may  be  proved,  (z)  And  where  the 
contract  declares  that  it  was  made  for  valuable  consideration, 
this  is  prund  facie  evidence  of  such  consideration,  (a) 


SECTION    II. 

KINDS    OF   CONSIDERATIONS. 

The  civil  law  division  of  all  considerations  into  four  species, 
very  clearly  stated  by  Blackstone,  is  logically  exact  and  exhaus- 
tive ;  (b)  but  it  has  never  been  so  far  introduced  into  *the  com- 
mon law  as  to  be  of  much  practical  utility  in  determining  ques- 
tions of  law. 

The  fundamental  distinction  in  the  common  law  is  between 
those  cases   where  the  consideration  is  a  benefit  to   him  who 


{)/)  Clarksoii  v.  Hamvay,  2  P.  Wms. 
20.3';  Peacock  v.  Monk,  1  Ves.  Sen.  127 ; 
Filmer  v.  Gott,  7  Bro.  P.  C.  70.  —  But 
the  more  modern  decisions  allow  the  maker 
of  a  deed  'or  contract  in  writing  to  show 
other  and  additional  considerations  to 
those  expressed  in  the  instrument.  Em- 
mons V.  Littlelicld,  13  Maine,  233  ;  Tyler 
V.  Carlton,  7  Greenl.  175;  Wallis  i'.Wal- 
lis,  4  Mass.  13.5,  Parsons,  C.  J. ;  Quarles 
V.  Quarles,  id.  680 ;  Wilkinson  v.  Scott, 
17  id.  249. 

(z)  Orms  V.  Ashley,  4  Pick.  71  ;  Ting- 
iey  V.  Cutler,  7  Conn.  291. 

(a)  Whitney  v.  Stetu-ns,  16  Maine,  394. 
Sec  Sloan  v.  Gibson,  4  Missouri,  33. 
Contra,  Glen  Cove  Mut.  Ins.  Co.  v.  Har- 
rold,  20  Barl).  298, 

(b)  "These  valuable  considerations  arc 
divided  by  the  civilians  into  four  species. 
I .  Do,  lit  des  ;  as  when  I  give  money  or 
goods,  on  a  contract,  that  I  shall  be  repaid 
money  or  goods  for  them  again.  Of  this 
kind  are  all  loans  of  money  upon  bond  or 
promise  of  repayment ;  and  all  sales  of 
goods,  in  vvliicii  there  is  cither  an  express 
contract  to  pay  so  much  for  them,  or  else . 
the  law  imjilics  a  contract  to  pay  so  much 
as  they  are  worth.  2.  The  second  species 
is,  facia,  id  facias  ;  as  when  I  agree  with  a 
man  to  do  his  work  for  him,  if  he  will  do 
mine  for  me ;  or  if  two  persons  agree  to 

[  378  ] 


many  together,  or  to  do  any  other  positive 
acts  on  both  sides.  Or  it  may  be  to  for- 
bear on  one  side  in  consideration  of  some- 
thing done  on  the  other,  as,  that  iu  con- 
sideration A,  the  tenant,  will  repair  his 
house,  B,  the  landloi-d,  will  not  sue  him 
for  waste.  Or  it  may  be  for  mutual  for- 
bearance on  both  sides  ;  as,  that  in  consid- 
eration that  A  will  not  trade  to  Lisbon,  B 
will  not  trade  to  Marseilles  ;  so  as  to  avoid 
interfering  with  each  other.  3.  The  third 
species  of  consideration  is  facio,  tit  dcs ; 
when  a  man  agrees  to  j^erform  any  thing 
for  a  price,  either  specifically  mentioned, 
or  left  to  the  determination  of  the  law  to 
set  a  value  to  it.  And  when  a  servant 
hires  himself  to  his  master  for  certain 
wages,  or  an  agreed  sum  of  money,  here 
the  servant  contracts  to  do  his  master's 
service,  in  order  to  earn  that  specific  sum. 
Otherwise  if  he  be  hired  generally ;  for 
then  he  is  under  an  implied  contract  to 
perform  this  service  for  what  it  shall  be 
reasonably  worth.  4.  The  fourth  species 
is,  Vo,  ut facias;  which  is  the  direct  coun- 
terpart of  the  preceding.  As  when  I  agree 
with  a  servant  to  give  him  sucli  wages 
upon  his  performing  such  work ;  which  is 
nothing  else  but  the  last  species  inverted 
for  servus  fucit,  ut  lu-rus  clet,  and  herus  dat, 
lit  servus  faci at."     2  BI.  Com.  444. 


CII.  I.]  COXSIDERATIOI^r.  *358 

makes  the  promise,  and  those  in  which  it  is  some  injury  to  him 
who  receives  the  promise.  For  it  is  a  perfectly  well-settled 
rule,  that  if  a  benefit  accrues  to  him  who  makes  the  promise, 
or  if  any  loss  or  disadvantage  accrues  to  him  to  whom  it  is 
made,  at  the  request  or  on  the  motion  of  the  promisor,  although 
without  benefit  to  the  promisor,  in  either  case  the  consideration 
is  sufficient  to  sustain  assumpsit,  (c) 

Considerations  at  common  law  may  be  good,  or  valuable. 
The  definition  of  Blackstone  is  this  :  —  "A  good  consideration 
is  such  as  that  of  blood,  or  of  natural  love  and  affection,  when  a 
man  grants  an  estate  to  a  near  relation;  being  founded  on 
motives  of  generosity,  prudence,  and  natural  duty.  A  valuable 
consideration  is  such  as  money,  marriage,  or  the  like,  which  the 
law  esteems  an  equivalent  given  for  the  gi-ant;  and  is  therefore 
founded  in  motives  of  justice."  {d)  A  valuable  consideration 
is  usually  in  some  way  pecuniary,  or  convertible  into  money  ; 
marriage,  which  it  is  now  settled  is  a  valuable  consideration,  (e) 
is  the  principal  exception  to  this. 

An  equitable  consideration  is  sufficient  as  between  the 
parties,  although  it  be  not  valuable ;  but  only  a  valuable  con- 
sideration is  valid  as  against  a  third  party,  as  a  subsequent 
purchaser,  (/)  whose  debt  existed  when  the  contract  was 
made,  an  attaching  creditor,  or  the  like.  It  is  at  least  'true  that 
an  equitable  consideration  is  sufficient  in  all  conveyances  by 
deed,  and  in  transfers  not  by  deed,  but  accompanied  by  imme- 
diate possession,  [g)     But  where  there  is  a  promise,  perform- 

(c)  Com.  Di.2;.  Action  upon  the  Case  only  inijjht  be  a  '  rahiahle'  consideration 

upon  Assumpsit  (B.  1);  I'illans  v.  Van  in  the  aksence  of  a  'ijood'  consideration, 

Mierop,  3  l{urr.  1C73 ;  Nerot  «•.  Wallace,  but    the   two   considerations   are   seldom 

3  T.  R.  24  ;  IJunn  v.  Guy,  4  East,  194;  united.     When  there  is  a  'f/ood'  consid- 

Willats  V.  Kennedy,  8  Binj^.  5 ;  Miller  v.  cration   tlicrc   is   not    {generally,    also,   a 

Drake,  I  Caines,  45  ;  Powell  v.  Brown,  3  'valuable'   consideration,  i\nd  "e  converso. 

Johns.  100;    Forster  v.  Fuller,  G   Mass.  There  may  be  a   vahialile   consideration, 

58;  Townsley    v.   Sumrall,   2   Pet.    182;  which  h  not  valid  in  law." 

Ilildreth  v.  I'inkerton  Academy,  1)  Fost.  (e)  Whelan   v.   Whelan,  3    Cow.   537  ; 

227  ;  Ilaincs  v.  Haines,  G  Maryf.  435.  Sterry  v.  Arden,  1  Johns.  Ch.  261  ;  Barr 

{d)  2  Bl.  Com.  297.    In  Coyle  v.  Fow-  v.  Hill,  Add.  27G ;  Hustin  v.  Cantril,  11 

ler,  3  J.  J.  Marsh.  473,  it  is  said:  "A  Leigh,  136  ;  Ma<,'niacf.  Thompson,  7  Pet. 

plea  that  a  note   wa.s   executed   without  348. 

any  'good'  consideration  would  not  lie  a  { f)  Lord  Tenterden,  C.  J.,  in  Gully  i'. 

bar  to  a  suit  on  the  note,  because  it  is  im-  Bishop  of  Exeter,  10  B.  &  C.  606;  Cllitty 

material  whether  there  was  a  'good'  con-  on  Cont.  28. 

sideration  or  not,  provided  there  was  a  (7)  Noble  v.  Smith,  2  .Johns.  52;  Gran- 

'  valuable'  consideration;    and   there   not  gaic  v.  Arden,  10  Johns.  293;  Pitts  v. 

[379] 


359* 


THE    LAW    OF    CONTRACTS. 


[book  II. 


able  of  course  in  future,  and  the  consideration  is  only  moral, 
there  it  might  have  been  said  formerly  that  the  law  was  not 
positively  settled.  But  the  late  cases  settled  the  question  defin- 
itively. Mr.  Baron  Parke  has  said,  "  a  mere  moral  consideration 
is  nothing^  {h)     Neither  the  rule  *which  so  distinctly  postpones 


Mangum,  2  Bailey,  588  ;  Peai'son  v.  Pear- 
son, 7  Johns.  26  ;'  Frisbie  v.  McCarty,  1 
Stew.  &  Port.  56 ; '  Fowler  v.  Stuart,  1 
McCord,  504  ;  Ewing  v.  Ewing,  2  Leigh, 
337  ;  Carpenter  v.  Dodge,  20  Verm.  595. 
In  Smith  v.  Smith,  7  C.  &  P.  401,  it  was 
held  that  a  gift  from  a  father  to  a  son  of  a 
watch,  chain,  and  seals,  was  valid  npon 
delivery,  and  the  father  could  not  after- 
wards revoke  the  gift. 

(h)  Jennings  t\  Brown,  9  !M.  &  "VV.  501. 
This  subject  was  examined  at  length  in 
the  late  case  of  Eastwood  r.  Kenyon,  11 
Ad.  &  Ell.  438,  where  it  was  hekl  that  a 
pecuniary  benefit,  voluntarily  conferred 
by  plaintiff  and  accepted  by  defendant,  is 
not  such  a  consideration  as  will  support 
an  action  of  assumj^sit  on  a  subsequent 
express  promise  by  defendant  to  reimburse 
plaintiff.  Therefore,  where  the  declara- 
tion in  assumpsit  stated  that  plaintiff  was 
executor  of  the  father  of  defendant's  wife, 
who  died  intestate  as  to  his  land,  leav- 
ing defendant's  wife,  an  infant,  his  only 
child  and  heir ;  that  plaintiff  acted  as  her 
guardian  and  agent  during  infancy,  and 
in  that  capacity  expended  money  on  her 
maintenance  and  education,  in  the  man- 
agement and  improvement  of  the  land, 
and  in  paying  the  interest  of  a  mortgage 
on  it ;  tliat  the  estate  was  benefited  there- 
by to  the  full  amount  of  such  expendi- 
ture ;  that  plaintiff,  being  unable  to  repay 
himself  out  of  the  personal  assets,  bor- 
rowed money  of  A.  B.  on  his  promissory 
note ;  that  the  defendant's  wife,  when  of 
age  and  before  marriage,  assented  to  the 
loan  and  the  note,  and  requested  plaintiff 
to  give  up  the  management  of  the  property 
to  her,  and  promised  to  pay  the  note,  and 
did  in  fact  pay  one  year's  interest  on  it; 
that  plaintiff  thereupon  gave  up  the  man- 
agement accordingly ;  tliat  defendant,  after 
his  marriage,  assented  to  the  plaintiff's 
accounts,  and  upon  such  accounting  a 
certain  sum  was  found  due  to  plaintitt'  for 
moneys  so  spent  and  borrowed ;  that  the 
defendant,  in  right  of  his  wife,  received  all 
the  benefit  of  plaintiff's  said  services  and 
expenditure,  and  tliereupon  in  considera- 
tion of  the  premises,  promised  plaintiff  to 
pay  and  discharge  the  note.     Held,   on 

[380] 


motion  in  arrest  of  judgment,  that  the 
declaration  was  bad  as  not  disclosing  a 
sufficient  consideration  for  defendant's 
promise.  And  Lord  Denman  said  in  giv- 
ing judgment :  —  "  Most  of  the  older  cases 
on  this  subject  are  collected  in  a  learned 
note  to  the  case  of  Wennall  v.  Adney,  3 

B.  &  P.  249,  and  the  conclusion  there  ar- 
rived at  seems  to  be  correct  in  general, 
'  that  an  express  jjromise  can  only  revive 
a  precedent  good  consideration,  which 
miglit  have  been  enforced  at  law  tlirough 
tlie  medium  of  an  implied  promise,  had  it 
not  been  suspended  by  some  positive  rule 
of  law ;  but  can  give  no  original  cause  of 
action,  if  the  obligation,  on  which  it  is 
founded,  never  could  have  been  enforced 
at  law,  though  not  barred  by  any  legal 
maxim  or  statute  provision.'  Instances 
are  given  of  voidable  contracts,  as  those  of 
infants  ratified  by  an  express  promise 
after  age,  and  distinguished  from  void 
contracts,  as  of  married  women,  not  capa- 
ble of  ratification  by  them  when  widows  ; 
Loyd  V.  Lee,  1  Stra.  94 ;  debts  of  bank- 
rupts revived  by  subsequent  promise  after 
certificate  ;  and  similar  cases.  Since  that 
time,  some  cases  have  occun-cd  upon  this 
subject  which  i-equire  to  be  more  particu- 
larly examined.  Barnes  v.  Hedley,  2 
Taunt.  184,  decided  that  a  promise  to  re- 
pay a  sum  of  money,  with  legal  interest, 
which  sum  had  originallj^  been  lent  on 
usurious  terms,  but  in  taking  the  account 
of  which,  all  usurious  items  had  been  by 
agreement  struck  out,  was  binding.  Lee 
V.  Muggeridge,  5  Taunt.  36,  upheld  an 
assumpsit  by  a  widow  that  her  executors 
sliould  pay  a  bond  given  by  her  while  a 
feme  covert  to  secure  money  then  advanced 
to  a  third  person  at  her  request.  On  the 
latter  occasion  the  language  of  Mansjield, 

C.  J.,  and  of  the  whole  Court  of  Common 
Pleas,  is  very  large,  and  hardly  suscep- 
tible of  any  limitation.  It  is  conformable 
to  the  expressions  used  by  the  judges  of 
this  court  in  Cooper  v.  Martin,  4  East,  76, 
where  a  stepfather  was  permitted  to  re- 
cover from  the  son  of  his  wife,  after  he 
had  attained  his  full  age,  upon  a  declara- 
tion for  necessaries  furnished  to  him  while 
an  infant,  for  which  after  his  full  age,  he 


CH.   I.] 


CONSIDERATION. 


*360 


moral  considerations  to  those  which   are   pecuniary,    nor  that 
which  seems  to  embrace  ^marriage  within  the  same  category  as 


promised  to  pay.  It  is  remarlciilile  that 
in  none  of  these  was  there  any  allusion 
made  to  the  learned  note  above  referred 
to,  which  has  been  very  generally  thought 
to  contain  a  coirect  statement  of  the  law. 
Tlic  case  of  Jiarnes  v.  Hedlcy,  is  fully 
consistent  witli  the  doctrine  in  that  note 
laiil  down.  Cooper  v.  JMartin  also,  when 
fully  examined,  will  be  found  not  to  be 
inconsistent  with  it.  This  last  ca.se  ap- 
pears to  have  occupied  the  attention  of 
the  court  much  more  in  respect  of  the 
supposed  statutable  liability  of  a  step- 
father, which  was  denied  by  the  court, 
and  in  respect  of  what  a  court  of  equity 
would  hold  as  to  a  stepfather's  liability, 
and  rather  to  have  assumed  the  jioint  l)e- 
fore  ns.  It  should,  however,  be  ol)served, 
that  Lord  Elloihorourjli  in  giving  his  judg- 
ment says  :  '  The  plaintiff  having  done  an 
act  benedcial  for  the  defendant  in  his  in- 
fancy, it  is  a  good  consideration  for  the 
defendant's  promise  after  he  came  of  age. 
In  such  a  case  the  law  will  imply  a  re- 
(piest,  and  the  fact  of  the  promise  has 
liccn  found  by  the  juiy ;  '  and  undoubtedly 
the  action  would  have  lain  against  the  de- 
fendant whilst  an  infant,  inasmuch  as  it 
was  for  necessaries  furnished  at  his  re- 
quest in  regard  to  which  the  law  rai.scs  an 
im])lied  prc»misc.  Tlie  case  of  Lee  v. 
Muggcridge  must,  however,  be  allowed  to 
be  decidedly  at  variance  witli  tlie  doctrine 
in  the  note  alluded  to,  and  is  a  decision  of 
great  authority.  It  sliould,  however,  be 
ol>senTd,  that  in  tliat  case  there  was  an 
actual  request  of  the  defendant  during 
coverture,  though  not  one  binding  in  law; 
but  tiie  ground  of  decision  there  taken 
W!i.s  also  e(|ually  api^cablc  to  Littlefield 
V.  Slice,  2  li.  &  Ad.  811,  tried  by  Gasphe, 
J.,  at  N.  P.,  when  the  learned  judge /icW, 
notwithstanding,  that  '  tlic  defendant  iiav- 
ing  l)een  a  married  woman  when  the 
goods  were  supplied,  her  Imsband  was 
originally  liable,  and  there  was  no  consid- 
eration \oY  the  ])romises  declared  upon.' 
After  time  taken  for  delil)eration  this 
court  refused  even  a  rule  to  show  cause 
why  the  nonsuit  should  not  be  set  asi<le. 
Lee  V.  Muggeridge  was  cited  on  tiie  mo- 
tion, and  was  sought  to  lie  distinguished 
by  liord  Tenterden,  because  there  the  cir- 
cumstances raising  the  consideration  were 
sot  out  truly  on  the  record,  but  in  Little- 
field  r.  Shoe  the  declaration  stated  the 
consideration  to  be  that  the  plaintiff  iiad 


supplied  the  defendant  with  goods  at  her 
request,  which  the  plaintiff  failed  in  prov- 
ing, inasmuch  as  it  appeared  that  the 
goods  were  in  point  of  law  supplied  to  the 
defendant's  husband,  and  not  to  her.  But 
Lord  Tenterden  added,  that  tlie  doctrine 
that  a  moral  obligation  is  a  sufficient  con- 
sideration for  a  subsetiuent  promise  is  one 
which  should  be  received  with  some  limi- 
tation. This  sentence,  in  truth,  amounts 
to  a  dissent  from  the  authority  of  Lee  v. 
Muggeridgc,  where  the  doctrine  is  wholly 
unqualified.  The  eminent  counsel  who 
argued  for  the  plaintiff  in  Lee  v.  Mugger- 
idgc spoke  of  Lord  Mansfield  as  having 
considered  the  rule  of  nudum  pactum  as 
too  narrow,  and  maintained  that  all  prom- 
ises deliberatfly  made  ought  to  be  held 
binding.  I  do  not  find  this  language 
ascribed  to  him  by  any  reporter,  and  do 
not  know  whether  we  arc  to  receive  it  as 
a  traditional  report,  or  as  a  deduction 
from  what  he  does  appear  to  have  laid 
down.  If  the  latter,  the  note  to  "Wennall 
V.  Adncy  shows  the  deduction  to  be  erro- 
neous. If  the  former,  Lord  Tenterden 
and  this  court  declared  that  they  could 
not  adoj)t  it  in  Littlefield  v.  Shee.  In- 
deed the  doctrine  would  annihilate  the 
necessity  for  any  consideration  at  all,  inas- 
much as  the  mere  fact  of  giving  a  promise 
creates  a  moral  obligation  to  perform  it." 
The  same  doctrine  was  supported  by  the 
later  case  of  Kayc  r.  Dutton,  7  Mann.  & 
Gr.  807.  —  The  case  of  Lee  v.  Mugger- 
idgc is  clearly  wrong,  and  inconsistent 
with  manj'  subsequent  cases  in  England 
and  this  country,  where  the  doctrine  is 
now  almost  universally  recognized,  what- 
ever it  may  have  been  in  some  earlier 
cases,  that  a  mere  moral  obligation  is  not 
sufficient  to  support  an  express  jiromise. 
Thus,  where  a  son,  who  was  of  full  age, 
and  had  ceased  to  be  a  member  of  his 
father's  family,  was  suddenly  taken  sick 
among  strangers,  and,  being  poor  and  in 
distress,  was  relieved  by  the  plaintifi";  and 
aftenvanls  the  father  wrote  to  the  plain- 
tiff", promising  to  pay  the  expenses  in- 
cuned,  it  was  hrhl  that  such  a  promise 
would  not  sustain  an  action.  Mills  v. 
Wynian,  .I  Pick.  207  ;  White  v.  Bluett, 
24  K.  L.  &  K.  4;U.  J>o  where  the  plain- 
tiff had  furnished  necessaries  to  a  ])erson, 
indigent  and  in  need  of  relief,  and  his  son, 
who  was  of  sufficient  ability,  signed  and 
delrvcred   this    writing   to    the    plaintiff, 

[381] 


361^ 


THE    LAW    OF    CONTKACTS. 


[book  II. 


money,  appears  at  first  sight  very  creditable  to  the  common  law. 
There  is,  however,  one  reason  which  doubtless  had  much  influ- 
ence in  establishing  this  rule ;  and  that  is  the  extreme  difficulty 
of  deciding  between  considerations  bearing  a  moral  aspect, 
which  were  and  which  were  not  suflScient  to  sustain  an  action 
at  law.  And  the  rule  may  now  be  stated  as  follows :  a  moral 
obligation  to  pay  money  or  to  perform  a  duty  is  a  good  consid- 
eration for  a  promise  to  do  so,  where  there  was  originally  an 
obligation  to  pay  the  money  or  to  do  the  duty,  which  was  en- 
forceable at  law  but  for  the  interference  of  some  rule  of  law. 
Thus  a  promise  to  pay  a  debt  contracted  during  infancy,  or 
barred  by  the  statute  of  limitations,  or  bankruptcy,  is  good, 
without  other  consideration  than  the  previous  legal  obligation. 
But  the  morality  of  the  promise,  however  certain,  or  however 
urgent  the  duty,  does  not  of  itself  suffice  for  a  consideration. 
In  fact,  the  rule  amounts  at  present  to  little  more  than  permis- 
sion to  a  party  to  waive  certain  positive  rules  of  law  which 
would  protect  him  from  a  plaintiff  claiming  a  just  debt,  (i) 
*Perhaps  an  illustration  of  the  rule,  that  a  moral  obligation 


namely  :  "  This  may  certify  that  the  debt 
now  due  from  mj'  father  to  A.  [the  plain- 
tiff,] I  acknowledge  to  be  for  necessaries 
of  life,  and  of  such  a  nature  that  I  con- 
sider myself  hereby  obligated  to  pay  A. 
$60  towards  said  debt,  now  due,  provided 
my  fatlier  does  not  settle  with  A.  in  his 
lifetime ; "  it  was  held  that  this  contract 
was  void,  for  want  of  consideration  ;  Cook 
V.  Bradley,  7  Conn.  57.  See  also,  Loomis 
V.  Newhail,  15  Tick.  159,  similar  to  Mills 
?;.  Wyman;  Hawley  i'.  Fan-ar,  1  Verm. 
420  ;  Ingraham  v.  Gilbert,  20  Barb.  152  ; 
Bates  V.  Watson,  1  Sneed,  376  ;  Parker 
V.  Carter,  4  Munf.  273,  where  a  promise 
by  a  son  to  pay  a  debt  for  his  father  was 
held  void  for  want  of  consideration  ;  Mc- 
Pherson  );.  Rees,  2  Penn.  521  ;  Smith  v. 
Ware,  13  Johns.  257,  where  a  lot  of  land 
was  sold,  described  in  the  deed  as  supposed 
to  contain  ninety-three  acres,  but  was 
found  to  be  five  or  six  acres  short,  the 
promise  of  the  seller  to  pay  for  the  defi- 
ciency was  held  to  be  without  considera- 
tion. Prear  i\  Hardenbergh,  5  Johns. 
272,  where  a  promise  to  pay  for  labor  of 
plaintiff  on  land  recovered  from  him  by 
defendant  in  a  suit  at  law,  was  held  void 
for  want  of  consideration.     This  case  was 

[382] 


cited  with  approbation  in  Societ}',  &c.  v. 
Wheeler,  2  Gallison,  143. 

(;■)  Way  v.  Speny,  6  Cush.  238 ;  Tur- 
ner V.  Chrisman,  20'  Ohio,  332  ;  Dodge  v. 
Adams,  19  Pick.  429  ;  Ehle  f."  Judson,  24 
Wend.  97  ;  Warren  v.  Whitney,  24  Maine, 
561  ;  Geer  i:  Ai-cher,  2  Barb.  420-  In 
this  last  case  it  M'as  held  that  an  express 
promise  can  only  revive  a  precedent  good 
consideration,  which  might  have  been  en- 
forced through  the  medium  of  an  implied 
promise,  had  it  nof  been  suspended  by 
some  positive  rule  of  law,  but  can  give  no 
original  riglit  of  action,  if  the  obligation 
on  which  it  is  founded  never  could  have 
been  enforced  at  law,  though  not  baired 
by  any  legal  maxim  or  statute  provision. 
But  it  is  not  necessary  that  the  moral  ob- 
ligation in  order  to  be  a  good  foundation 
for  an  express  promise,  should  be  such 
that,  without  the  express  promise,  an 
action  could  once  have  been  sustained  upon  it. 
But,  if  it  could  have  been  made  available  in 
a  defence,  it  is  equally  within  the  rule. 
See  also  Nash  v.  Russell,  5  Barb.  556 ; 
Mardis  v.  Tyler,  10  B.  IMon.  382;  Wat- 
kins  V.  Ilalstead,  2  Sandf.  311,  and  page 
308,  ante. 


CH.  I.]  CONSIDERATION.  "ofi^ 

does  not  form  a  valid  consideration  for  a  promise,  unless  the 
moral  duty  were  once  a  legal  one,  may  be  found  in  the  case  of 
a  widow,  who  promises  to  pay  for  money  expended  at  her  re- 
quest or  lent  to  her  during  her  marriage.  It  has  been  held  in 
England,  in  a  case  examined  in  a  former  note,  (j)  that  this 
promise  was  binding,  and  there  are  many  dicta  to  that  effect  in 
this  country  ;  [k)  but  the  current  of  recent  decision  in  England 
is  rather  in  favor  of  the  view  that  the  promise  of  a  married 
woman  has  not,  when  given,  any  legal  force,  and  therefore  is 
not  voidable,  but  void ;  and  cannot  be  ratified  by  a  subsequent 
promise  after  the  coverture  has  ceased,  nor  be  regarded  as  a  suf- 
ficient consideration  for  a  new  promise.  (/)  And  a  late  case  in 
New  York  takes  the  same  ground  very  decidedly,  (m)  It  has, 
however,  been  held  that  the  promise  of  a  widow  to  pay  for 
goods  furnished  during  her  coverture,  on  the  faith  of  her  separate 
estate,  was  binding,  (w) 


SECTION    III, 


ADEQUACY   OF   CONSIDERATION. 

If  the  consideration  be  valuable  it  need  not  be  adequate  ;  that 
is,  the  court  will  not  inquire  into  the  exact  proportion  between 
the  value  of  the  consideration  and  that  of  the  thing  to  be  done 
for  it.  (o)  But  it  must  have  some  real  value ;  and  *if  this  be 
very  small,  this  circumstance  may,  even  by  itself,  and  still  more 
when    connected  with    other   indications,  imply  or   sustain    a 

{j)  Lcc  V.  Muggcridge,  5  Taunt.  47  ;  (n)  Vance  v.  Wells,  8  Ala.  399. 

sec  note  (A)  ante.  (o)  Skeatc  i'.  Beale,  11  Ad.  &.  El.  983  ; 

{k)  Cook  V.  Bradlov,  7  Conn.  .57  ;  Hitchcock  v.  Coker,  6  id.  438,  4.50  ;  IIuli- 
Hatchell  v.  Odom,  2  Dev.  &  Bat.  302  ;  bard  v.  Coolidgc,  1  Met.  84  ;  Whittle  v. 
Ehle  V.  Jiid.'^on,  24  AVcnd.  97 ;  Gccr  c.  Skinner,  23  Verm.  032 ;  Sanliom  v. 
Archer,  2  Barb.  420.  This  was  expressly  French,  2  Fost.  24G  ;  I'liillipps  r.  Bate- 
so  held  in  Franklin  v.  Beatty,  27  Miss,  man,  16  East,  372  ;  Kirwan  r.  Kirwan,  2 
327.  C.  &  M.  623 ;  Cole  ;•.  Trccothick,  9  Ves. 

(/)  Littlefield  v.  Shee,  2  B.  &  Ad.  811  ;  240  ;  Floyer  v.  Shcrard,  Amb.  18  ;  Mac- 
Meyer  V.  Ilaworth,  8  Ad.  &  El.  407;  Ghee  r.  Morgan,  2  Schf.  &  I>cf.  39."),n.  a  ; 
Eastwood  r.  Kenyon,  11  id.  438.  Sec  Low  i\  Barchard,  8  Ves.  133;  Speed  i-. 
also,  Lloyd  r.  Lcc,'l  Str.  94, and  note  (A)  I'hillips,  3  Anst.  732  ;  Harlan  v.  Harlan, 
ante.        '  20  IVnn.  St.  Reps.  303;  Davidson  r.  Lit- 

(m)  Watkins  r.  Halstcad,  2  Sandf.  311.  tie,  22  id.  245. 
And  sec  Waters  v.  Bean,  15  Geo.  358.- 


[383] 


363* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


charge  of  fraud,  (p)  The  courts,  both  in  law  and  in  equity, 
refuse  to  disturb  contracts  on  questions  of  mere  adequacy, 
whether  the  consideration  be  of  benefit  to  the  promisor,  or  of 
injury  to  the  promisee.  Nevertheless,  if  an  agreement  be  un- 
reasonable or  unconscionable,  but  not  in  such  a  way  or  to  such 
a  degree  as  to  imply  fraud,  courts  of  equity  will  not  decree  a 
specific  performance,  (pp)  and  though  courts  of  law  will  not 
declare  the  contract  void,  they  will  give  only  reasonable  dam- 
ages to  the  plaintitF  who  seeks  compensation  for  a  breach  of 
it.  (q)  When  adequacy  of  consideration  becomes  material,  it 
is  a  question  for  the  court,  (r) 

As  the  consideration  must  have  some  value  and  reality,  *the 
assumption  of  a  supposed  danger  or  liability,  which  has  no 
foundation  in  law  or  in  fact,  is  not  a  valuable  or  sufficient  con- 


{p)  Cockell  V.  Taylor,  15  E.  L.  &  E. 
101  ;  Edwards  v.  Burt,  id.  435 ;  Johnson 
V.  Dorscy,  7  Gill,  2G9 ;  Wormack  v. 
Rogers,  9  Georp;.  60 ;  Judge  v.  Wilkins, 
19  Ala.  7G5;  Milnes  v.  Cowley,  8  Price, 
620 ;  Prebble  r.  Boghurt,  1  Swanst.  329  ; 
Mayor,  &c.  of  Bait.  r.  Williams,  6  Maryl. 
235.  Mere  folly  or  weakness  or  want  of 
judgment,  will  not  defeat  a  contract.  This 
"is  well  illustrated  by  the  case  of  James  v. 
Morgan,  1  Lev.  Ill,  1  Keb.  569.  An 
action  was  brought  in  special  assumpsit, 
on  an  agreement  to  pay  for  a  horse  a  bar- 
ley-corn a  nail,  for  every  nail  in  the  horse's 
shoes,  and  double  every  nail,  which  came, 
there  being  thirty-two  nails,  to  five  hun- 
dred quarters  of  barley ;  and  on  a  trial 
before  Jlijde,  J.,  the  jury  under  his  direc- 
tion, gave  the  full  value  of  tlie  horse,  .£8, 
as  damages ;  and  it  is  to  be  collected  that 
the  contract  was  considered  valid  ;  for  tlie 
rejjort  states  that  there  was  afterwards  a 
motion  to  the  court  in  arrest  of  judgment, 
for  a  small  fault  in  the  declaration,  which 
was  overruled,  and  the  plaintiff  had  judg- 
.ment.  Sec  Chitty  on  Gout.  32.  And 
where  in  an  action  of  assumpsit  it  was  al- 
leged that  in  consideration  of  2s.  Gd.  paid, 
and  4/.  17s.  Grl.  to  be  paid,  the  defendant 
promised  to  deliver  two  rye  corns  on  the 
then  next  Monday,  and  double  in  geo- 
metrical progression  every  succeeding 
Monday,  (or  every  other  Monday,) 
for  a  year,  which  would  have  required 
the  delivery  of  more  rye  than  was 
gi'own  in  the  whole  year,  the  court  on  de- 
murrer seemed  to  consider  the  contract 

[384] 


good  ;  and  Poivell,  3.,  said,  that  although 
the  contract  was  a  foolish  one,  yet  it  would 
hold  good  in  law,  and  that  the  defendant 
ought  to  pay  something  for  his  folly ;  but 
no  judgment  was  given,  the  case  being 
compromised.  Thornborow  r.  Whiteacre, 
2  Ld.  Raym.  1164.  See  Chitty  on  Cont.  32. 

{pp)  Osgood  V.  Eranklin,  2  Johns.  Ch. 
R.  23;  Mortlock  v.  BuUer,  10  Ves.  292  ; 
Gasque  i'.  Small,  2  Strob.  Eq.  72. 

(q)  Thus,  where  an  execution  creditor 
proposed  to  discharge  the  execution,  with- 
out putting  it  into  an  officer's  hands,  if  the 
debtor  would  give  his  note  for  the  debt  and 
costs,  and  also  the  sum  which  an  officer 
might  charge  for  collecting  the  execution, 
and  such  note  was  given,  payable  in  oats, 
at  a  ^'cry  low  price  per  bushel ;  the  court 
held,  that  though  the  note  was  not  usurious, 
yet  it  was  unconscionable,  and  they  de- 
ducted the  sum  included  in  the  note  as 
officer's  fees  from  the  amount  of  the  ver- 
dict on  the  note.  Cutler  i-.  How,  8  Mass. 
257.  See  Cutler  r.  Johnson,  id.  266. — 
So,  Avhere  the  defendant  hired  a  cow  .and 
calf  of  the  plaintiff,  and  agreed  to  return 
them  in  one  year,  with  six  dollars  for  the 
use  of  them,  and,  if  not  then  delivered, 
six  dollars  annually  until  delivered,  it  was 
held  that  the  plaintiff'  was  entitled  to  re- 
cover the  value  of  the  cattle,  with  six  dol- 
lars for  the  use  of  them  for  one  year  only, 
and  interest  on  those  sums  from  the  expi- 
ration of  the  year  until  the  cattle  were  de- 
livered.    Baxter  v.  Wales,  12  Mass.  365. 

(/•)  Best,  C.  J.,  in  Homer  v.  Ashford,  3 
Bing.  327. 


CII.  I.] 


COXSIDERATIOX. 


-363 


sideration,  (s)  nor  is  the  performance  of  that  which  the  party 
was  under  a  previous  valid  legal  obligation  to  do  ;  (5,s)  and 
where  one  through  mistake  of  the  law  acknowledges  himself 
under  an  obligation  which  the  law  does  not  impose,  he  is  not 
bound  by  such  promise ;  (t)  although,  in  general,  ignorance  of 
the  law  is  no  excuse  or  defence,  for  if  it  were,  "  a  premium 
would  be  held  out  to  ignorance."  {tt) 


SECTION    IV, 


PREVENTION    OF   LITIGATIOX. 


The  prevention  of  litigation  is  a  valid  and  sufficient  consider- 
ation ;  for  the  law  favors  the  settlement  of  disputes,  (ii)  Thus, 
a  mutual  submission  of  demands  and  claims  to  arbitration  is 
binding  so  far  as  this,  that  the  mutual  promises  are  a  consider- 
ation each  for  the  other,  (r)  But  the  submission  must  be  mu- 
tually binding;  that  is,  ec^ually  obligatory  on  both  parties,  or 
the  consideration  fails.  On  the  same  ground  a  mutual  compro- 
mise is  sustained.  (?/•)     With  the  courts  of  this  country  the 


(»)  Cabot  V.  Ilaskins,  3  Tick.  83. 

(si)  Harris  v.  Watson,  Tcakc,  N.  V.  C. 
72;  Still*!-.  Myritk,  2  Cani]).  317  ;  Cal- 
lafjan  v.  Ilallcft,  1  Caincs,  104;  Willis  r. 
Pcekham,  1  ]iro.  &  B.  jIj;  Collins  v. 
Go<kfr(>y,  1  B.  &  Ad.  950 ;  Swcany  v. 
Hunter,  1  Murphy,  181  ;  Smith  v.  Bar- 
tlioloniew,  1  Met.  27G ;  Crowhurst  r. 
Laverack,  10  E.  L.  &  E.  498 ;  L'Amorcux 
I'.  GouM,  3  Seldcn,  349. 

(<)  Warder  i-.  Tucker,  7  Mass.  449  ; 
Freeman  c  Boynton,  id.  483 ;  IMay  v. 
CoHin,  4  id.  347;  Silvernail  r.  Cole",  12 
Barl).  08") ;  Koss's  E.\'r  v.  M'Lauehlau's 
Adra'r,  7  Oirattan,  86. 

(«)  Bilhic  I'.  Luniley,  2  East,  4G9. 

(i()  Penn  v.  Lord  Baltimore,  1  Ves. 
Sen.  444.  In  this  case  a  bill  was  filed  in 
ehanfery  to  enforce  sjiecific  performance 
of  articles  of  a;ii-eement  under  seal,  entered 
into  for  the  purpose  of  ascertaininjr  and 
settlinj;  the  boundaries  of  two  provinces  of 
America,  and  provitling  for  nnitual  con- 
veyances, &c.  It  was  objected  amonftst 
other  thin^^s,  that  the  agreement  was  mere- 
ly voluntary,  and  that  equity  never  de- 

VOL.  I.  33 


crces  specifically  without  a  consideration. 
Upon  which  the  Chancellor, (Lord  Hard- 
wickc)  obscned,  that  it  was  true  that  the 
court  never  decrees  specifically  without  a 
consideration  ;  but  that  the  agreement  in 
question  was  not  witliout  consideration  ; 
for  though  nothing  valuable  was  given  on 
the  face  of  the  articles  as  a  consideration, 
the  settling  boundaries,  and  jieacc  and 
quiet,  formed  a  mutual  consideration  on 
each  side ;  and  in  all  cases  make  a  con- 
sideration to  support  a  suit  in  chancen.-, 
for  pciformance  of  the  agreement  for  set- 
tling the  boundaries.  Sec  also,  Wiseman 
r.  Hoi)er,  1  Chan.  Kep.  158  ;  Stapilton  r. 
Stapilton,  1  Atk.  3. 

(c)  Hodges  ('.  Saunders,  17  Pick.  470; 
Jones  V.  Boston  Jlill  Corp.  4  id.  507  ; 
Williams  r.  The  C(jmmercial  Exchange 
Co.  29  E.  L.  &  E.  429  ;  Com.  Dig.  Action 
upon  the  Csvso  on  iVssumpsit,  (A.  1,)  (B. 
2.) 

(«•)  Durliam  v.  Wadlington,  2  Strob. 
Eq.  258;  Van  Dyke  v.  Davis,  2  Mich. 
145;  Huge  v.  lioge,  1  Watts,  216.  In 
this  case,  Gibson,  C.  J.,  hi  Id  that  a  com- 

[385] 


364* 


THE   LAW    OF    CONTRACTS. 


[book    II. 


prevention  of  litigation  is  not  only  a  ^sufficient,  but  a  highly 
favored  consideration ;  (x)  and  no  investigation  into  the  char- 
acter or  value  of  the  different  claims  submitted  will  be  entered 
into  for  the  purpose  of  setting  aside  a  compromise,  it  being  suf- 
ficient if  the  parties  entering  into  the  compromise  thought  at 
the  time  that  there  was  a  question  between  them,  (t/) 

So  giving  up  a  suit,  or  any  equivalent  proceedings  instituted 
to  try  a  question  of  which  the  legal  result  is  doubtful,  is  a  good 
consideration  for  a  promise  to  pay  a  sum  of  money  for  an  aban- 
donment thereof,  (z)      And  in  these  eases  inequality  of  consid- 


promise  of  a  doubtful  title  was  binding 
npon  the  parties,  although  ignorant  of  their 
rights,  unless  vitiated  by  fraud  sufficient 
to  avoid  any  other  contract.  In  Cavode 
V.  IVIcKelvcy,  Addison,  56,  where  conflict- 
ing titles  to  lands  were  settled  by  one 
claimant  purciiasing  the  title  of  tlie  other, 
it  was  JieJd  that  the  settlement  was  a  good 
consideration  to  support  such  purchase, 
although  the  title  was  bad.  In  O'Keson 
V.  Barclay,  2  Penn.  531,  an  action  for 
slander  was  compromised  by  the  defend- 
ant agreeing  to  give  the  plaintiff  a  certain 
sum.  Held,  by  tlie  Supreme  Court,  re- 
versing the  judgment  of  the  court  below, 
that  there  was  a  sufficient  consideration 
for  the  promise,  although  the  words  laid 
in  the  declai-ation  were  not  actionable. 

(.r)  See  in  addition  to  eases  in  last  note, 
Zane  v.  Zane,  G  Munf  40G ;  Taylor  v. 
Patrick,  1  Bibb,  1G8  ;  Pisher  v.  May,  2 
id.  448  ;  Truett  v.  Chaplin,  4  Hawks,  178; 
Brown  v.  Sloan,  6  Watts,  321  ;  Stoddard 
V.  Mix,  14  Conn.  12;  Kice  v.  Bixler,  1 
"Watts  &  Serg.  456  ;  BarloM'  v.  Ocean  Ins. 
Co.  4  Met.  270. 

(?/)  Ex  parte  Lucy,  21  E.  L.  &  E.  199  ; 
Mills  V.  Lee,  6  Monr.  91  ;  Moore  r.  Fitz- 
water,  2  Rand.  442  ;  Bcnnet  v.  Paine,  5 
Watts,  259. 

(cr)  In  Longridge  v.  Dorville,  5  B.  & 
Aid.  117,  it  was  held  that  the  giving  up  a 
suit,  instituted  to  try  a  question  respecting 
which  the  law  is  doubtful,  is  a  good  con- 
sideration for  a  promise  to  pay  a  stipulated 
sum  ;  and  therefore  where  a  sliip,  having 
on  board  a  pilot  required  by  law,  ran  foul 
of  another  atsscI,  and  proceedings  were 
instituted  by  the  owners  of  the  latter  to 
compel  the  owners  of  the  former  to  make 
good  tlie  damage,  and  the  former  vessel 
was  detained  until  bail  was  given,  and 
pending  such  proceedings  the  agent  of  the 
owners  of  the  vessel  detained  agreed,  on 

[  386  } 


the  owners  of  the  damaged  vessel  i-enounc- 
ing  all  claims  on  the  other  vessel,  and  on 
their  proving  the  amount  of  the  damage 
done,  to  indemnify  them,  and  to  pay  a 
sti]nilated  sum  by  way  of  damages  ;  it  was 
Jield  that  tlicre  being  contradictory  decis- 
ions as  to  tlie  point  whether  sliip-owners 
were  liable  for  an  injniy  done,  while  their 
ship  was  under  the  control  of  the  pilot 
required  by  law,  there  was  a  sufficient 
consideration  to  sustain  the  promise  made 
by  the  agents  of  the  owners  of  the  detained 
vessel  to  pav  the  stipulated  damages. — 
But  in  Wattci-s  v.  Smith,  2  B.  &  Ad.  889, 
where  this  case  was  relied  upon,  the  case 
was  that  B  &  C  being  jointly  indebted  to 
A,  the  latter  sued  B  alone.  He  remon- 
strated upon  the  hardship  of  the  case,  al- 
luded to  circumstances  which  would  prob- 
ably I'educe  the  plaintiff's  demand  if  he 
gained  a  verdict,  and  proposed  ti  put  an 
end  to  tlie  action  by  paying  part  of  the 
debt,  and  the  costs  of  the  suit.  This  was 
agreed  to,  and  a  receipt  given  for  the  sura 
paid,  which  was  stated  to  be  for  debt  and 
costs  in  that  action.  A  having  afterwards 
sued  C,  it  was  held  that  the  composition 
above  mentioned  did  not  operate  as  a  dis- 
charge of  the  whole  debt,  but  only  to  re- 
lieve B,  and  therefore  it  Avas  no  defence  for 
C.  —  In  Wilkinson  v.  Bycrs,  1  Ad.  &E1. 
106,  the  Court  of  King's  Beneii  held  that 
^vhere  an  action  has  been  comTnenced  for 
an  unliquidated  demand,  payment  by  the 
defendant  of  an  agreed  sum  in  discharge 
of  such  demand  is  a  good  consideration 
for  a  promise  by  the  plaintiff  to  stay  pro- 
ceedings and  pay  his  own  costs.  And, 
per  Littledale,  J.,  even  in  the  case  of  a 
liquidated  demand,  the  same  promise 
made  in  consideration  of  the  payment  of 
such  demand,  may  be  enforced  in  an  ac- 
tion of  assumpsit,  when  the  agreement  has 
been  such  that  the  court  woiild  stay  pro- 


CII.  I.] 


CONSIDERATION. 


*3Go-*366 


eration  does  not  constitute  a  valid  objection  ;  it  is  enough  if 
there  be  an  actual  controversy,  of  which  the  issue  may  fairly  be 
considered  by  both  parties  as  doubtful.  *But  a  promise  to  pay 
money,  in  consideration  that  the  promisee  would  abandon  pro- 
ceedings in  which  the  public  are  interested,  is  not  sustainable, 
because  such  consideration  is  void  on  grounds  of  public 
policy,   a) 


SECTION    V. 

FORBEARANCE. 

An  agreement  to  forbear  for  a  time,  proceedings  at  law  or  in 
equity,  to  enforce  a  well-founded  claim,  is  a  valid  consideration 
for  a  promise,  (b)     But  this  consideration  fails  if  *it  be  shown 


cccdings  if  the  plaintiff  attempted  to  go 
on.  See  Wilbur  v.  Crane,  13  Pick.  284  ; 
Mills  V.  Lee,  6  Monr.  97  ;  Union  Bank  c. 
Geary,  5  Pet.  114;  Iknnet  v.  Paine,  5 
"Watts,  259  ;  Muirhead  r.  Kirkpatrick,  21 
Penn.  St.  Rep:  237  ;  Livingston  v.  Du- 
gan,  20  Missouri,  102  ;  Iley  c.  Moorliouse, 
6  Bing.  N.  C.  52  ;  Strac y  r.  Bank  of  Eng- 
land, 6  Bing.  754  ;  Atke  r.  Backliouse,  3 
JI.  &  W.  648  ;  Kicliardson  r.  Mellish,  2 
Bing.  229  ;  Tliornton  r.  Pairlie,  2  Moore, 
.397,  40*?, '409. 

(«)  In  Cojtpock  r.  Bower,  4  M.  &  W. 
-3Ci,  a  petition  having  l)een  presented  to 
tlie  House  of  Commons  against  the  return 
of  a  member,  on  the  ground  of  bril)ery  ; 
the  petitioner  entered  into  an  agreement, 
in  eonsidenition  of  a  sum  of  money,  and 
upon  other  terms,  to  proeced  no  further 
witli  tiie  petition.  Lord  Abiiu/er  said: 
"  Tlien  the  iiext  (luestion  is,  whether  this 
is  an  \inhiwfnl  agreement ;  and  1  tliink 
tliat  though  it  may  not  be  so  l»y  anj-  stat- 
ute, yet  it  is  unlawful  by  tlie  eonnnon  law. 
Here  was  a  ])etition  jjreseuted  on  a  eliargc 
of  briliery.  Now  this  is  a  j)roeeeding  in- 
stituted not  for  the  benefit  of  the  individ- 
uals, but  of  the  ])uI(Ue  ;  and  tiie  only  in- 
terest in  it  wliich  the  law  recogni/.es  is  tliat 
of  the  public.  I  agree  that  if  the  person 
wlio  [irefers  that  jietition  finds,  in  the  pro- 
gress of  the  inciuiry,  tliat  he  has  no  elianee 
of  success,  he  is  at  lil)erty  to  abandon  it 
at  any  time.  But  I  do  not  agree  that  he 
ma\-  take  money  for  so  doing,  as  a  means 


and  with  the  effect  of  depriving  the  public 
of  the  benefit  which  would  result  from  the 
investigation.  It  seems  to  me  as  unlaw- 
ful to  do  so  as  it  would  be  to  take  money 
to  stop  a  prosecution  for  a  crime.  In 
either  case  the  prosecutor  might  say  that 
he  is  not  bound,  at  his  own  expense,  to 
continue  an  inquiry  in  which  the  public 
alone  arc  interested ;  but  such  a  reason 
does  not  amount  to  iin  excuse,  where  he 
receives  money  for  discontinuing  the  pro- 
ceedings." 

(b)  See  1  Rol.  Abr.  24,  pi.  33  ;  Cora. 
Dig.  Action  upon  the  Case  upon  As- 
sumpsit, (B.  1);  3  Chitty,  Com.  L.  66, 
()7.  —  In  Atkinson  v.  Bayntun,  1  Bing. 
N.  C.  444,  one  M.  being  in  custody  |iur- 
suant  to  a  warrant  of  attorney,  by  which 
lie  had  agreed  that  execution  slwuhl  issue 
from  time  to  time  lor  certain  instalments 
of  a  mortgage  debt,  the  defendant,  in  con- 
sideration that  the  jjlaintitV  would  dis- 
duirge  M.  out  of  custody,  undertook  that 
he  shoidd,  if  necessary,  be  forthcoming  for 
a  second  execution  ;  it  was  /ttl/J,  that  the 
defendant's  contract  was  valid. — As  to 
the  mode  of  declaring  in  such  case,  see 
Willatts  V.  Kennedy,  8  Bing.  5  ;  Moston 
V.  Burn,  7  Ad.  &  Kl.  19.  In  this  country 
the  same  general  jirincijjles  are  recognized. 
Thus,  if  one  promise  to  pay  the  debt  of 
anotiicr,  in  consideration  that  the  creditor 
will  "  forbear  and  give  further  time  for 
tlie  payment "  of  the  debt ;  tiiis  is  a  suffi- 
cient consideration,  though  no  jiarticulur 

[387] 


367* 


THE   LAW    or   CONTRACTS. 


[book  ir. 


that  the  claim  is  wholly  and  certainly  unsustainable  at  law  or 
in  equity  ;  (c)  but  mere  proof  that  it  is  Moubtful  will  not  invali- 


time  of  forbearance  be  stipulated ;  the 
creditor  averring  that  lie  did  thereupon 
forbear,  from  such  a  day  till  such  a  day. 
King  !.'.  Upton,  4  Greenl.  387.  See  also, 
Eltiiig  V.  Vandcrlyn,  4  Johns.  237  ;  Muir- 
head  v.  Kirkpatrick,21  Penn.  St.  Kep.  237. 
—  So  an  agreement  by  a  surety  to  forbear 
a  suit  against  his  principal,  after  he  shuJl 
have  paid  the  debt  of  the  principal,  is  a  good 
consideration  to  support  a  promise,  al- 
though at  the  time  of  the  agreement  the 
surety  had  no  cause  of  action  against  the 
princijial.  Hamaker  v.  Eberley,  2  Binn. 
506.  —  So  a  promise  to  forbear,  for  six 
months,  to  sue  a  third  person,  on  a  just 
cause  of  action,  is  a  valid  and  sufficient 
consideration  for  a  promissory  note.  And 
in  a  suit  on  such  note  by  the  payee  against 
the  maker,  tiie  Ijurden  of  proof  is  not  on 
the  payee,  to  show  that  he  has  forborne 
according  to  his  promise,  but  on  the 
maker,  to  show  that  he  has  not.  Jen- 
nison  r.  Stafford,  1  Cush.  168.  See  also, 
Giles  V.  Acklcs,  9  Barr,  147;  Silvis  )•. 
Elv,  3  W.  &  S.  420 ;  Watson  v.  Randall, 
20' Wend.  201  ;  Ford  v.  Eehman,  Wright, 
434;  Oilman  i\  Kibler,  5  Humph.  19; 
Colgin  V.  Henley,  6  Leigh,  85  ;  Rood  v. 
Jones,  1  Doug.  (Mich.)  188;  Martin  v. 
Black's  Ex'rs,"20  Ala.  309;  McKinley  v. 
Watkins,  13  111.  140. 

(c)  Gould  V.  Armstrong,  2  Hall,  266 ; 
Lowe  r.  Wcathcrley,  4  Dev.  &  Bat.  212  ; 
Jones  V.  Ashl)urnham,  4  East,  455  ; 
Smith  V.  Algar,  1  B.  &  Ad.  604  ;  Martin 
V.  Black's  Ex'rs,  20  Ala.  309;  New 
Hampsliirc  Savings  Bank  v.  Colcord,  15 
N.  H.  119.  The  case  of  Wade  c.  Simeon, 
2  C.  B.  548,  well  illustrates  this  principle. 
In  that  case  the  declaration  stated  that 
the  plaintiff' had  brought  an  action  against 
the  defendant  in  the  Exchequer  to  recover 
certain  moneys  ;  that  the  defendant  plead- 
ed various  jileas,  on  which  issues  in  fact 
had  been  joined,  which  were  about  to  be 
tried  ;  and  that,  in  consideration  that  the 
plaintiff  would  forbear  proceeding  in  that 
action  until  a  certain  day,  the  plaintiff 
promised  on  that  day  to  pay  the  amount, 
but  that  lie  made  default,  &e.  Plea,  that 
the  plaintiff  never  had  any  cause  of  action 
against  tiic  defendant  in  respect  of  the 
subject-matter  of  tlie  action  in  the  Exclie- 
quer,  which  he,  the  plaintiff',  at  the  time 
of  the  commencement  of  tlie  said  action, 
and  thence  until  and  at  the  time  of  the 
making  of  the  promise  well  knew.     To 

[388] 


this  plea  there  was  a  general  demurrer. 
Tindal,  C.  J.,  said:  "  By  demurring  to 
the  plea,  the  plaintiff  admits  that  he  liad 
no  cause  of  action  against  the  defendant 
in  tlic  action  therein  mentioned,  and  that 
he  knew  it.  It  appears  to  me,  therefore, 
that  he  is  estopped  from  saying  tliat  there 
was  any  valid  .consideration  for  the  de- 
fendant's promise.  It  is  almost  contra 
honos  mores,  and  certainly  contrary  to  all 
the  principles  of  natural  justice,  that  a 
man  should  institute  proceedings  against 
another,  when  he  is  conscious  that  he  has 
no  good  cause  of  action.  In  order  to  con- 
stitute a  binding  promise,  the  plaintiff' 
must  show  a  good  consideration,  some- 
thing beneficial  to  the  defendant,  or  detri- 
mental to  the  plaintiff.  Detrimental  to 
the  plaintiff  it  cannot  be  if  he  has  no 
cause  of  action ;  and  beneficial  to  the  de- 
fendant it  cannot  be ;  for  in  contempla- 
tion of  law,  the  defence  upon  such  an  ad- 
mitted state  of  facts  must  be  successful, 
and  the  defendant  will  recover  costs, 
which  must  be  assumed  to  be  a  full  com- 
pensation for  all  the  legal  damage  lie  may. 
sustain.  The  consideration,  therefore, 
altogether  fails.  On  the  part  of  the  plain- 
tiff' it  has  been  urged  that  tlie  cases  cited 
for  the  defendant  were  not  cases  where 
actions  had  already  been  brought,  but  only 
cases  of  promises  to  forbear  commencing 
proceedings.  I  must,  however,  confess 
that,  if  it  were  so,  I  do  not  see  that  it 
would  make  any  substantial  difference. 
The  older  cases,  and  some  of  the  modern 
ones  too,  do  not  afford  any  countenance 
to  that  distinction.  In  Tooley  v.  AVind- 
ham,  Cro.  Eliz.  206,  (more  fully  reported 
2  Leonard,  105,)  it  is  stated  that  the  plain- 
tiff had  purchased  a  writ  out  of  Chancery 
against  the  defendant,  to  the  intent  to  ex- 
hibit a  bill  against  him ;  upon  tlic  return 
of  the  writ,  which  was  for  the  ])rofits  of 
certain  lands,  which  the  father  of  the  dc- 
fenilant  liad  taken  in  his  lifetime,  the 
defendant,  in  consideration  he  would  sur- 
cease his  suit,  promised  to  him  that  if  he 
could  prove  that  his  father  liad  taken  the 
profits,  or  had  possession  of  the  land 
under  the  title  of  the  father  of  the  plain- 
tiff', he  would  pay  him  for  the  profits  of 
the  land ;  and  the  court  held  that  tiie 
promise  was  without  consideration  and 
void.  There  the  suit  was  in  existence  at 
the  time  of  the  making  of  the  jnomise. 
So,  in  Atkinson  v.   Settree,  Willes,  482, 


CII.   I.] 


CONSIDERATION. 


*368 


date  the  consideration,  (d)  Nor  is  it  necessary  that  the  for- 
bearance should  extend  to  an  entire  discharge  ;  any  delay,  which 
is  real  and  not  merely  colorable,  is  enough,  (e)  Nor  is  it  mate- 
rial whether  the  proceedings  to  be  forborne  have  been  com- 
menced or  not.  (/)  Nor  need  the  agreement  to  a  delay  be  for 
a  time  certain ;  for  it  may  be  for  a  reasonable  time,  and  yet  be 
sufficient  consideration  for  a  promise.  {<^-)  But  in  declaring  on 
a  promise  made  on  such  a  consideration,  the  plaititiff  must  al- 
lege and  prove  the  actual  time  of  forbearance,  and  if  this  be 
judged  by  the  court  to  be  reasonable,  the  action  will  be  sus- 
tained; (A)  but  where  the  stay  of  action  is  wholly  uncertain,  or 
such  as  can  be  of  no  benefit  to  the  debtor  or  detriment  to  the 
creditor,  it  is  not  enough,  (i)  And  it  is  not  enough  to  allege  in 
the  declaration  that  disputes  and  controversies  existed  concern- 
ing a  certain  debt,  and  that  the  promise  on  which  the  action  is 
brought  was  made  in  consideration  that  the  plaintiff  promised 
not  to  sue  for  that  debt ;  for  this  is  no  allegation  that  a  debt 
actually  existed,  and  there  must  be  such  an  allegation ;  but 
with  it  there  may  be  an  allegation  of  disputes  and  contro- 
versies concerning  its  amount,  (j)      It  seems  to  be  settled  *that 


an  action  had  licen  commcnccfl  at  the 
time  the  promij^c  was  made.  Tlicse  cases 
seem  to  me  to  cstahlish  the  print  iplc  upon 
which  our  present  jud.irment  rests,  and  I 
am  not  aVarc  that  it  is  at  all  oi)poscd  hy 
Lonffridfre  r.  Dorville."  Sec  also,  Bar- 
ber V.  Fox,  1  Vent.  1.59,  2  Wms.  Saiind. 
134  ;  liandall  v.  Harvey,  I'alm.  394  ;  At- 
kinson V.  Settree,  AViiles,  482 ;  Kinjr  '"• 
Hohbs,  Yelv.  26 ;  Hammond  ?•.  Roll, 
March,  202 ;  Lloyd  v.  Lee,  1  Stra.  94  ; 
(joodwin  V.  Willoughbv,  Latch,  141, 
Poph.  177;  Silvcrnailr.'Colc,  12  Barb. 
C85. 

((/)  Longridjrc  v.  Dorville,  .5  B.  &  Aid. 
117  ;  Zanc  r.  Zane,  6  JIunf.  406;  Blake 
r.  Peek,  11  Venn.  483  ;  Truett  r.  Chap- 
lain, 4  Hawks,  178. 

(r)  Sa^e  V.  Wilcox,  6  Conn.  81.  Hero 
the  (Iday  was  one  year.  Baker  r.  Jacob, 
1  Bulst.  41.  Here  the  delay  was  a.  foii- 
iilijht,  or  thereabouts.  Sec  also,  ante, 
n.  {h). 

(/)  "Wade  V.  Simeon,  antr,  n.  (c)  ; 
Ilaniaker  c.  Ebcrlev,  2  Binn.  .506. 

('/)  Lonsdale  r.  I'.rown,  4  Wash.  C.  C. 
11.  148;   SidwcU  v.  Evans,  1  I'enn.  385; 

33* 


Downing  r.  Funk,  5  Bawle,  69  ;  Hakes  r. 
Hotchkiss,  23  Verm.  2.35.  Sec  also,  ante, 
n.  (h). 

(It)  King  r.  Upton,  4  Grccnl.  387; 
Baniehui-st  v.  Cabbot,  Ilardi-.  5. 

(/)  Jones  V.  Asiibiirnham,  4  East,  455; 
Nelson  v.  Serle,  4  M.  &  W.  795 ;  JJixIer 
V.  Beam,  3  Benn.  282.  Sec  also,  Rix  v. 
Adams,  9  Verm.  233. 

(/)  Edwards  r.  Baugh,  11  JL  &  W. 
64l".  Lord  Ahiiu/cr,  C.  B. ;  "  The  decla- 
ration onl}'  alleges  that  certain  disjmhsand 
controvfrsies  were  pending  between  the 
]>laintiflr  and  the  defendant,  whetlier  the 
defendant  was  indebted  to  the  ]daintiff  in 
a  certain  sum  of  money.  There  is  noth- 
ing in  the  use  of  the  word  'controversy' 
to  render  this  a  good  allegation  of  con- 
sideration. The  controversy  merely  is, 
that  the  ])lainti)f  claims  the  debt,  and  the 
other  denies  it.  The  case  might  have 
been  different,  if  the  declaration  had  said, 
'  Whereas  the  defendant  was  indebted  to 
the  plaintiff  in  divers  sums  of  money,  for 
money  lent,  and  also  on  an  account 
stated,'  that  a  dispute  arose  as  to  the 
amount  of  the  debt  so  due ;  and  in  order 

£289] 


368- 


THE   LAW   OF    CONTRACTS. 


[book  it. 


a  general  agreement  to  forbear  all  suits  is  to  be  construed  as 
a  perpetual  forbearance ;  (/f)  and  a  promise  resting  on  the  con- 
sideration of  such  forbearance  is  no  longer  binding,  when  the 
suit,  which  was  to  be  forborne,  is  commenced. 

It  is  not  material  that  the  party  who  makes  the  promise,  in 
consideration  of  such  forbearance,  should  have  a  direct  interest 
in  the  suit  to  be  forborne,  or  be  directly  benefited  by  the 
delay.  (/)  It  is  enough  that  he  requests  such  forbearance  ;  for 
the  benefit  to  the  defendant  will  be  supposed  to  extend  to  him, 
and  it  would  also  be  enough  to  make  the  consideration  valid, 
that  the  creditor  is  injured  by  the  delay.  But  there  must  have 
been  some  party  who  could  have  been  sued,  (m)  And  in  cases 
in  which  the  person  to  be  forborne  is  not  mentioned,  but  the 
forbearance   may  be   understood  to   be  forbearance  of  wiioever 


to  put  an  end  to  all  controversies  respect- 
ing it,  it  Avas  agreed  that  the  plaintiff,  in 
consideration  of  receiving  £100,  should 
not  sue  the  defendant  in  respect  to  liis 
original  claim.  In  that  case  the  plaintiff 
would  have  heen  bound  to  prove  at  the 
trial  the  existence  of  a  debt  to  some 
amount ;  he  might  not,  indeed,  he  liound 
to  prove  the  full  amount,  but  simply  to 
show  such  a  claim  as  to  lay  a  reasonable 
ground  for  the  defendant's  making  the 
promise  :  whereas,  in  the  present  case,  he 
would  not  have  to  prove  any  thing  beyond 
the  fact  that  there  had  been  a  dispute  be- 
tween himself  and  the  defendant  as  to  the 
existence  of  a  debt.  A  man  may  tin-eaten 
to  bring  an  action  against  any  stranger  he 
may  happen  to  meet  in  the  street.  Where 
an  action  is  depending,  the  forbearing  to 
prosecute  it  is  a  sufficient  consideration  for 
a  promise  to  pay  a  certain  sum  of  money; 
for,  besides  other  advantages,  the  party 
promising  would  save  the  extra  costs 
wliich  he  would  have  to  paj',  even  if  he 
were  successful." 

(/.)  Clark  c.  Eussel,  3  Watts,  213; 
Sidwell  r.  Evans,  1  Penn.  385. 

(/)  Smith  V.  Algar,  1  B.  &  Ad.  G03. 
See  Ennnott  ?-.  Kearns,  5  Bing.  N.  C. 
559.  In  ilaud  r.  Waterliouse,  2  C.  &  P. 
579,  it  was  htld  that  if  a  person,  employed 
by  the  administrator  of  a  deceased  debtor 
to  wind  up  the  concerns  of  the  deceased's 
business,  give  an  undertaking  to  a  creditor 
of  the  deceased,  to  furnish  money  to  meet 
an  acceptance  which  such  creditor  lias 
given,  in  furtherance  of  an  accommoda- 
tion arrangement  for  delaying  payment, 

[390] 


in  the  hope  that  funds  may  be  forthcom- 
ing, he  is  liable  on  sucli  undertaking, 
though  he  Avas  merely  a  clerk,  and  had  no 
interest  in  the  goods  sold  by  the  creditor, 
and  had  not  received  au}^  funds  which  he 
could  apply  to  the  discharge  of  the  debt. 

{m)  Jones  v.  Ashbuniham,  4  East,  455  ; 
Nelson  v.  Serle,  4  M.  &  W.  795.  In  this 
case  to  a  declaration  in  debt  on  a  promis- 
sory note  for  24/.,  dated  3d  January,  1837, 
made  by  the  defendant,  payable  twelve 
months  after  date  to  the  plaintiff,  the  de- 
fendant pleaded  that  one  J.  W.,  before 
and  at  his  death,  was  indebted  to  the 
plaintiff  in  24/.  for  goods  sold,  which 
sum  was  due  to  the  plaintiff  at  the  time  of 
the  making  of  the  promissory  note  in  the 
declaration  mentioned  ;  tlutt  the  plaintiff, 
after  the  death  of  J.  W.,  apjilied  to  the 
defendant  for  payment;  whereupon  in 
compliance  with  his  request,  the  defend- 
ant, after  the  death  of  J.  W.,  for  and  in 
respect  of  the  debt  so  remaining  due  to 
the  plaintiff  as  aforesaid,  and  for  no  other 
consideration  wliatever,  made  and  deliv- 
ered the  note  to  the  plaintiff,  and  that  J. 
W.  died  intestate,  and  that  at  the  time  of 
the  making  and  delivery  of  tlie  note  no 
administration  had  been  granted  of  his 
effects,  nor  was  there  any  executor  or 
executors  of  liis  estate,  nor  any  person 
liable  for  the  debt  so  remaining  due  to  the 
plaintiff  as  aforesaid ;  and  the  defendant 
averred  that  there  never  teas  an;/  considera- 
tion for  the  said  note  except  as  aforesaid. 
Held,  that  the  plea  was  a  good  answer  to 
the  declaration. 


cii.  l] 


COXSIDERATIOX. 


^369 


might  be  sued,  the  promise  *founded  on  such  consideration  is 
binding,  if  there  be  any  person  liable  to  suit,  though  the  de- 
fendant himself  be  not  liable.  («) 

In  general,  a  waiver  of  any  legal  right,  at  the  request  of  ano- 
ther party,  is  a  sufficient  consideration  for  a  promise  ;  (o)  or  of 
any  equitable  right;  (p)  and  so  it  is,  although  it  be  a  waiver  of 
action  for  a  tort,  by  committing  which  the  person  doing  the 
wrong  gained  a  benefit,  although  the  other  party  suffered  from 
it  no  real  injury.  ((/) 

And  a  promise  to  pay  one  if  he  would  prove  a  debt  against 
a  deceased  husband,  (r)  or  to  pay  a  debt  denied  to  be  due,  if 
the  party  creditor  would  swear  to  it,  rests  upon  a  sufficient 
consideration.  And  in  an  action  upon  such  promise,  it  has 
been  held  that  the  defendant  cannot  show  that  the  plaintiff  was 
mistaken  or  swore  falsely,  (s) 

The  incurring  of  a  liability  in  consequence  of  the  promise  of 
another,  is  held  to  be  a  good  consideration  ;  (/)  and  a  sub- 
sisting legal  obligation  to  do  a  thing  is  a  good  consideration 
for  a  promise  to  do  that  thing.  (//) 


(n)  Sec  Jones  v.  A,slil)uriiliam,  4  East, 
455. 

(o)  Stchbins  V.  Smitli,  4  Pick.  97 ; 
Sniitli  V.  Weed,  20  Wend.  184;  Ilaigli  r. 
Brooks,  2  Per.  &  l)av.  477  ;  .3  i<l.  452; 
Farmer  r.  Stewart,  2  New  Ilaiiip.  97 ; 
Nicholson  V.  May,  Wri<;lit,  GC.O  ;  Ilininan 
V.  Moulton,  14  jolins.  4(30;  Williams  r. 
Ale.xander,  4  Ired.  Eq.  ]{.  207  ;  AVater- 
man  «'.  IJarratt,  4  Ilarriii;;.  31 1. 

(/»)  Whitlieck  c.  Wliitbeek,  9  Cow.  200; 
Thorpe  r.  Thorpe,  I  Sulk.  171,  12  Mod. 
455. 

(7)  Davis  )-.  Morgan,  4  B.  &  C.  8; 
Broaley  v.  Andrew,  2  Nov.  &  P.  114,  7 
Ad.  &  El.  108. 

(;•)  Travcr  r. ,  1  Sid.  57. 

(s)  Brooks  )•.  Ball,  18  Jolnis.  .3.37. 

(t)  Underliill  c.  (Jilison,  2  New  llamp. 
352;  Homes  c.  Dana,  12  Mass.  190; 
Bryant  r.  Goodnow,  5  Pick.  228.  See 
also,  Cliapin  r.  Lapliam.  20  id.  407  ; 
Blake  i-.  Cole,  22  id.  97  ;  Ward  r.  Fryer, 


19  Wend.  494.     In  Bailcyvillc  !-.  Lowell, 

20  Maine,  178,  it  Avas  determined  that  an 
ajjreemetu  by  the  owner  of  an  execution 
a;,^ainst  the  inhabitants  of  a  town  that  if 
they  would  at  once  a.sscss  the  amount  rc- 
quireil,  and  collect  the  same,  ho  would 
make  a  certain  discount,  ii?  founded  on 
.sufficient  consideration,  and  will  be  en- 
forced. 

(11)  Cook  V.  Bradley,  7  Conn.  57  ; 
Warner  r.  Boofre,  15  Johns.  233  ;  Jcwett 
)•.  Warren,  12  Mass.  300.  In  Russell  r. 
Buck,  11  Verm.  100,  it  was  held  that  a 
promise  bj-  one  already  legally  liable  for  a 
debt,  in  consideration  of  such  liability  to 
]iay,  if  waited  on  a  certain  time,  creates 
no  new  liability;  and  that  a  ju'omise  to 
l)ay  the  debt  of  anotlier,  if  waited  on  a 
certain  time,  leaving  the  debt  to  l>c  en- 
forced dm-ingthat  time  against  the  debtor, 
is  not  bindiniT-  And  see,  to  the  same 
eHeet,  Deaeoii"  v.  Gridlev,  28  E.  L.  &  E. 
345. 

[391] 


370*-371' 


THE    LAW    OF    CONTRACTS. 


[book  II. 


*SECTION    VI, 


ASSIGNMENT    OP    DEBT. 


An  assignment  of  a  debt  or  a  vight  is  a  good  consideration 
for  a  promise  by  the  assignee,  (v)  Such  assignment  may  not 
be  good  at  law ;  but  it  is  valid  in  equity  ;  and  com-ts  of  law, 
for  many  purposes,  and  to  a  certain  extent,  recognize  the  valid- 
ity of  the  transfer,  if  the  assignee  obtains  a  benefit  which  the 
law  considers  a  sufficient  and  a  proper  consideration  to  found 
a  promise  upon,  (tv)  But  if  the  transaction  amounts  to  main- 
tenance, which  is  illegal,  the  consideration  fails,  and  the  prom- 
ise is  void. 


SECTION    VII. 

WORK   AND    SERVICE. 

Work  and  service  are  a  very  common  consideration  for  a 
promise,  and  always  sufficient,  if  rendered  at  the  request  of  the 
party  promising,  {x)  This  request  may  often  be  implied;  it  is 
so  generally,  from  the  fact  that  the  party  making  the  promise 
accepts  and  holds  the  benefit  resulting  from  the  work  or  ser- 
vice, {y)     And  it  is  an  equally  sufficient  *consideration  for  a 


(r)Locler  v.  Cheslcyn,  1  Sid.  212; 
Moulsdale  v.  Birchall,  2  Wm.  Bl.  820; 
Price  V.  Seaman,  4  B.  &  C.  525,  7  D.  & 
R.  14  ;  Graham  v.  Gracie,  13  Q.  B.  54?; 
Whittle  r.  Sldnner,  23  Verm.  532 ;  Har- 
rison V.  Knight,  7  Texas,  47  ;  Edson  i\ 
Fuller,  .e  Foster,  185. 

(iv)  Trice  v.  Seaman,  4  B.  &  0.  525,  7 
D.  &  11.  14,  10  Moore,  34,  2  Bint;-.  437  ; 
Peatc  ?'.  Dicken,  1  C.  M.  &  II.  430,  5 
Tyr.  116.  And  an  assignment  of  a  chose 
in  action  need  not  be  by  deed.  Howell  v. 
Mclvers,  4  T.  11.  GOO  ;  Health  v.  Hall,  4 
Taunt.  326. 

(x)  Hunt  V.  Bate,  Dver,  272,  and  notes ; 
1  llol.  Abr.  11,  pi.  2,"  3.  In  Taylor  v. 
Jones,  1  Ld.  Raym.  312,  it  was  held  that 

[  392  ] 


giving  a  soldier  leave  of  absence  _at  the 
instance  of  a  third  person  is  a  good  con- 
sideration for  a  promise  from  liim  to  the 
captain  to  bring  him  back  iu  ten  days,  or 
pay  a  sum  of  money. 

(y)  1  Wms.  Saund.  264,  note  (1); 
Tipper  v.  Bieknell,  3  Bing.  N.  C.  710. 
In  that  case  the  declaration  stated  that 
defendants  being  in  possession  of  certain 
mortgage  deeds,  of  which  H.  R.  was  de- 
sirous to  olitain  an  assignment  by  the  pay- 
ment of  £500,  the  plaintiff  consented  at 
H.  R.'s  request  to  accept  bills  to  that 
amount  drawn  by  H.  R.,  upon  H.  R.'s 
procuring  the  defendants  to  deliver  the 
mortgage  deeds  to  the  plaintiff  as  security; 
that  the  defendants,  in  consideration  of  the 


CII.   I.] 


CONSIDERATION. 


-371 


promise,  if  the  work  or  service  be  rendered  to  a  third  party  at 
the  request  of  the  promisor  ;  (z)  and  such  request  will  be  often 
implied  from  very  slight  circumstances  ;  as  in  the  case  of  cloth- 
ing supplied  to  a  child,  the  mere  knowledge  and  silence  of  the 
father  are  enough,  (a) 

If  the  work  and  service  rendered  are  merely  gratuitous,  per- 
formed for  the  defendant  without  his  request  or  privity,  however 
meritorious  or  beneficial  it  may  be,  it  affords  no  cause  of  ac- 
tion, (b)  and  perhaps  no  consideration  for  a  subsequent  promise, 
although,  as  we  have  seen,  a  precedent  request  may  in  law  be 
presumed  from  tVie  promisor's  acceptance  of  the  service.  So  if 
a  workman  employed  and  directed  to  do  a  particular  thing 
choose  to  do  some  other  thing,  without  the  direction  or  assent 
of  the  employer,  the  implied  promise  of  the  employer  to  pay  for 
his  labor  will  not  extend  to  the  new  work ;  (c)  but  being  ac- 
cepted by  the  employer,  it  would  be  a  sufficient  consideration 
for  a  promise  to  pay  for  it,  and  such  acceptance  might  imply 
such  promise. 


plaintiff  .accepting  the  bills,  undertook  to 
deliver  the  deeds  to  him  upon  his  paying 
them  the  amount  of  the  hills.  llil</,  a 
sufficient  consideration  for  the  defendant's 
promise.  And  see  Lewis  v.  Triekev,  20 
Bar!).  .387. 

(r)  Sec  cases  cited  supra,  n.  (.r). 

(n)  Law  V.  Wilkin,  G  Ad.  &  El.  718; 
Nichole  v.  Allen,  3  C.  &  P.  3G.  See,  how- 
ever, Mortiinore  v.  Wriglit,  G  M.  &  W. 
48.'),  where  Lord  Ahinger  denies  these 
cases  to  he  sound  law.  It  is  a  (juestion 
for  tlie  jury  whether  the  circumstances 
are  sulKcicnt  in  luiy  ]>articular  case. 
Baker  )•.  Keen,  2  Stark.  .'JOl.  Sec  fur- 
ther, as  to  tliis  i)oiiit,  anle,  p.  247,  n.  (n), 
el  SI')/. 

(I>)  Hunt  V.  Bate,  Dj-cr,  272,  a  ;  1  Bol. 
Alir.  11,  pi.  1  ;  Hayes  v.  Warren,  2  Str. 
9.3.'? ;  Koscorla  v.  Thomas,  ,3  Q.  B.  II.  2;54; 
.Jeremy  v.  (ioochman,  Cro.  Eli/,.  442  ; 
Dogget  V.  Vowell,  Moore,  G43  ;  Hines  v. 
Butler,  3  Ired.  Ei\.  307.  See  also,  ante, 
p.  358,  n.  (/().  —  So  in  Frear  v.  Harden- 
hergh,  5  Johns.  273,  where  A  entered  on 
huid  i)elonging  to  B,  and  without  his 
knowledge  or  authority  cleared  it,  made 
imjuovements,  and  erected  buildings,  and 
B  afterwards  promised  to  pay  him  for  the 


improvements  he  had  made,  it  was  held, 
that,  the  work  having  been  done,  and  the 
improvements  made  without  the  request 
of  B,  the  promise  was  a  itudKin  partiim,  on 
which  no  action  could  be  maintained. — 
But  jierhaps  the  strongest  case  to  be  found 
in  the  American  reports,  in  illustration  of 
this  principle,  is  that  of  Bartholomew  v. 
Jackson,  20  Johns.  28.  A  owned  a  wheat 
stubi)le-ticld,  in  which  B  had  a  stack  of 
wheat,  which  he  had  promised  to  remove 
in  due  season  for  ]nvparing  the  ground  for 
a  fall  crop.  The  time  for  its  removal  hav- 
ing arrived,  A  sent  a  message  to  B,  re- 
questing the  immediate  removal  of  the 
stack  of  wheat,  as  he  wished,  on  the  next 
day,  to  burn  the  stubble  on  the  field.  B 
having  agreed  to  remove  the  stack  by  ten 
o'clock  the  next  morning,  A  waited  till 
,  that  time,  and  then  set  tire  to  the  stubble 
in  a  remote  ]iart  of  the  field.  The  fire 
s])reading  rapidly,  and  B  not  appearing 
to  remove  the  stack,  A  removed  it  tor  him. 
Jfild,  that  as  A  ])erformed  the  service 
without  the  privity  or  reipiest  of  B,  he  was 
not  entitled  to  recover  for  ir. 

(r)  llort  r.  Nortcm,  1  ISIcCord,  22.   Sec 
also,  Phetteplace  v.  Steere,  2  Johns.  442. 

[393] 


372* 


THE   LAAV   OF   CONTRACTS. 


[book  II. 


*SECTION    VIII. 


TRUST  a:nd  confidence. 


Trust  and  confidence  in  another  often  form  a  sufficient  con- 
sideration to  hold  that  other  to  his  undertaking.  As  if  one 
intrusts  money,  goods,  or  property  of  any  kind,  to  any  person, 
on  the  faith  of  that  person's  promise  to  act  in  a  certain  way  in 
reference  to  those  goods,  or  that  money  or  property,  such  per- 
son, having  accepted  the  trust,  will  be  held  to  his  promise,  be- 
cause the  trust  is  itself  a  sufficient  consideration  for  a  promise 
to  discharge  and  execute  the  trust  faithfully,  {d)  For  if  a  person 
makes  a  mere  gratuitous  promise,  and  then  enters  upon  the  per- 
formance of  it,  he  is  held  to  a  full  execution  of  all  he  has  under- 


(d)  Doctor  &  Stud.  Dial.  2,  c.  2-t ; 
Holt,  C.  J.,  in  Coggs  v.  Bernard,  2  Ld. 
Kaym.  919.  Thus,  where  a  coffee-house 
keeper  accepted  a  large  sum  of  money 
from  the  plaintiff,  and  promised  to  take 
proper  care  of  it  for  a  certain  period,  it 
was  holden  that  an  action  would  lie  on 
this  promise  for  gi'oss  neglect  and  want  of 
caution,  wliereby  the  money  was  lost. 
Doorman  ?,'.  Jenkins,  2  Ad.  &  El.  256. 
So  where  the  plaintiff  delivered  the  sum 
of  £700  to  the  defendant,  to  be  laid  out  by 
him  in  the  purchase  of  an  annuity,  and  the 
defendant  promised  to  get  the  annuity 
icell  and  properhj  secured,  but  was  guilty  of 
gross  neglect  and  want  of  care,  whereby 
both  the  money  and  the  annuity  were  lost, 
it  was  holden  that  the  plaintiff  was  enti- 
tled to  maintain  an  action  against  the  de- 
fendant, to  recover  compensation  for  the 
injury  lie  had  sustained,  although  the  de- 
fendant was  to  receive  no  reward  for  his 
services.  Whitehead  v.  Greetham,  10 
Moore,  182,  2  Bing.  464,  McClel.  &  Y. 
205.  In  the  absence  of  an  express  under- 
taking to  procure  good  security,  the  party 
would  only  be  bound  to  use  reasonable 
care  and  caution.  Dartnall  v.  Howard,  6 
D.  &  K.  44.3,  4  B.  &  C.  345.  In  Shilli- 
beer  v.  Glyn,  2  M.  &  W.  14.3,  the  declara- 
tion stated  that  the  plaintiff  Ijcing  about 
to  proceed  to  Northam])ton,  paid  money 
to  the  defendants  in  London,  that  they 
might  cause  it  to  be  paid  to  liiin  at  North- 

[394] 


ampton  on  a  certain  day  ;  that  the  defend- 
ants received  the  money  for  that  purpose 
from  the  plaintiff',  and  that  thereupon  af- 
terwards, in  consideration  of  the  premises, 
the  defendants  promised  to  cause  the 
money  to  be  paid  to  the  plaintiff  at  North- 
ampton. The  court  were  inclined  to  hold 
that  the  declaration  disclosed  a  sufficient 
consideration.  See  also,  the  case  of 
Wheatley  v.  Law,  Cro.  Jac.  608,  where  a 
similar  declaration  was  held  good,  if  the 
case  is  correctly  reported.  Where  the  de- 
fendant I'eceived  certain  notes  from  the 
plaintiff  to  collect  or  return,  it  was  'held 
that  the  delivery  of  the  notes  constituted 
a  consideration  for  the  defendant's  agree- 
ment, and  that  if  he  neglected  to  use  ordi- 
nai'y  diligence  in  endeavoring  to  collect 
them,  he  was  liable  therefor  to  the  plain- 
tiff. Robinson  v.  Threadgill,  13  Ire.  L. 
39.  '  And  where  the  plaintiff  intrusted 
"divers  boilers  of  great  value"  to  the  de- 
fendant, to  be  weighed,  and  the  defendant 
promised  to  return  them  in  the  same  state 
and  condition  that  they  were  in  at  the 
time  he  received  them,  but  sent  them  back 
in  detached  pieces  and  unfit  for  use,  it  was 
holden  that  the  plaintiff  was  entitled  to 
maintain  an  action  on  the  promise,  to  re- 
cover compensation  for  the  injury  he  had 
sustained.  Bainbridge  v.  Firmston,  1  P. 
&  D.  3  ;  and  see  Smith's  Leading  Cases, 
vol.  i.  p.  96,  ed.  1841. 


en.  T.] 


CONSIDERATION. 


*373 


\ 


taken.  Questions  involving  this  principle  seldom  arise  except 
in  the  case  of  baihnents,  and  will  be  considered  hereafter  when 
we  treat  of  that  subject.  Here  we  will  say  only,  that,  in  gen- 
eral, an  agent  *\vithout  remuneration  cannot  be  required  to  un- 
dertake an  employment  or  trust,  or  held  liable  for  not  doing  so ; 
but  if  he  undertake  and  begin  it,  he  is  liable  for  the  conse- 
quences of  neglect  or  omission  in  completing  his  work. 


SECTION    IX. 


A   PROMISE   FOR   A   PROMISE. 

A  promise  is  a  good  consideration  for  a  promise,  (e)  And  it 
is  so  previous  to  performance  and  without  performance.  As  if 
one  promises  to  become  partner  in  a  firm,  and  another  promises 
to  receive  him  into  the  firm,  both  of  these  promises  are  binding, 
each  being  a  sufficient  consideration  for  the  other.  (/)  If  one 
promises  to  teach  a  certain  trade,  this  is  a  consideration  for  a 
promise  to  remain  with  the  party  a  certain  term  of  time  to 
learn,  and  serve  him  during  that  time  ;  but,  without  such  prom- 
ise 1o  teach,  the  promise  to  remain  and  serve,  though  it  be 
made  in  expectation  of  instruction,  is  void,  {g)     The  reason  of 


(e)  Nichols  r.  Raynbreil,  llob.  88; 
Ilchden  v.  Kiittcr,  l'Si<l.  180;  Strang- 
l)on)ii;,'-li  ''•  Warner,  4  liCou.  .3;  Gowcr  c. 
Cajiiii-T,  Cro.  Kl.  543  ;  Purler,  3.,  in  Went- 
worth  V.  IJullon,  9  B.  &  C.  840 ;  Cart- 
wri-rlit  V.  C:ook,  3  B.  &  Ad.  703  ;  ISIiller 
)'.  Drake,  1  Caincs,  45  ;  Kicc  i-.  iSims, 
8  Kiuli.  Law.  416  ;  Garret  v.  Malonc,  id. 
335;  James  v.  Fiilcrod,  5  Tex.  512; 
Dockray  v.  Dnnn,  .37  Me.  442  ;  Tlic  New 
York  and  New  Haven  ]\ailroad  Co.  v. 
I'ixley,  19  Barh.  428;  Kiester  r.  ISIiller, 
25  I'enn.  St.  Uep.  481.  So  in  White  v. 
Deinilt,  2  Il.ali,  405,  it  was  held  that  in  an 
aetion  for  the  breach  of  the  defendant's 
contract  to  sell  and  deliver  certain  goods 
to  the  plaintiff,  i\\c  prmnisn  of  the  latter  to 
accept  the  goods  and  /«»»/  for  them  is  a 
good  consideration  for  the  defendant's 
])roinisc  to  df.lirer  them.  So  in  Howe  r. 
O'Mally,  1  Miirjdi.  287,  A  conveyed  to  B 
a    tract   of    land,    containing    221    acres, 


more  or  le.«s.  Some  years  afterwards  it 
was  mutually  agreed  to  have  the  land  sur- 
veyed, and  if  it  were  found  to  contain 
more  than  221  acres,  the  defendant  should 
pay  the  ])laintitf  ten  dollars  i)er  acre  for 
the  excess  ;  if  it  fell  sliort,  the  plaintiff  to 
refund  to  the  defendant  at  the  same  rate. 
Here  are  mutual  promises,  and  one  is  a 
good  consideration  to  siip])ort  the  other. 

(  f)  McNeill  V.  Keed,2  Moore  &  Scott, 
89,  "S.  C.  9  Bing.  08. 

(//)  Thus  wliere  the  defendant  had 
signed  a  written  agreement  to  the  follow- 
ing effect :  "  I  hereby  agree  to  remain 
with  Mrs.  Lees,  of  302  Regent  Street, 
Portland  Place,  for  two  years  from  the 
date  hereof,  for  the  j)urpose  of  learning 
the  business  of  a  dressmaker,  &.c.  As 
witness  my  hand,  this  5th  day  of  June, 
1826,"  it  was  held,  that  as  the  agreement 
was  all  on  one  side,  nothing  being  con- 
tracted to  be  done  or  jierfurmed  bv  Mrs. 

[o'J.3] 


J74^ 


THE   LAW   OF   CONTRACTS. 


[book   II. 


this  is,  that  a  promise  is  not  a  *good  consideration  for  a  promise 
unless  there  is  an  absolute  mutuality  of  engagement,  so  that 
each  party  has  the  right  at  once  to  hold  the  other  to  a  positive 
agreement,  (h) 


Lees  as  a  consideration  or  inducement  for 
the  defendant's  remaining  two  years  in  her 
service,  it  was  a  nudum  pactum  ;  and  that 
no  action,  consc([uently,  could  be  brought 
upon  it  against  the  defendant  for  leaving 
her  mistress,  and  commencing  business  on 
her  own  account  before  tlie  expiration  of 
the  two  years.  Lees  v.  Whitcomb,  2  M. 
&  P.  86,  5  Bing.  34.  So,  where  the  writ- 
ten agreement  was  in  the  following  terms  : 
"  Memorandum  of  an  agreement  made  the 
17th  of  August,  1833,  by  which  I,  Wil- 
liam Bradley  of  Sheffield,  do  agree  that  I 
will  work  for  and  with  John  Sykes,  of 
Sheffield  aforesaid,  manufacturer  of  jiow- 
der-tiasks  and  other  articles,  at  and  in 
such  work  as  he  shall  order  and  direct, 
and  no  other  person  whatsoever,  from  this 
day  henceforth,  during  and  until  the  ex- 
piration of  twelve  months,  and  so  on  from 
twelve  months'  end  to  twelve  months'  end, 
until  I  shall  give  the  said  John  Sykes 
twelve  months'  notice  in  writing  that  I 
shall  quit  his  service,"  it  was  held,  that  as 
this  engagement  was  entirely  unilatei'al, 
and  nothing  was  to  be  given  or  done  by 
John  Sykes  as  a  consideration  for  Brad- 
ley's jn'oniise  to  work  for  lum  by  the  year, 
and  no  one  else,  the  agreement  was  a 
nudum  pactum,  and  could  not  be  enforced. 
Sykes  v.  DLxon,  9  Ad.  &  El.  693,  1  P.  & 

D.  463.  See  also,  Bates  v.  Cort,  3  D.  & 
K.  676.  So  where  the  defendant  signed 
the   following   instrument :    "  Mr.   James 

,  as  you  have  a  claim  on  my  brother 

for  £5  I7s.  9(/.  for  boots  and  shoes,  1  here- 
by undertake  to  pay  the  amount  within 
six  weeks  from  this  date,  14th  January, 
1833,"  it  was  held,  that  the  promise  being 
without  consideration,  was  a  nudum  pac- 
tum, and  gave  no  cause  of  action.  James 
V.  Williams,  5  B.  &  Ad.  1109. 

{h)  Mclvinley  v.  Watkins,  13  111.  140; 
Lester  r.  Jewctt,  12  Barb.  502  ;  Nichols  v. 
Ravnbred,  Hob.  88 ;  Kingston  v.  Phelps, 
Peake,  227  ;  Biddell  v.  Dowse,  6  B.  &  C. 
255  ;  Hopkins  v.  Logan,  5  M.  &  W.  241  ; 
Burton  v.  Great  Northern  Hallway  Co.,  25 

E.  L.  &  E.  478 ;  Dorscy  r.  llockwood, 
12  Howard,  126.  This  necessity  for  the 
mutuality  of  the  obligation,  in  order  to 
render  either  party  bound,  is  well  illustrated 
by  the  later  case  of  the  Governor,  &c.  of 

[39G] 


Co])pcr  Min(ji-s  v.  Fox,  3  E.  L.  &  E.  420, 
20  Law  Journ.  174.     In  tliat  case  a  cor- 
.  poration  brought  an  action  on  an  execu- 
tory contract,  seeking  to  recover  damages 
for  its  non-i^erforraance.     The  declaration 
stated  tliat  in  consideration  that  the  plain- 
tiffs would  sell  to  the  defendants  iron  rails, 
the  defendants  agreed  to  furnish   to   the 
plaintiffs  sections    of  the   said   railways, 
averring  mutual  promises  and  alleging  as 
a  breacli  the  non-delivery  of  tlie  sections 
by  the  defendants.     It  appeared  that  the 
jilaintiffs  were  incorporated  by  a  charter, 
for  the  purpose  of  carrying  on  the  busi- 
ness of  copper  miners,  and  that  the  con- 
tract in  question,  which  was   not   under 
seal,  had  l)een  made  by  an  agent  on  be- 
half of  the  plaintiffs  with  the  defendants. 
Held,  that  the  action  could  not  be  niain- 
tiuned  by  the  corporation,  as  the  contract 
Avas  not  under  seal,  and  did  not  fall  within 
any  of  the  exceptions  to  the  general  rule, 
that  a  corporation  can  only  bind  itself  by 
deed  ;  that  the  contract  was  not  incidental 
or  ancillary  to  carrying  on  the  business  of 
cojjper   miners,   and    was    therefore   not 
binding  on  the  corpoi'ation  ;  that  no  otlier 
charter   authorizing  the  company  to  deal 
in  iron  could  be  presumed  to  exist,  the 
charter  which  was  given  in  evidence  not 
supporting  such  an  authority ;  and  that, 
as  the  corporation  could  not  be  sued  upon 
this  contract,  and  as  the  alleged  promise 
by  them  tbrmed  the  consideration  for  tlic 
defendants'  promise,  the  corporation  could 
not  sue  ujion  the  contract.     And  scmble, 
that   the  doctrine   cannot   be   supported, 
that  a  corporation  may  sue  as   plaintiff 
upon  a  simple  contract,  upon  the  ground 
that  by  so  doing  they  arc  estopped  from 
objecting  that  the  contract  was  not  l)ind- 
ing  upon  them.     At  all  events  such  an 
estoppel  could  only  support  an  action  of 
covenant,  as  upon  a  contract  under  seal. 
See  also   editor's   note   on   p.   426,   and 
Papie  r.  New  South  Wales  Co.,  28  E.  L. 
&  ii.  579.  —  If,  however,  a  contract  like 
the  above,  although  not  originally  binding 
upon  one  party,  by  reason  of  some  defect 
or  informality  in  the  execution,  or  for  any 
other  cause,  and  therefore  not  orir/inalljj 
binding  upon  tlie  other  juirty,  nevertheless 
be  executed  by  the   party  not   originally 


CII.  I.] 


CONSIDERATION. 


375 


This  has  been  doubted,  from  the  seeming  want  of  mutuality 
in  many  cases  of  contract.  As  where  one  promises  to  see  an- 
other paid,  if  he  will  sell  goods  to  a  third  person  ;  or  promises  to 
give  a  certain  sum  if  another  will  deliver  up  certain  documents 
or  securities,  or  if  he  will  forbear  a  demand  or  suspend  legal 
proceedings  or  the  like,  (i)  Here  it  is  said  that  the  party  mak- 
ing the  promise  is  bound,  while  the  other  party  is  at  liberty  to 
do  any  thing  or  nothing.  But  this  is  a  mistake.  The  party 
making  the  promise  is  bound  to  nothing  until  the  promisee 
within  a  reasonable  time  engages  to  do,  or  else  does  or  begins 
to  do,  the  thing  which  is  the  condition  of  the  first  promise. 
Until  such  engagement  or  such  doing,  the  promisor  may  with- 


liablc,  the  otlier  party  cannot  refuse  per- 
fbrnianee  on  the  frronnfl  that  tlic  contract 
was  not  originally  binding.  Fishmonger's 
Company  v.  Roljcrtson,  5  M.  &  Gr.  131. 
In  like  manner  in  Phelps  r.  Towiiscnrl,  8 
Pick.  392,  (1829,)  where  the  defendant, 
by  an  agreement  signed  only  by  himself, 
had  placed  ills  son  as  an  apprentice  to  the 
plaintiffs  to  leani  tiic  art  of  printing, 
therein  promising  that  his  son  slionld  stay 
with  them  until  he  was  twenty-one,  &c. ; 
wliich  the  son  failed  to  perform.  (.)n  the 
trial  the  defendant  objected  that  the  eon- 
tract  Avas  void  for  want  of  mutuality,  it 
not  being  signed  by  the  plaintiffs,  .and 
that  there  was  no  obligation  on  the  plain- 
tiffs to  do  any  thing  which  might  form  a 
consideration  for  the  defendant's  promise. 
lUit  the  court  said,  "  that  the  arrc/itancenf 
the  contract  hi/  the  plaintij/'s,  and  the  execu- 
tion of  it  in  jiart  l»/  receiving]  the  apprentice, 
rreattd  an  ohliijation  on  their  jiart  to  main- 
tain and  iiistnict  the  defendant's  son."  See 
also  Commercial  Bank  v.  Nolan,  7  IIow. 
(Miss.)  50S. 

(/)  In  Kennaway  r.  Treleavan,  5  M.  & 
W.  ."JOl,  Parke,  IJaron,  is  reported  to  have 
said,  (wliile  discussing  the  sufficiency  of 
the  consideration  for  a  guaranty  which  was 
in  these  terms  :  "  Truro,  July'l2th,  1838. 
^fessrs.  Kennaway  &  Co.  (Jentlemen  — 
I  herel)y  guarantee  t<j  you,  Messrs.  Ken- 
naway &  Co.,  the  sum  of  .£230,  in  case 
Mr.  Paddon,  of,  &e.,  should  default  in  his 
ca|)acity  of  agent  and  traveller  to  you. 
William  S.  Treleavan.")  "There  is  a 
ca.sc  in  the  books,  of  Newbury  v.  Ann- 
strong,  6  Ring.  201,  which  strongly  re- 
sembles the  present.  There  the  guarantee 
was  in  these  terms  :  '  I  agree  to  be  security 
to  you  for  T.  C.  for  whatever,  while  in 

VOL.    I.  34 


your  employ,  you  may  trust  him  with, 
and  in  case  of  defiiult  to  make  the  same 
good ; '  and  the  contract  was  held  to  be 
good,  on  the  ground  that  the  future  em- 
ployment of  the  party  M-as  a  sufficient  con- 
sideration. It  is  said,  and  truly,  that  in 
the  present  case  there  was  no  l)inding  con- 
tract on  the  plaintiffs,  and  that,  notwith- 
standing the  guarantee,  they  were  not 
bound  to  employ  Paddon.  But  a  great 
number  of  the  cases  are  of  contracts  not 
binding  on  both  sides  at  the  time  wlieu 
made,  and  in  which  the  whole  duty  to  be 
performed  rests  with  one  of  the  contract- 
ing parties.  A  guarantee  falls  under  that 
class,  when  a  person  says,  'In  case  you 
choose  to  employ  this  man  as  your  agent 
for  a  week,  I  will  be  responsible  for  all 
such  sums  as  he  shall  receive  during  that 
time,  and  neglect  to  ]iay  over  to  you,'  tlie 
party  indemnified  is  not  therefore  bound 
to  employ  the  person  designated  by  the 
guarantee  ;  but  if  he  do  em))loy  him,  then 
the  guarantee  attaches  and  becomes  bind- 
ing on  the  party  who  gave  it.  It  is  there- 
fore no  objection  in  the  present  case  to  say 
that  the  jdaintiffs  were  not  obligv'd  to  take 
Paddon  into  their  service  ;  they  might  do 
so  or  not,  as  they  j)Ieascd  ;  but  having 
once  done  so,  the  guarantee  attaclics,  and 
the  defendant  becomes  responsible  for  the 
default."  See  also,  Yard  r.  Eland,  1  Ld. 
Baym.  3G8  ;  Caballcro  v.  Slater,  2.5  E.  L. 
&  E.  28.")  ;  L'Amoreux  v.  Gould,  3  Seldcn, 
349.  The  binding  obligation  of  contracts 
or  promises  to  do  something,  provided,  or 
on  condition,  or  when  the  other  party  shall 
do  some  other  thing,  is  also  recognized  in 
Mozlev  r.  Tinkler,  1  Cr.  Mecs.  &  Ros. 
G92. 


[397] 


376*  THE    LAW   OF    CONTRACTS.  [bOOK  II. 

draw  his  promise,  because  there  is  no  mutuality,  and  therefore 
no  consideration  for  it.  But  after  an  engagement  on  the  part 
of  the  promisee  which  is  sufficient  to  bind  him,  then  the  prom- 
isor is  *bound  also,  because  there  is  now  a  promise  for  a  prom- 
ise, with  entire  mutuality  of  obligation.  So,  if  the  promisee 
begins  to  do  the  thing,  in  a  way  which  binds  him  to  complete 
it,  here  also  is  a  mutuality  of  obligation.  But  if  without  any 
promise  whatever,  the  promisee  does  the  thing  required,  then  the 
promisor  is  bound  on  another  ground.  The  thing  done  is  itself 
a  sufficient  and  a  completed  consideration  ;  and  the  original 
promise  to  do  something,  if  the  other  party  would  do  some- 
thing, is  a  continuing  promise  until  that  other  party  does  the 
thing  required  of  him. 

A  very  large  proportion  of  our  most  common  contracts  rests 
upon  this  principle.  Thus,  in  the  contract  of  sale,  the  proposed 
buyer  says,  I  will  give  you  so  much  for  these  goods  ;  and  he 
may  withdraw  this  offer  before  it  is  accepted,  and  if  his  with- 
drawal reaches  the  seller  before  the  seller  has  accepted,  the  ob- 
ligation of  the  buyer  is  extinguished  ;  but  if  not  withdrawn,  it 
remains  as  a  continuing  offer  for  a  reasonable  time,  and,  if  ac- 
cepted within  this  time,  both  parties  are  now  bound  as  by  a 
promise  for  a  promise ;  there  is  an  entire  mutuality  of  obliga- 
tion. The  buyer  may  tender  the  price  and  demand  the  goods, 
and  the  seller  may  tender  the  goods  and  demand  the  price,  (j) 
This  subject,  however,  belongs  rather  to  the  topic  "  Assent." 

A  written  agreement  to  submit  disputes  and  claims  to  arbi- 
tration must  be  signed  by  all  parties,  or  it  is  obligatory  upon 
none.  For  no  party  can  hold  another  to  the  award,  without 
showing  that  he  himself  would  have  been  equally  bound  by 
it{k)  ^ 

It  should  be  added  that  the  common  law  makes  an  exception 
to  this  requirement  of  nmtuality,  in  the  case  of  contracts  be- 
tween infants  and  persons  of  full  age  ;  following  in  this  respect 

{j)  Thus,  in  Wliite  v.  Demilt,  2  Hall,  for  the  goods  was  a  good  consideration  for 

405,  the  plaintiff  brought  an  action  for  the  the  defendant's  promise  to  deliver  them, 

non-delivery  of  certain  goods  sold  him  by  See  also,  Babcock  r.  Wilson,  17  Maine, 

the  defendant.     One   ground  of  defence  372;  Appleton  v.  Chase,  19  Maine,  74. 
was  want  of  consideration  for  the  defend-         (/.)  Kingston   v.  Phelps,  Peake,   227  ; 

ant's  promise.     But   the   court   said   the  Biddell  r.  Dowse,  6  B.  &  C.  255,  9  D.  & 

promise  of  the  plaintiff  to  accept  and  pay  R.  404;  Antram  v.  Chace,  15  East,  212. 

[398  ] 


CH.  l] 


CONSIDERATION. 


»377 


the  civil  law,  and  the  law  prevailing  on  the  continent  of  Europe. 
The  infant  is  not  bovmd,  while  the  adult  is  ;  the  infant  may 
avoid  his  contract,  but  the  adult  cannot,  (l)  This  rule  has  been 
applied  to  the  contract  of  future  marriage,  as  well  as  to  other 
contracts.  Where  a  man  of  full  age  enters  into  such  contract 
with  a  woman  who  is  a  minor,  if  he  breaks  the  contract  she  has 
her  remedy  by  action,  (w)  If  she  breaks  it  he  has  no  action. 
But  a  woman  under  age  may  perhaps  be  bound  by  a  marriage 
contract  properly  securing  her  interests,  and  deliberately  entered 
into,  with  the  approbation  of  her  parents  or  guardians,  (n) 


♦SECTION    X. 

SUBSCRIPTION   AND    CONTRIBUTION-  ' 

Where  several  promise  to  contribute  to  a  common  object, 
desired  by  all,  the  promise  of  each  may  be  a  good  consideration 
for  the  promise  of  the  others,  (o)     If  there  be  a  chartered  com- 


(/)   Sec  anti',]).  *276. 

(m)  Holt  V.  Ward  Cliirencieux,  2  Str. 
937  ;  limit  r.  Peakc,  5  Cow.  475 ;  Wil- 
lard  V.  Stone,  7  Cow.  22  ;  Cannon  v.  Als- 
bury,  1  A.  K.  Marsh.  78.  —  So  an  infant 
may  maintain  an  action  on  a  mercantile 
contract,  altlioujrh  he  would  not  be  Itound 
liimself.  Warwick  v.  Brace,  2  M.  &  S. 
205. 

(n)  Ainslie  r.  Medlycott,  9  Ves.  14; 
Simson  v.  Jones,  2  II.  &  Mvlne,  365  ; 
Duniford  r.  Lane,  1  Bro.  C.  C.  Ill; 
Fonblanijuc  on  Eq.  74  ;  and  sec  aide,  p. 
277. 

{o)  Society  in  Troy  r.  Pern-,  6  New 
Ilamp.  164  ;'  Georjre  i'.  Ilanis,  4  id.  533  ; 
Hanson  v.  Stetson,  5  Pick.  506  ;  State 
Treasurer  r.  Cross,  9  Venn.  289  ;  Uni- 
versity of  Vermont  r.  Buell,  2  Verm.  48; 
Commissioners  r.  Perry,  5  I  lam.  58. — 
It  is  on  this  ground  that  subscriptions  to 
charitable  or  Itencvolent  objects  have  often 
been  held  binding,  when  there  was  no  other 
consideration  for  each  subscriijcr's  ])roniise 
than  the  j)romisc  of  other  subscril>ers.  It 
must  be  confessed,  hf>wevcr,  that  there  arc 
many  authorities  which  seem  to  hold  it 
necessary  in  such  cases  that  there  shall  be 
some  j)ix)mise  or  engagement  by  the  com- 


mittee, corporation,  or  other  person  to 
whom  the  subscription  paper  runs,  or  that 
something  should  be  done  on  their  part, 
as  the  erection  of  the  building,  providing 
materials  or  the  like,  in  order  to  lender 
the  subscrijition  binding.  The  cases  of 
Limerick  Academy  r.  Davis,  1 1  Mass. 
114  ;  Bridgewater  Academy  c.  Gilbert,  2 
Pick.  579  ;  Troy  Academy  r.  Nelson,  24 
Verm.  189;  Gittings  r.  Mayhew,  6  Maiyl. 
113;  Phipps  V.  Jones,  20  Penn.  St.  Rep. 
260  ;  Barnes  r.  Pcrine,  9  Barb.  202  ;  Wil- 
son V.  Baptist  Education  Soc.  10  Barb. 
309 ;  Gait's  Ex'rs  r.  Swain,  9  Gratt.  6:?3  ; 
and  othei-s,  favor  this  view.  Sec  also.  No. 
42  Am.  Jur.  281-283  ;  Foxcroft  Academy 
V.  Favor,  4  Greenl.  R.  382,  (Bennett's 
cd.)  and  note.  This  point  was  very  fully 
discussed  in  the  late  case  of  Hamilton 
College  V.  Stewart,  2  Den.  403,  and  1 
Comst.  581.  It  was  there  hdd,  that  the- 
endowment  of  a  literary  institution  is  not 
a  sufficient  consideration  to  uphold  a  sub- 
scrij)tion  to  a  fund  designed  for  that  object. 
And  although  there  is  annexed  to  the  sub- 
scription a  condition  that  the  subscriiiers 
arc  not  to  be  bound  unless  a  given  amount 
shall  be  raised,  no  request  can  be  im]died 
therefrom  against  the  subscrii)ers  that  the 

[399  J 


37S* 


THE   LAW   OF    CONTRACTS. 


[book  II 


pany  or  corporation,  one  who  subscribes  agreeably  to  the  statute 
and  by-laws  acquires  a  right  to  his  shares;  and  as  the  company 
is  under  an  obligation  to  give  him  the  shares,  this  would  be  a 
consideration  for  the  promise,  and  would  make  his  subscription 
obligatory  on  him.  (p) 

*On  the  important  question,  how  far  voluntary  subscriptions 
for  charitable  purposes,  as  for  alms,  education,  religion,  or  other 
public  uses,  are  binding,  the  law  has  in  this  country  passed 
through  some  fluctuation,  and  cannot  now  be  regarded  as  set- 
tled. Where  advances  have  been  made,  or  expenses  or  liabili- 
ties incurred  by  others  in  consequence  of  such  subscriptions, 
before  any  notice  of  withdrawal,  this  should,  on  general  prin- 
ciples, be  deemed  sufficient  to  make  them  obligatory,  provided 
the  advances  were  authorized  by  a  fair  and  reasonable  depend- 
ence on  the  subscriptions ;  and  this  rule  seems  to  be  well 
established,  (q)  Further  than  this  it  is  not  easy  to  go,  unless 
such  subscriptions  are  held  to  be  binding  merely  on  grounds  of 


institution  sliall  perform  the  services  and 
incur  the  expenses  necessary  to  fill  up  the 
subscription.  Accordingly,  where  the  de- 
fendant subscribed  $800  to  a  fund  for  the 
payment  of  the  salaries  of  the  officers  of 
Hamilton  College,  and  a  condition  was 
annexed  that  the  subscribers  were  not  to 
be  bound  unless  the  aggregate  amount  of 
subscriptions  and  contributions  should  be 
$50,000 ;  it  was  held,  that  there  was  no 
consideration  for  the  undertaking,  and 
that  no  action  would  lie  upon  it,  although 
there  was  evidence  tending  to  show  that 
the  whole  amount  had  been  subscribed  or 
contributed  according  to  the  terms  of  the 
condition.  But  see  Barnes  v.  Ferine,  9 
Barb.  202 ;  Johnston  v.  Wabash  College, 
2  Cart.  (Ind.)  55.5. 

(/))  Chester  Glass  Company  v.  Dewey, 
16  i\Ia.-:s.  94.  In  this  case  certain  indi- 
viduals having  associated  in  writing  for 
the  purpose  of  carrying  on  a  particular 
manufacture,  and  being  afterwards  incor- 
porated for  the  same  purpose,  one,  who 
subscribed  tlic  writing  after  the  incorpora- 
tion, became  thereby  a  member  of  the  cor- 
poration, and  was  held  to  pay  the  sum  he 
had  subscribed.  But  where  one  sub- 
scribed an  agreement  to  take  shares  in  a 
corporation  after  the  passage  of  the  act  of 
incorporation,  l)ut  before  any  meeting  of 
the  persons  incorporated  and  their  asso- 
[400] 


ciates,  it  was  held,  that  such  agreement 
could  furnish  no  evidence  of  a  contract 
witii  the  corporation.  New  Bedford  Turn- 
pike V.  Adams,  8  Mass.  1.38.  And  there 
is  no  privity  of  contract  between  a  party 
signing  and  a  committee  appointed  by  his 
co-signers  at  a  meeting  which  he  did  not 
attend  ;  although  the  committee  proceeded 
and  expended  money.  Curry  i\  Rogers, 
1  Foster,  247. 

{(/)  Bryant  v.  Goodnow,  5  Pick.  228; 
Warren  y.  Stearns,  19  id.  73;  Robertsou 
i:  March,  3  Scam.  198;  Macon  y.  Shep- 
pard,  2  Humph.  335 ;  University  of  Ver- 
mont V.  Buell,  2  Verm.  48;  Canal  Fund 
V.  Perry,  5  Ham.  58 ;  Barnes  ?>.  Ferine,  9 
Barb.  202;  Homes  v.  Dana,  12  Mass. 
190.  In  this  last  case  sundry  ])ersons 
agreed  to  lend  to  the  editors  of  tlie  Boston 
Patriot  the  sum  set  against  their  names, 
which  was  to  be  paid  to  one  of  their 
number  as  agent.  This  agent  tlierefore 
made  advances  to  the  editors,  and  it  was 
held  that  he  had  an  action  against  each 
subscriber.  The  court  said  the  only 
.question  which  could  arise  in  the  case 
was,  whether  Larkiu  was  induced  to  ad- 
vance his  money  by  the  subscription. 
See  also,  Thompson  v.  Page,  1  Met.  570, 
and  Farmington  Academy  i\  Allen,  14 
Mass.  172. 


CH.   I.] 


CONSIDERATION. 


*379 


public  policy,  To  say  that  they  arc  obligatory,  because  they 
are  all  promises,  and  the  promise  of  each  subscriber  is  a  valid 
consideration  for  the  promise  of  every  other,  seems  to  be  reason- 
ing in  a  vicious  circle.  The  very  question  is,  are  the  promises 
binding;  for  if  not  then  they  are  no  consideration  for  each 
other.  To  say  that  they  are  binding,  because  they  are  such  con- 
siderations, is  only  to  say  that  they  are  binding  because  they 
are  binding;  it  assumes  the  very  thing  in  question,  (r) 

*In  general,  subscriptions  on  certain  conditions  in  favor  of 
the  party  subscribing  are  binding  when  the  acts  stipulated  as 
conditions  are  performed,  (s) 


SECTION    XI. 

OF    COXSIDEllATIOX    VOID    IN    PART. 

It  sometimes  happens  that  a  consideration  is  void  in  part; 
and  the  question  arises  whether  this  fact  makes  the  whole  con- 
sideration invalid,  and  the  promise  itself  of  no  obligation.  If 
one  or  more  of  several  considerations,  which  are  recited  as  the 


I 


(r)  Tliat  sucli  sul)scriiiftons  arc  valid 
where  no  expenses  or  lialiilities  arc  incurred 
l)ccaiise  (jf  tlieni,  and  on  the  ground  of 
mutuality  of  i)romi.sc,  seems  to  be  at  Ic.ist 
implied  in  some  cases.  Sec  George  i: 
Harris,  4  N.  II.  533.  From  this  case  it 
would  appeal"  that  such  a  subscription 
may  at  all  events  be  treated  as  an  agree- 
ment of  the  subscribers  by  and  with  each 
other,  u))on  the  failure  to  perform  which 
by  any  one  of  thcni,  the  others  can  join 
in  an  action  of  assumpsit  against  him  to 
recover  the  amount  of  his  subscription. 
See  also.  Society  in  Troy  r.  IVriT,  G  New 
Ilainp.  164  ;  Same  r.  Goddard,  7  id.  43.5  ; 
Fisher  v.  Ellis,  3  Pick.  323 ;  Amherst 
.\cadcmy  r.  Cowls,  6  id.  427.  In  the  last 
two  cases  a  promissory  note  wils  given  in 
discharge  of  the  subscription.  Hut  it  is 
not  easy  to  see  how  that  strengthened  the 
obligation.  In  Ives  r.  Sterling,  G  Met. 
310,  the  court  notice  the  conllict  of  opin- 
ion, without  attempting  to  reconcile  it. 
In  New  York  the  authorities  are  in  similar 
conflict.  Sec  Whitestown  r.  Stone,  7 
Johns.  112;  :McAulcy  v.  Billinger,  20  id. 

34* 


89.  In  Stewart  r.  Trustees  of  Hamilton 
College,  1  Comst.  581,  2  Dcnio,  403, 
Waluorlli,  Chancellor,  had  held,  tiiat 
where  several  persons  subscribe  for  an 
object  in  which  all  are  interested,  as  the 
su|)port  of  institutions  of  religion  or  learn- 
ing, in  the  community  where  they  reside, 
the  ]>romise  of  each  subscriber  is  the  con- 
sideration of  tiie  promise  of  each  other. 
Hut  the  Court  of  Ap])cals  does  not  a])i)ear 
to  adopt  this  view.  It  was  laid,  liowever, 
in  botli  courts,  that  if  the  trustees  arjirrxl 
to  cndidvor  to  raise  a  certain  sum  in  con- 
sideration of  the  subscription,  this  would 
make  it  bimling.  There  arc  cases  so 
obscurely  stated  that  it  is  not  easy  to  see 
whether  the  court  intend  to  say  that  such 
subscriptions  are  binding  without  the 
jiroof  of  expense  or  liability  actually  in- 
i^irred  in  consequence  of  them.  See 
Caul  V.  Gibson,  3  Harr,  416  ;  Collier  v. 
Haptist  Educational  Societv,  8  B.  Mon- 
roe, 68 ;  Barnes  v.  Ferine,  ''J  Barb.  202, 
S.  C.  2  Kernan,  18. 

{.•,)  Williams  College  /-.   Danforth,    12. 
Pick.  541. 

[-101] 


380' 


THE   LAW    0¥    CONTRACTS. 


[book  II. 


ground  of  a  promise,  be  only  frivolous  and  insufficient,  but  not 
illegal,  and  others  are  good  and  sufficient,  then  undoubtedly  the 
consideration  may  be  severed,  and  those  which  are  void  disre- 
garded, while  those  which  are  valid  will  sustain  the  promise,  (t) 
But  where  the  consideration  is  entire  and  incapable  of  severance, 
then  it  must  be  wholly  good  or  wholly  bad.  If  the  promise  be 
entire,  and  not  in  writing,  and  a  part  of  it  relate  to  a  matter 
which  by  the  statute  of  frauds  should  be  promised  in  writing, 
such  part,  being  void,  avoids  the  whole  contract,  (w)  but  if  it  be 
such  in  its  nature  that  it  may  be  divided,  and  the  part  not  re- 
quired to  be  in  writing  by  the  statute  may  be  enforced  without 
injustice  to  the  promisor,  that  portion  of  the  agreement  will  be 
binding,  (uu) 


*SECTION     XII. 

ILLEGALITY    OF    CONSIDERATION, 

In  general,  if  any  part  of  the  entire  consideration  for  a  prom- 
ise, or  any  part  of  an  entire  promise,  be  illegal,  whether  by 
statute  or  at  common  law,  the  whole  contract  is  void,  (v)     But 


(i!)  Parish  v.  Stone,  14  Pick.  198  ;  King 
p.  Sears,  2  C.  M.  &  R.  48  ;  Jones  v. 
Waitc,  5  Bing.  N.  C.  341  ;  Shcennan  v. 
Thompson,  11  Ad.  &  El.  1027  ;  Best  r. 
Jolly,  1  Sid.  38  ;  Cripps  r.  Golding,  1 
Rol.  Abr.  30,  Action  sur  Case,  pi.  2; 
Bradburne  v.  Bradburne,  Cro.  Eliz.  149  ; 
Coulslon  V.  Carr,  id.  848 ;  Crisp  v. 
Gatncl,  Cro.  Jac.  127 ;  Shaekell  v. 
Rosier,  2  Bing.  N.  C.  64G,  per  Tin- 
dal,  C.  J. 

(«)  Mechclen  v.  Wallace,  7  Ad.  &  EI. 
49,  2  N.  &  P.  224.  Here  the  declaration 
stated  that  defendant  wished  plaintiff  to 
hire  of  lier  a  liouse,  and  furniture  for  the 
same,  at  the  rent  of,  &c. ;  and  thereupon, 
in  consideration  that  plaintiff  ■would  take 
possession  of  the  said  house  partly  fur-« 
nishcd,  aiad  would,  if  complete  furniture 
were  sent  into  the  said  house  by  defendant 
in  a  reasonable  time,  become  tenant  to 
defendant  of  tlie  said  liouse,  with  all  the 
said  furniture,  at  the  aforesaid  rent,  and 
pay  the  same  quarterly  from  a  certain  dav, 
[402] 


namely,  &c.,  defendant  promised  plaintiff 
to  send  into  the  said  house,  within  a  rea- 
sonable time  after  plaintiff' 's  taking  pos- 
session, all  the  furniture  necessary,  &c. 
IMd,  that  the  defendant's  agreement  to 
send  in  furniture  was  an  inseparable  part 
of  a  contract  for  an  interest  in  lands,  and 
therefore  came  within  stat.  29,  Car.  2, 
which,  in  such  case,  requires  the  agree- 
ment, or  a  memorandum  thereof,  to  be  in 
writing.  See  also,  Chater  v.  Beckett,  7 
T.  R.  203  ;  Lord  Lexington  v.  Clarke,  2 
Vent.  223 ;  Thomas  v.  Williams,  10  B.  & 
C.  664 ;  Wood  v.  Benson,  2  Tyr.  93  ; 
Mayfield  v.  Wadslcy,  2  B.  &  C.  3.57  ;  For- 
gret  V.  Moore,  16  E.  L.  &  E.  566  ;  Irvine 
V.  Stone,  6  Cush.  508  ;  Noyes'  Ex'r  v. 
Humphreys,  11  Grattan,  636. 

(mm)  Irvine  v.  Stone,  6  Cush.  508; 
Wood  V.  Benson,  2  Tyr.  93  ;  Rand  v. 
Mather,  Boston  Monthly  Law  Reporter, 
Sept.  1854. 

(v)  Collins  V.  Blantern,  2  Wilson,  347  ; 
Benyon  v.  Nettlefold,  2  E.  L.  &  E.  113  ; 


CH.  I.] 


CONSIDERATION. 


*381 


a  distinction  must  be  taken  between  the  cases  in  which  the 
consideration  is  illegal  in  part,  and  those  in  which  the  promise 
founded  on  the  consideration  is  illegal  in  part.  If  any  part  of 
a  consideration  is  illegal,  the  whole  consideration  is  void  ;  be- 
cause public  policy  will  not  permit  a  party  to  enforce  a  promise 
which  he  has  obtained  by  an  illegal  act  or  an  illegal  promise, 
although  he  may  have  connected  with  this  act  or  promise 
another  which  is  legal.  Bnt  if  one  gives  a  good  and  valid 
consideration,  and  thereupon  another  promises  to  do  two 
things,  one  legal  and  the  other  illegal,  he  shall  be  held  to  do 
that  which  is  legal,  (w)  unless  the  two  are  so  mingled  and 
bound  together  that  they  cannot  be  separated  ;  in  which  case 
the  whole  promise  is  void. 

A  distinction  has  been  taken  between  the  partial  illegality  of 
a  consideration  when  against  a  statute,  and  when  against  com- 
mon law.  There  are  cases  which  sustain  this  distinction,  (x) 
but  we  think  it  rests  upon  no  sound  j)rinciple.  A  *statute  has 
no  more  power  in  avoiding  a  contract  partially  opposed  to  it 
than  the  common  law,  (//)   unless  it  contain  an  express  provis- 


Donallen  v.  Lennox,  6  Dana,  91  ;  Brown 
V.  Lanjiford,  3  Bibb,  500  ;  llincshur^Ii  r. 
Sumner,  9  Venn.  23 ;  Arinstronjr  i-. 
Toler,  11  Wlieat.  258  ;  WoodnilVr.  Hin- 
man,  11  Venn.  592;  Buck  v.  Alltee,  26 
Vt.  184;  Deerinj:  c.  Cliaiininn,  22  Maine, 
488  ;  Filson  v.  llinies,  5  Ban,  452  ;  l)e<i- 
hani  Bank  r.  Cliickerinir,  4  I'iek.  314; 
Perkins  /•.  Cummin^s,  2  Gray,  258  ;  C'oul- 
ter  I'.  Kobertson,  14  Sui.  &  M.  18;  Gam- 
ble V.  Grimes,  2  Cart.  (Ind.)  392  ;  Carle- 
ton  V.  Bailey,  7  Fost.  230;  Hoover  r. 
Pieree,  27  Miss.  13.  Sec  also,  Ilowden 
V.  Simpson,  10  Ad.  &  Ei.  815;  Hall  r. 
Dyson,  10  K.  L.  &  E.  424  ;  Siierman  v. 
Barnard,  19  Barl).  291. 

(w)  Tbus,  in  the  Bislio])  of  Cliester  r. 
John  Ereiand,  Ley,  79,  Ifnllon,  J.,  lays 
down  tbe  rule  that  wiien  a  pood  thin;; 
and  a  void  tiling  arc  put  toi^eliier  in  tbe 
same  arrant,  the  eommon  law  makes  sucli 
construetiou  that  tlie  prant  shall  be  pood 
for  that  wiiieh  is  ^jood,  and  void  Cor  that 
whieli  is  void.  This  priiuiplc  is  also  dis- 
tinctly recognized  in  Kerrison  v.  Cole,  8 
East,  230.  See  also,  Norton  v.  Simnies, 
Hob.  14.  And  in  the  late  case  of  Leavitt 
V.  Palmer,  3  Comst.  37,  Brouson,  J.,  said  ; 
"It   is    undoubtedly   true   that  wliere    a 


deed  or  other  contract  contains  distinct 
undertakiuffs,  some  of  wliicli  are  lepal  and 
some  illegal,  the  former  will  be  in  certain 
cases  ni)hel(l,  thou;ih  the  latter  are  void." 
And  the  i)rinciple  was  fully  recojiuized  in 
a  late  case  before  the  Privy  Council. 
Bank  of  Australasia  r.  Bank  of  Australia, 
12  Jur.  189,  (■)  K.  E.  Moore,  152.  See 
also,  Chase's  E.v'rc.  Burkholder,  IS  Penn. 
50. 

(./■)  Norton  r.  Siinmes,  Hob.  14;  Ma- 
levcrer  /•.  Ucdsliaw,  1  Mod.  .35.  Ticisden, 
J. ;  Com.  Dijr.  Covenant,  (E.)  ;  Bac.  Abr. 
Conditions,  (K.);  Hackett  r.  Tillv,  11 
Mod.  93;  Butler  r.  Wijii^-e,  1  \Vms. 
Saund.  GO;  a.  n.  1  ;  1  Pow.  on  Cont.  199; 
Lee  r.  Coleshill,  Cro.  Eliz.  529  ;  Pearson 
V.  Hnmes,  Carter,  230  ;  MosihU  v.  Mid- 
dleton,  1  N'ent.  237  ;  Van  Dyck  v.  Van 
Benren,  1  Johns.  3()2. 

(//)  The  meiit  of  explodin;r  this  vener- 
able error  of  supposin^r  a  distinction  l>e- 
tween  contracts  void  by  statute  and  con- 
tracts void  at  eommon  law,  belon;::s  to  the 
Hon.  Theron  Metcalf  td'  Massachusetts, 
who  with  his  well-known  acnicncis  and 
accuracy  has  ])oiiitcd  out  the  oriirin  of  the 
error,  and  shown  its  fallacy.  23  Am.. Jur. 
2.  And  it  inav  now  be  considered  as 
[403] 


382* 


THE   LAW    0?   CONTRACTS. 


[book  II. 


ion  that  all  such  agreements  shall  be  wholly  void,  (z)  and  then 
the  contract  is  void  although  a  promissory  note  in  the  hands  of 
an  innocent  indorsee,  (zz)  But,  while  the  law  is  sutficiently 
distinct  where  the  whole  consideration  or  the  whole  promise  is 
illegal,  questions  still  remain,  where  the  illegality  is  but  partial, 
which  can  be  only  determined  by  further  adjudication. 

Where  the  consideration  is  altogether  illegal,  it  is  insufficient 
to  sustain  a  promise,  and  the  agreement  is  wholly  void.  This 
is  so  equally,  whether  the  law  which  is  violated  be  statute  law 
or  common  law.  It  has  been  held  in  England,  (a)  that  where  a 
statute  provided  a  penalty  for  an  act,  without  prohibiting  the 
act  in  express  terms,  there  the  penalty  was  the  only  legal  conse- 
quence of  a  violation  of  the  law,  and  a  contract  which  im- 
plied or  required  such  violation  was  nevertheless  valid.  But 
Lord  Holt  (6)  denied  the  doctrine ;  and  Sir  James  Mansfield 
established  a  better  rule  of  law,  (c)  holding  that  where  a  statute 
provides  a  penalty  for  an  act,  this  is  a  prohibition  of  the  act. 
We  apprehend  that  this  has  always  *been  the  prevailing,  if  not 
the  uncontradicted  rule  of  law,  on  this  subject,  in  this  coun- 
try, (d) 


fnWy  cstalilishcd,  that  althongh  a  contract 
contain  some  provisions  or  promises  which 
are  void  by  statute,  yet,  if  it  also  embrace 
other  agreements  whicli  would  be,  if  stand- 
ing alone,  valid,  they  may  still  be  en- 
forced. See  Monys  r.  Leake,  8  T.  R. 
411  ;  Kerrison  v.  Cole,  8  East,  231  ;  Doe 
V.  Pitcher,  G  Taunt.  359  ;  Greenwood  r. 
Bishop  of  London,  5  Taunt.  727  ;  New- 
man i\  Newman,  4  M.  &  S.  66  ;  Wigg  v. 
Shuttleworth,  13  East,  87;  Gaskell  r. 
King,  II  East,  165;  Howe  v.  Syngc,  15 
id.  440 ;  Tinckler  v.  Prentice,  4"  Taunt. 
549  ;  Fuller  v.  Abbott,  4  id.  105  ;  Shackel 
V.  Rosier,  2  Bing.  N.  C.  646;  Jones  v. 
Waite,  5  id.  841.  The  recent  case  of 
Jarvis  v.  Peek,  1  Hoff.  479,  so  far  as  it 
may  be  considered  as  having  recognized 
any  distinction  of  this  kind,  is  not  in  our 
opinion  sound  law. 

(z)  Thus,  where  the  statute  declares  a 
certain  contract  to  be  "void  to  uU  intents 
and  /j»r/)o.sp.swhatever,"  it  has  been //cW  that 
if  such  a  contract  also  contain  stipulations 
not  within  the  intent  of  the  statute,  the 
latter  will  be  considered  void  by  force  of 
the  statute.  See  Crosley  v.  Arkwright,  2 
T.  R.  603  ;  Dann  v.  Dolman,  5  id.  641. 

[404] 


(rs)  Bridge  t'.  Hubbard,  15  Mass.  96; 
Hay  V.  Ayling,  3  E.  L.  &  E.  416,  and 
note. 

(«)  Coniyns  i'.  Boyer,  Cro.  Eliz.  485  ; 
and  sec  Grcmare  v.  Le  Clerk  Bois  Valon, 
2  Camp.  144. 

(b)  Bartlett  v.  Vinor,  Carth.  252,  Skin. 
322.  Ilult,  C.  J.,  here  said  :  —  "  Every 
contract  made  for  or  about  any  matter  or 
thing  which  is  prohibited,  and  made  un- 
lawful by  any  statute,  is  a  void  contract, 
though  the  statute  itself  does  not  mention 
that  it  shall  be  so,  but  only  inflicts  a  pen- 
alt}^  on  the  offender,  because  a  penalty 
implies  a  prohibition,  though  there  are  no 
prohibitory  words  in  the  statute." 

(c)  Drury  v.  Defontaine,  1  Taunt.  136. 

(d)  This  principle  is  sustained  by  nu- 
merous adjudged  cases.  Wheeler  v.  Rus- 
sell, 17  Mass.  258;  Coombs  r.  Emery,  14 
Maine,  404 ;  Springfield  Bank  v.  Merrick, 
14  Mass.  322;  Russell  v.  De  Grand,  15 
Mass.  39 ;  Seidenbender  i'.  Charles,  4 
Serg.  &  Rawle,  1 59  ;  Mitchell  v.  Smith,  1 
Binn.  118  ;  Sharp  v.  Teese,  4  Halst.  352  ; 
De  Begnis  v.  Armistead,  10  Bimi.  107,  3 
I\Ioore"&  Scott,  516;  Cope  i-.  Rowlands, 
2  M.  &  W.  149  ;  Eergusson  r.  Norman,  5 


en.  I.] 


CONSIDERATION. 


*383 


SECTION    XIII. 

IMPOSSIBLE   CONSIDERATIOXS. 

Impossible  considerations  are  wholly  bad  and  insufficient. 
We  have  seen  that  a  consideration  which  one  cannot  perform 
without  a  breach  of  the  law  is  bad,  and  so  is  one  which  cannot 
be  performed  at  all.  (e)    The  reason  is  obvious ;  from  *such  con- 


Bln":.  N.  C.  86  ;  Territt  r.  Bartlett,  21 
Venn.  184  ;  Bancroft  r.  Dumas,  21  Venn. 
45G;  Bell  r.  Quin,  2  Sandf.  146;  Elicr- 
man  v.  Rcitzell,  I  Watts  &  Scrp;.  181  ; 
Hale  r.  Henderson,  4  Ilumpli.  199  ;  EI- 
kins  V.  Parkhui-st,  17  Verm.  105  ;  Brackett 
V.  Hoyt,  9  Fcst.  264. — And  the  re- 
peal of  a  proliibiton-  act  will  not  pei-  se 
render  valid  a  contract  made  during;;  tlie 
existence  of  the  act,  contraiy  to  its  provis- 
ions. But  the  legislature  may  orive  a 
remedy  by  express  enactment.  Milne  v. 
IIuhcr,.3  "McLean,  212.  A  recent  appli- 
cation of  the  general  princiiile  of  the  text 
wa.s  made  in  Jackson  r.  Walker,  5  Hill, 
27.  By  the  laws  of  New  York  everj'  con- 
trii)ution  of  money  intended  to  promote 
the  election  of  any  person  or  ticket  is  jiro- 
hihitcd  by  the  statute,  (1  K.  S.  1.36,  §6,) 
except  for  defraying  the  expenses  of  jiriiit- 
iiig,  and  the  circulation  of  votes,  handbills, 
and  other  papers,  previous  to  such  elec- 
tion ;  and  this,  whether  the  immediate 
jMirpose  for  which  the  money  is  designed 
be  in  itself  corni|)t  or  not.  Accordingly, 
where  the  defendant  agreed  to  pay  the 
})laintilf  SIOOO,  in  consideration  that  tiie 
latter,  who  had  built  a  log  cabin,  would 
keep  it  open  for  the  accommodation  of 
political  meetings  to  further  the  success  of 
certain  persons  nominated  for  members  of 
Congress,  &c.,  it  was  firhl  that  the  agree- 
ment was  illegal,  and  could  not  be  en- 
forced. Sec  also  the  recent  ca.se  of  Cun- 
dell  r.  Dawson,  4  C.  B.  .'376.  In  this 
case  the  same  princijile  was  applied,  but 
Wililf,  C.  J.,  intimated  that  statutes  en- 
acted simply  for  the  security  of  the  reve- 
nue did  not  come  within  the  |)rinciple. 
And  in  Smith  r.  Mawliood,  14  M.  &  W. 
4.")2,  it  was  firlrl  that  the  excise  act  re- 
(juiring  certain  things  of  dealers  in  tobacco 
did  not  avoid  a  contract  of  sale  of  tobacco 


by  one  not  complying  with  these  requisi- 
tions, as  their  effect  is  only  to  imi)osc  a 
penalty.  But  where  it  appears  to  be  the 
intention  of  the  legislature  to  prohibit  a 
contract  as  well  as  to  impose  a  penalt}-  for 
making  it,  such  contract  is  illegal  and  void, 
altiiough  the  prohibition  be  intended  only 
for  j)urposes  of  revenue.  And  see  Abbott 
V.  Rogers,  30  E.  L.  &  E.  446. 

(e)  5  Vin.  Abr.  110,  111,  Condition, 
(C)  a.  (D,)  a;  1  Eol.  Abr.  419;  Co. 
Litt.  206,  a;  2  Bl.  Com.  341;  Shep. 
Touch.  164.  See  22  Am.  Jur.  20-22.  In 
Nerot  V.  AVallaee,  3  T.  B.  17,  a  i)romisc 
was  made  by  the  defendant  to  the  as- 
signees of  a  bankru])t,  when  the  latter  was 
on  his  last  examination,  that  in  considera- 
tion that  the  assignees  would  forbear  to 
have  the  bankrupt  examined,  and  that 
the  commissioners  would  desist  from  tak- 
ing such  examination  touching  moneys 
alleged  to  have  been  received  by  the  bank- 
rupt, and  not  accounted  for,  he,  the  de- 
fendant, would  pay  such  money  to  the  as- 
signees. This  promise  was  held  by  the 
court  to  be  illi'ijal,  as  being  against  the 
policy  of  the  bankrupt  laws.  And  Lord 
Kini/un  olfscrvcd  :  "  I  do  not  say  that  this 
is  nudum  juirtum :  but  the  ground  on 
which  I  fouixl  my  judgment  is  this,  that 
every  person,  who  in  consideration  of 
some  advantage,  either  to  himself  or  to 
another,  promises  a  benefit,  must  have  the 
jHjwi-r  of  roiij'fiTinfj  that  li<iii[fit  vp  to  the  ex- 
tiiit  to  irhich  that  Itttiejit  projlsfics  to  (/o,  a?)d 
that  not  onlif  in  fart,  hut  in  law.  Now  the 
])romisc  made  by  the  assignees  in  this 
case,  which  was  the  consideration  of  the 
defendant's  promise,  was  not  in  their 
power  to  pciform,  because  the  commis- 
sioners hail  nevertheless  a  right  to  ex- 
amine the  banknipt.  And  no  collusion  of 
tiiu  assignees  could  deprive  the  creditors 

[405] 


384* 


THE   LAW    OF  CONTRACTS. 


[book  II. 


sideration  no  possible  benefit  or  advantage  could  be  derived  to 
the  one  party,  and  no  detriment  to  the  other,  and  if  that  which 
is  otTered  or  provided  as  a  consideration  cannot  happen,  the 
mere  words  alone  are  a  nullity.  It  is  undoubtedly  possible,  that 
one  may  make  g.  promise  which  it  is  utterly  impossible  to  per- 
form, and  nevertheless  the  promisee  may  derive  a  positive  ad- 
vantage from  the  mere  fact  that  the  promise  is  made.  In  such 
a  case,  supposing  the  transaction  free  from  all  taint  of  fraud, 
this  advantage  would  be  a  good  consideration,  but  not  the 
promise  by  itself. 

But  a  promise  is  not  void,  merely  because  it  is  difficult,  or 
even  improbable.  And  it  seems  that  if  the  impossibility  *ap- 
plies  to  the  promisor  personally,  there  being  neither  natural 
impossibility  in  the  thing,  nor  illegality  nor  immorality,  then  he 
is  bound  by  his  undertaking,  and  it  is  a  good  consideration  for 
the  promise  of  another.  (/)      The  reason  of  this  appears  to  be, 


of  the  riglit  of  examination  wliich  the 
commissioners  would  procure  them.  The 
assignees  did  not  stipuLite  only  for  their 
own  acts,  hut  also  that  the  commissioners 
should  forhcar  to  examine  the  bankrupt ; 
but  clearly  they  had  no  right- to  tie  up  the 
hands  of  the  commissioners  Iiy  any  such 
agreement."  And  Ashurst,  J.,  observed  : 
"  In  order  to  found  a  consideration  for  a 
promise,  it  is  necessary  that  the  party  by 
whom  the  promise  is  made  should  have 
the  power  of  carri/iiifj  it  into  e^ect,  and  sec- 
ondly, that  the  thing  to  be  done  should 
in  itself  be  legal.  Now  it  seems  to  me 
that  the  consideration  for  this  promise  is 
void,  on  both  these  grounds.  The  as- 
signees have  no  right  to  control  the  dis- 
cretion of  the  commissioners  ;  and  it  would 
be  criminal  in  them  to  enter  into  such  an 
agreement,  because  it  is  their  duty  to  ex- 
amine the  Iiankrupt  fullv,  and  the  credi- 
tors may  call  on  them  to  perform  it. 
And  for  the  same  reason  the  thing  to  be 
done  is  also  illegal."—  And  so  in  Bates  v. 
Cort,  2  E.  &  C.  474,  which  may  perhaps 
be  regarded  as  an  extreme  case,  the  dec- 
laration stated,  that  by  agreement  between 
the  plaintiff  and  G.  G.,  the  plaintiff  agreed 
to  sell  and  deliver  to  G.  G.  a  lace  machine 
for  £220,  to  be  paid  thus  :  £40  on  deliv- 
ery, and  the  residue  by  weekly  payments 
of  one  pound,  which  were  to  be  paid  to 
the  defendant  as  trustee  for  the  plaintiff, 
and  in  case  of  any  dcf;uilt  tiie   plaintiff 

[  406  ] 


was  to  have  back  the  machine,  and  in  con- 
sideration of  the  premises,  and  of  the 
plaintiff  at  the  request  of  the  defendant 
promised  to  take  the  machine  and  pay  the 
balance,  should  there  be  any  default  in  G. 
G.  in  the  weekly  payments.  It  was  held  that 
this  promise  was  nudum  pactum,  and  void. 
And  by  the  court :  "  The  declaration  affects 
to  show  tlie  legal  operation  of  the  agree- 
ment. Now  that  states  that  the  agreement 
bound  the  defendant  to  take  the  machine, 
not  the  plaintiff  to  deliver  it.  The  declara- 
tion does  not  even  show  that  it  was  in  the 
plaintiff's  power  to  deliver  the  machine, 
for  it  is  not  stated  that  he  had  e\'er  got  it 
back  from  the  original  vendee.  There 
certainly  is  an  allegation  of  willingness  to 
let  the  defendant  take  the  machine,  but  that 
docs  not  appear  to  have  been  in  pursuance 
of  any  preexisting  agreement,  nor  does 
the  whole  import  any  obligation  on  the 
plaintiff  to  let  the  defendant  take  it.  The 
declaration  is  therefore  bad,  no  sufficient 
consideration  for  the  defendant's  promise 
being  shown." 

(/)  See  Co.  Litt.  206,  a,  n.  1  ;  Piatt 
on  Gov.  569;  3  Chitty  on  Com.  Law, 
101  ;  Blight  V.  Page,  3  B.  &  P.  296,  note ; 
Worsley  f.  Wood,  6  T.  R.  718,  Kenyan, 
C.  J.  And  see  Tufnell  v.  Constable,  7 
Ad.  &  El.  7'98,  artjuendo.  In  this  case 
there  was  a  covenant  to  invest  a  sum  in 
bank  annuities,  or  other  government  stock, 
in  the  corporate  names  of  the  archdeacon 


CH.  I.] 


CONSIDEKATION. 


*385 


that  if  a  party  binds  himself  to  such  an  undertaking,  he  may 
either  procure  the  thing  to  be  done  by  those  who  can  do  it,  or 
else  pay  damages  for  the  not  doing  it.  The  party  receiving 
such  a  promise  may  know  that  the  promisor  himself  cannot  do 
the  thing  he  undertakes,  but  may  not  know  that  he  has  not 
already  made,  or  has  it  not  in  his  power  to  make,  such  arrange- 
ment with  him  who  can  do  it  as  will  secure  its  being  done. 
He  has  a  right,  therefore,  to  expect  that  it  will  be  done,  and  to 
pay  for  such  promise  or  undertaking,  either  by  his  own  promise 
or  otherwise.  But  if  the  thing  undertaken  is  in  its  own  nature 
and  obviously  impossible,  he  cannot  expect  it  will  be  done  ;  and 
to  enter  into  any  transaction  based  upon  such  undertaking  is  a 
fraud  or  a  folly  which  the  law  will  not  sanction.  Hence,  it 
would  seem  *that  an  engagement  by  one,  entered  into  with  a 
second  part}^,  that  a  third  party  shall  do  something  which  the 
first  cannot  do,  is  a  good  consideration  for  a  promise  by  the 
second  party,  (g-)     The  cases  which  seem  to  oppose  this  rule 


of  C,  the  vicar  of  W.,  and  the  churdi- 
wardcns  of  W.,  the  dlvideiuls  to  be  held 
and  reeeived  by  the  archdeacon,  viear,  and 
churchwardens,  f(jr  the  time  bcinjr,  in  trust 
for  the  support  of  a  parish  sciiool  for  ])()or 
children,  and  in  furtlier  trust  for  the  dis- 
])osition  of  coals,  &c.,  amonp:  |)oor  persons 
of  tiic  parisii.  JLlil,  on  general  dennirivr 
to  a  declaration,  that  an  action  la}-  upon 
such  covenant,  no  ini])o»sibility  of  per- 
fonnancc  ap[)earinf^,  inasmuch  as  the  in- 
vestment might  at  any  rate  be  lawfully 
niad(^  in  the  corjjorate  names  of  the  ]ircscnt 
archdeacon,  vicar,  and  churclnvardens. 
And  Linkclale,  J.,  said,  in  givinj^  judp- 
ment :  "  The  defendants  allege  tiiat  they 
cannot  invest  this  stock,  because  the  par- 
ties named  in  the  bequest  are  not  corpo- 
rations for  that  purpose,  and  the  invest- 
ment couhl  not  be  eli'ectcd  at  tlie  liank. 
But  the  answer  is,  let  them  show  that  they 
have  api)lied  at  the  l)ank  and  to  the  proper 
officers,  and  that  it  is  impossible  to  make 
the  investment  with  their  consent.  I 
should  say  then  that  no  sufticient  answer 
was  given,  the  law  not  forbidding  the 
thing  to  be  done,  and  there  being  no  breach 
of  njoral  duty  involved  in  it,  and  the  de- 
fendants i)cing  under  covenant  to  peiform 
it.     But,  if  an  actual  impossibility  were 


sliown,  the  parties  might  go  to  a  court  ot 
eijuity  to  restrain  proceedings  in  an  action 
on  the  covenant,  they  showing  that  they 
had  done  all  in  their  power  to  fulfil  it. 
The  testator  in  this  case  must  be  taken  to 
have  known,  when  he  covenanted,  whether 
the  law  would  permit  a  fulfilment  of  the 
cf)venant  or  not ;  or,  perhaps  it  should 
rather  be  said,  whether  the  course  of  prac- 
tice would  or  would  not  allow  it  to  be  car- 
ried into  effect."  —  So  it  will  be  no  excuse 
for  the  non-performance  of  an  agreement 
to  deliver  goods  of  a  certain  (piantity  or 
(juality,  that  they  could  not  be  obtained  at 
the  particular  season  when  the  contract 
was  to  be  executed.  Gilpins  r.  Consequa, 
1  Pet.  C.  C.  91  ;  Youqua  v.  iS'ixon,  id. 
221. 

{<))  Thus  a  promise  to  procure  the  con- 
sent of  a  landlord  to  the  assignment  of  a 
lease,  is  binding.  Lloyd  r.  Crisjjc,  ."> 
Taunt.  249.  And  where  one  of  several 
l)artnei-s  in  a  ^finii  agreed  to  introduce  the 
])laintiff  (a  stranger)  into  it,  it  was  decided 
that  the  agreement  was  valid,  although 
the  other  partners  were  ignorant  of  its  ex- 
istence, and  their  assent  was  of  course 
essential  to  the  admission  of  the  jdaintitf. 
McNeill  V.  Kecd,  2  Moore  &  S.  89,  S.  C. 
9  liing.  G8. 

[4f)7] 


386*  THE    LAW    OF    CONTRACTS.  [BOOK   II. 

are,  generally  at  least,  cases  in  which  the  consideration  was  open 
to  the  objection  of  illegality,  (h) 

By  Code  Nap.  B.  3,  tit.  3,  ch.  4,  s.  1,  it  appears  that  while  a 
promise  to  do  an  impossible  thing  is  null,  a  promise  nnt  to  do 
an  impossible  thing  is  a  sufficient  foundation  for  an  obligation 
which  rests  upon  it.  We  have  no  such  distinction  in  the  com- 
mon law. 


SECTION     XIV. 

FAILURE    OF    CONSIDERATION. 

Where  the  consideration  appears  to  be  valuable  and  sufficient, 
but  turns  out  to  be  wholly  false  or  a  mere  nullity,  or  where  it 
may  have  been  actually  good,  but  before  any  part  of  the  con- 
tract has  been  performed  by  either  party,  and  before  any  benefit 
has  been  derived  from  it  to  the  party  paying  or  depositing  money 
for  such  consideration,  the  consideration  wdiolly  fails,  there  a 
promise  resting  on  this  consideration  is  no  longer  obligatory, 
and  the  party  paying  or  depositing  money  upon  it  can  recover 
it  back,  (i)  But  where  the  *consideration  fails  only  in  part, 
principles  analogous  to  those  which  govern  an  inquiry  into  the 
adequacy  of  a  consideration  would  be  applied  to  it.  If  there 
were   a   substantial  consideration   left,  although   much  dimin- 

(A)  Tims  iii  Harvey  v.  Gibbons,  2  Lev.         (<)  Woodward   r.    Cowing;,    13   Mass. 

161,  which  was  a  writ  of  error  on  a  jiulg-  216  ;  Moses  v.  Macferlan,  2  Burr.  1012  ; 

ment    in    Shrewsburv   court,   where    the  Spring  v.  Coffin,  10  Mass.  34  ;  Lacostc  v. 

plaintiff  declared  tlntt  he  being  bailiff  to  ilotard,  1  Eep.  Const.  Ct.  467  ;  Wharton 

J.  S.,  tlie  defendant,  in   eonsidc'ration  that  r.  O'llara,  2  N.  &  McCord,  65  ;  Pettibone 

he  would  dischuiye  htm  of  £20  due  to  J.  S.,  v.  lloberts,  2  Root,  258 ;  Boyd  v.  Andcr- 

promised  to  expend  £40  in  repairing  a  son,  1  Overton,  438  ;  Murray  v.  Carrct,  3 

barge    of   the    pUaintiffs  ;  —  verdict    and  Call,  373;  Treat  r.  Orono,  26  Maine,  217; 

judgment  for  the  plaintiff,  npon  ?;on  as-  Sanford  v.  Dodd,  2  Day,  437 ;  Colville  v. 

su7npsit,  were  reversed,  the  consideration  Besley,   2    Denio,    139.     The   failure   of 

being  ilhfial,  for  the  plaintiff  cannot  dis-  consideration  must  be  tot(d.     Charlton  v. 

charge  a  debt  due  to  his  master.    Although  Lay,  5   Humph.  496  ;  Dean  v.  Mason,  4 

this  decision  is  sometimes  cited  as  showing  Conn.  428.     The  measure  of  damages  in 

that  a  contract  is  void  if  the  consideration  such  a  case  is  the  sum  paid  ;  no  allowance 

is  impossible,  yet  it  may  be  rested  more  is  to  be  made  for  the  phiintiff's  loss  and 

properly  on  the  ground  that  the  consider-  disappointment.     Necl  v.  Decns,  1  N.  & 

ation  was  illegal.     The  same  may  be  said  JlcCord,  210. 
of  Nerot  v.  Wallace,  3   T.  II.   17,  supra, 
n.  (c),  p.  382. 

[408] 


en.  I.] 


CONSIDERATIOX. 


*387 


ished,  it  would  still  suffice  to  sustain  the  contract.  But  if  the 
diminution  or  failnre  were  such  as  in  effect  and  reality  to  take 
away  all  the  value  of  the  consideration,  it  would  be  regarded  as 
one  that  had  wholly  failed.  But  if  the  consideration,  and  the 
agreement  founded  upon  it,  both  consisted  of  several  parts,  and 
a  part  of  the  consideration  failed,  and  the  a])propriate  part  of 
the  agreement  could  be  apportioned  to  it,  then  they  might  be 
treated  as  several  contracts,  and  a  recovery  of  money  paid  be 
had  accordingly,  (j)  It  is  often  difficult  to  say  whether  a  *con- 
sideration  is  divisible  and  capable  of  apportionment,  or  so  en- 
tire that  it  must  stand  or  fall  together,  (/i)     Perhaps  no  better 


\ 


(j)  Franklin    v.   Miller,  4  Afl.  &  El. 
605",  Litlhdith',  J.     In  this  case  the  decla- 
ration   stated    that    defendant,    being   in- 
debted to  certain  persons,  agreed  to  repay 
the  plaintiff  the  amount  of  all  accounts 
wiiich  he  sliould  settle  for  defendant ;  and 
also  to   pay  plaintiff  .(.'40   a   cjuarter  on 
stated  days,  till  the  said  delits  should  be 
fully  settfcii ;  and  plaintifi'  agreed  to  ad- 
vance to  defendant  .£1  per  week,  and  cer- 
tain other  sums,  out  of  the  sums  of  .£40 ; 
that,  in  consideration  of  i)lainti(rs  ])roin- 
ise,  defeiulant  agreed  to  perform  the  con- 
tract on  his  pait ;  that  jjlaintiff  paid  debts 
for  defendant  to  divers  persons,  (naming 
them,)  to  the  amount  of    £281  ;  that  the 
%vli()!e  amount  of  delits  was  not  yet  .set- 
tled; and  that   several   sums  of  .£40  had 
become    due    from    defendant    under   the 
agreement,  which  iiad  been   paid  to  the 
amount  of  .£160  oidy,  but  the  ixst  were 
unpaid.     Plea,  as  to  two  of  the  sums  of 
.£40,  that,  before  they  became  due,  ])lain- 
titf  had  omitted  to  pay  certain  of  the  dclits 
due  to   creditors    of  defendant,    (naming 
them,)  other  than  tlie  creditors   named  in 
the  declaration,  which  he  might  have  paid  ; 
and  hud  also  omitted,  after  the  last  pay- 
ment of    £40,   to  ]iay  defendant  £\  per 
week  ;  wherefore  defendant,  in  a  reason- 
ai)le   time,   and    iicfore   the   two  sums   in 
question  were  due,  rescinded  the  contract. 
Kcplication,  tiiat,  before  and  at  the  time 
of  the  last  pavment  of  £40,  defendant  was 
indebted  to  |>laintiff  in  the  sum  of  .£50  and 
more,  in  resju'ct   of  the   moneys  paid  ])y 
plaintiff  for  defendant  as  in  the  first  count 
mentioned ;  and   that   the  said    .£40   was 
insufficient   to   discliarge   the   amount  in 
which  defendant  was  so  indei)ted  to  plain- 
tiff,   and    for   which    the    agreement  was 
a  security.     Held,  that  the  plea  was  bad, 

VOL.  I.  35 


as  showing,  at  most,  oidy  a  partial  failure 
of  performance  by  the  ))laintiff,  whicii  did 
not  authorize  tlie  defendant  to  rescind  the 
contract.  —  So  in  Kitchie  v.  Atkinson,  10 
East,  295,  where  the  master  and  the 
freighter  of  a  vessel  of  400  tons  mutually 
sigreed  in  writing  that  tlie  ship,  being 
every  way  fitted  for  the  voyage,  should 
with  all  convenie7)t  speed  jiroceed  to  St. 
retersl)urg,  and  there  load  from  the 
freighter's  factors  a  cowjilele  cargo  of  hemp 
and  iron,  and  ])roceed  therewith  to  London, 
and  dilicer  lite  same  on  heiiuj  paid  freight 
for  hemp  5/.  per  ton,  for  iron  5j.-.  a  ton, 
&c.,  one  half  to  lie  paid  on  right  delivery, 
the  other  at  three  months  ;  lu-ld  that  the 
delivery  of  a  roniiihtc  cargo  was  not  a  con- 
dition precedent ;  but  that  the  master 
might  recover  freight  for  a  short  cargo  at 
the  stipulated  rates  per  ton  ;  the  freighter 
having  his  remedy  in  damages  for  such 
sliort  delivery.  —  Likewise  in  Roberts  v. 
Ilaveiock,  3B.  &  Ad.  404,  a  ship  outward 
liound  witii  goods,  bring  danuigcil  at  sea, 
put  into  a  harbor  to  receive  some  repairs 
wiiich  had  become  necessary  for  the  con- 
tinuance of  the  voyage,  and  a  shipwright 
was  engaged,  and  undertook  to  ]iut  her 
into  thorougli  repair.  Before  this  was 
comjileted  he  recpiired  payment  for  the 
work  alivady  done,  witiiout  which  he  re- 
fused to  proceed  ;  and  the  vessel  re- 
nniined  in  an  unlit  state  for  sailing.  Held, 
that  the  shipwright  might  maintain  an 
action  for  the  work  already  done,  though 
the  re|)air  was  incomplete,  and  the  vessel 
thereby  kept  from  continuing  her  voyage, 
at  the  time  when  the  action  was  brought. 
(k)  Thus  in  Adiard  v.  Booth,  7  C.  & 
P.  108,  it  was  held,  that  where  a  printer 
has  been  emj)loyed  to  jirint  a  work,  of 
which  the  imi)ression  is  to  be  a  certain 

[409] 


388' 


THE   LAW   OF   CONTRACTS. 


[book  II 


rule  can  be  given,  than  that  if  the  thing  to  be  done  be  in  its 
own  nature  separable  and  divisible,  and  there  be  no  express 
stipulation  or  necessary  implication  which  makes  it  absolutely- 
one  thing,  and  that  part  which  fails  may  be  regarded,  to  use  the 
language  of  the  court  in  one  case,  "  not  as  a  condition  going  to 
the  essence  of  the  contract,"  (/)  in  *such  case  the  failure  does  not 
destroy  the  rights  growing  out  of  the  performance  of  the  residue. 


number  of  copies,  if  a  fire  break  out  and 
consume  the  premises  before  the  whole 
number  have  been  worlved  off,  the  printer 
cannot  recover  any  thiiiri^,  althou,L''h  a  part 
have  actually  been  delivered.  While  in 
Cutler  V.  Close,  5  C.  &  P.  337,  wliere  a 
party  contracted  to  supply  and  erect  a 
warm  air  apparatus,  for  a  certain  sum,  it 
was  held,  in  an  action  for  the  price,  (the 
defence  to  which  was,  that  the  apparatus 
did  not  answer,)  tliat,  if  the  jury  tliounht 
it  was  substantial  in  the  main,  though  not 
quite  so  complete  as  it  might  be  imder 
the  contract,  and  could  be  made  good  at 
a  reasonable  rate,  the  proper  course  would 
be  to  find  a  verdict  for  the  plaintiff,  de- 
ducting such  sum  as  would  enable  the 
defendant  to  do  what  was  requisite.  This 
question  frequently  arises  on  special  con- 
tracts to  do  certain  work,  according  to 
certain  plans,  or  certain  specifications, 
and  the  contract  is  not  strictly  complied 
with.  Here  is  a  partial  failure  of  consid- 
eration, and  the  plaintiff,  in  seeking  to 
recover  for  the  labor  and  materials  ex- 
pended, will  be  compelled  to  deduct  for 
his  partial  failure,  and  the  defendant  may 
rely  upon  this  in  reduction  of  damages, 
and  is  not  driven  to  his  cross  action. 
Chapel  V.  Hiekes,  2  C.  &  M.  214.  And 
in  such  case  the  plaintiff  is  not  entitled  to 
the  actual  A'alue  of  the  work,  per  se,  but 
only  the  agreed  price  minus  such  a  sum 
as  would  complete  the  work  according  to 
the  contract.  Thornton  v.  Place,  1  INI.  & 
R.  218.  In  the  case  of  Ellis  v.  Hamlin, 
3  Taunt.  53,  it  was  hid  that  if  a  builder 
undertakes  a  work  of  sjiecified  dimensions 
and  materials,  and  deviates  from  the 
specification,  he  cannot  recover,  upon  a 
quantum  valebant,  for  the  work,  labor,  and 
materials. 

(/)  Lucas  V.  Godwin,  3  Bing.  N.  C. 
746,  Bosanquet,  J.  In  that  case,  the  plain- 
tiff contracted  to  build  cottages  by  the 
10th  of  October;  they  were  not  finished 
till  the  15th.  Defendant  having  accepted 
the  cottages,   it   was  held  that   plaintiff" 

[410] 


might  recover  the  value  of  his  work,  on  a 
declaration  for  work  and  labor  and  ma- 
terials. —  The  former  practice  of  compel- 
ling a  party  to  pay  the  full  sum  for  speci- 
fied labor,  and  then  driving  him  to  his 
cross  action  if  the  work  was  not  done  ac- 
cording to  contract,  was  alhuled  to  bv 
Parke,  B.,  in  Mondel  v.  Steel,  8  M.  &  AV. 
870.  In  that  case  it  was  held,  after  ma- 
ture consideration,  that  in  all  actions  for 
goods  sold  and  delivered  witli  a  warranty, 
or  for  work  and  labor,  as  well  as  in  ac- 
tions for  goods  agreed  to  be  supplied  ac- 
cording to  a  contract,  it  is  competent  for 
the  defendant  to  show  how  much  less  the 
subject-matter  of  tlie  action  was  worth  by 
reason  of  the  breach  of  tlie  contract ;  and 
to  the  extent  that  he  obtains,  or  is  capable 
of  obtaining,  an  abatement  of  price  on 
that  account,  he  must  be  considered  as 
having  received  satisfitction  for  the  breacli 
of  contract ;  and  he  is  jirecluiled  from  re- 
covering in  another  action  to  that  extent, 
but  no  more.     See  also,  Cliapel  v.  Hiekes, 

2  C.  &  M.  214.     So  in  Allen  v.  Cameron, 

3  Tyrwh.  907,  where  the  plaintiff  con- 
tracted to  sell  and  plant  trees  on  the  de- 
fendant's land,  and  also  to  keep  them  in 
order  for  two  years  next  after  the  planting, 
it  was  held,  that  evidence  of  non-])erform- 
ance  by  the  plaintiff  of  awy  part  of  his  con- 
tract, by  which  tlie  trees  had  become  of 
less  value  to  the  defendant,  was  admissi- 
ble to  reduce  the  damages  in  an  action  on 
the  agreement  for  their  price,  and  for 
planting  them.  —  Lord  Ell<nhoroii(/lt  seems 
to  have  laid  down  the  just  rule  on  this 
subject,  in  Farnsworth  v.  Garrard,  1  Camp. 
38.  It  was  there  held,  that  where  the 
jilaintiff  declares  on  a  qitantum  meruit  for 
work  and  labor  done  and  materials  found, 
the  defendant  may  reduce  the  damages, 
by  showing  that  the  work  was  imjiroperly 
done  ;  and  may  entitle  himself  to  a  verdict 
by  showing  that  it  was  wholly  inadequate 
to  answer  the  purpose  for  which  it  was 
undertaken  to  be  performed. 


en.  I.] 


CONSIDERATION. 


^389 


But  the  other  party  may  have  his  claim  or   action  for  damages 
arising  from  such  failure,  (m) 


SECTION     XV. 

RIGHTS   OF   A   STRANGER   TO   THE   CONSIDERATION. 

In  some  cases,  in  which  the  consideration  did  not  pass  di- 
rectly from  a  plaintiff,  and  the  promise  was  not  made  directly 
to  him,  it  has  been  made  a  question  how  far  he  *might  avail 
himself  of  it,  and  bring  an  action  in  his  own  name,  instead  of 
the  name  of  the  party  from  whom  the  consideration  moved, 
and  to  whom  the  promise  was  made.  It  seems  to  have  been 
anciently  held  (n)  as  a  rule  of  law,  (though  not  universally 
so.)  (o)  that  no  stranger  to  the  consideration  of  an  agreement 


((/))  Altlioup:h  it  was  formerly  held  that 
the  only  reniefly  was  by  cross  action,  Tyc 
I'.  Gwyiine,  2  Camp.  346  ;  Mojrfrriflfie  v. 
Jones,  .'5  id.  .38,  yet  the  jiarty  may  now 
resort  to  the  cross  action  or  not,  at  his 
election.  This  suhject  was  examined  witli 
much  altility  and  at  great  lenj^th  liy 
iJeirctj,  J.,  in  Harrington  r.  Stratton,  22 
Pick.  .510,  where  it  was  held  that  in  an 
action  hy  the  payee  against  the  maker  of 
a  promissory  note  given  for  the  price  of  a 
ciiattel,  it  is  competent  for  tiie  maker  to 
prove,  in  rcduiiidii  of  damages,  that  the 
sale  was  effected  l)y  means  of  false  rejjrc- 
sentations  of  the  value  of  the  ciiattel,  on 
the  jiart  of  the  payee,  althongli  tlie  chattel 
has  not  heen  returned  or  tendered  to  him. 
And  the  learned  judge,  in  the  course  of 
his  opinion,  said  :  "  'l"he  strong  argument 
for  the  admission  of  sueii  evidence  in  re- 
duction of  damages  in  cases  like  tiic  pres- 
ent, is,  that  it  will  avoid  circuity  of  action. 
It  is  always  desiralilc  to  prevent  a  cross 
action  where  full  and  complete  justice  can 
he  done  to  the  parties  in  a  single  suit  ; 
and  it  is  upon  this  ground  that  the  courts 
have  of  late  heen  dispf)se(l  to  exteiul  to 
the  greatest  length,  compatible  with  the 
legal  rights  of  the  parties,  the  principle  of 
allowing  evidence  in  defence  or  in  reduc- 
tion of  damages,  to  l)e  introduced,  rather 
than  to  compel  the  defenilant  to  resort  to 
his  cross  action.     As  it  seems  to  us,  the 


i 


same  purpose  will  be  further  advanced, 
and  with  no  additional  evils,  by  adopting 
a  rule  on  this  subject  equally  broad  in  its 
application  to  cases  of  actions  on  promis- 
sory notes,  between  the  original  parties  to 
the  same,  as  to  actions  on  the  original 
contract  of  sale,  and  holding  that,  in  either 
ease,  evidtticc  of  false  representaticms  as 
to  the  qiinity  or  character  of  the  article 
sold,  may  be  given  in  evidence  to  reduce 
the  damages,  although  the  article  has  not 
been  returned  to  the  vendor."  —  See  also. 
Mixer  r.  Coburn,  11  Met.  S.'iO  ;  IVrley  ;•. 
Halch,  2.3  Pick.  286  ;  Hammat  v.  Emer- 
son, 27  Maine,  .308;  Coburn  r.  Ware,  .30 
Maine,  202  ;  Spalding  r.  Vandercook,  2 
Wend.  431  ;  Drew  r.  Towle,  7  Fo<t.  412; 
Albertson  v.  Halloway,  IfiGeo.  377.  The 
cases  of  Scudder  v.  Andrews,  2  JI'Lean, 
404 ;  Pierce  v.  Cameron,  7  Rich.  Law, 
114;  Pulsifer  >:  llotchkiss,  12  Conn.  2.34, 
and  some  others  seem,  however,  not  in 
accordance  with  this  princijile.  See,  how- 
ever, as  to  this  last  case,  Andrews  r. 
Wheaton,  23  Conn.  112. 

(u)  Crow  I'.  Koirers,  1  Str.  .'>92  ; 
I?ourne  v.  Mason,  1  Vent.  6,  2  Keb.  4.57  ; 
Hull.  N.  P.  134.  And  in  the  late  case  of 
.I<mes  r.  Kobinson,  1  Kxch.  456,  P<irke, 
1?.,  says:  "It  is  true  that  no  stranger  to 
the  consideration  can  sue." 

(o)  Dutton  V.  Poole,  1  Vent.  318,  332; 
T.  Jones,  103,  2  Lev.  210. 

[411] 


390* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


could  have  an  action  on  such  agreement,  although  it  were  made 
expressly  for  his  benefit;  and  this  rule  has  been  recognized  and 
enforced  in  modern  times.  (/?)  But  it  is  certain  that  if  the 
actual  promisee  is  merely  the  agent  of  the  party  to  be  benefited, 
that  party  may  sue  upon  the  promise,  whether  his  relation  to 
and  interest  in  the  agreement  were  known  or  not.  (q)  This, 
however,  rests  upon  the  ground  that  the  consideration  actually 
moves  from  such  party,  and  that  he  cannot  be  regarded  as  a 
stranger  to  it.  But  it  seems  to  be  held  in  some  recent  cases 
that,  while  the  rule  itself  is  not  denied,  it  would  generally  be 
held  inapplicable  where  the  beneficiary  has  any  concern  what- 
ever in  the  transaction,  (r)  In  some  cases,  the  actual  promisee 
would  *be  considered  only  the  agent  of  the  beneficiary,  and  in 
others  the  beneficiary  would  be  regarded  as  the  trustee  of  the 
party  to  whom  the  promise  was  directly  made,  and,  as  such 
trustee,  might  maintain  an  action  in  his  own  name,  (s)     In  this 


(p)  Price  V.  Easton,  4  B.  &  Ad.  433, 
1  Nev.  &  Mann.  303.  In  this  case  the 
dechiration  stated  tiiat  W.  P.  owed  the 
phiintiff  13/.,  and  that  in  consideration 
thereof,  and  tiiat  W.  P.,  at  the  defendant's 
request,  had  promised  defendant  to  work 
for  iiim  at  certain  wages,  and  also,  in  con- 
sideration of  W.  P.  leavinn-  the  amount 
■which  might  be  earned  bv  liim  m  the  de- 
fendant's hands,  he,  the  defendant,  under- 
took and  promised  to  pay  the  plaiiititf  the 
said  sum  of  13/.  Averment,  that  W.  P. 
performed  his  part  of  tlie  agreement. 
Judgment  arrested,  because  the  plaintiff 
was  a  stranger  to  the  consideration.  And 
Littledak,  J.,  said  :  "  This  case  is  precisely 
like  Crow  v.  Rogers,  and  must  be  gov- 
erned by  it." 

(q)  As  in  the  familiar  instance  of  prin- 
cipals suing  for  goods  sold  by  their  fac- 
tors, who  may  be  supposed  perhaps  to 
have  been  tlie  principals,  and  to  whom 
alone  the  promise  was  made.  Hornby  v. 
Lacy,  6  M.  &  S.  166;  Coppin  v.  Craig,  7 
Taunt.  243  ;  Moriis  v.  Cleasby,  1  AI.  & 
•S.  576. 

(r)  Thus,  in  the  recent  case  of  Lillv  v. 
Hays,  1  Nev.  &  Perry,  26,  .5  Ad.  &"E1. 
550,  where  it  was  lif:kl  that  if  A  remits 
money  to  B  to  pay  C,  and  B  promises  C 
to  ])ay  it  to  him,  C  can  maintain  an  action 
against  B  for  money  had  and  received. 
And  Pattesoii,  J.,  there  said  :  "  The  only 
question  in  this  case  is,  whether  there  is 

[412] 


a  consideration  moving  from  the  plaintiff. 
It  is  said  that  such  is  tlie  rule  of  law 
hitherto  adhered  to ;  and  to  that  I  agree. 
But  in  an  action  for  money  had  and  re- 
ceived there  seldom  is  a  direct  considera- 
tion moving  from  the  plaintiff.  Suppose 
the  case  of  money  sent  to  a  general  agent, 
who  had  promised  to  pay  over  the  money 
sent  to  him, — in  an  action  against  him 
by  the  person  for  whose  use  this  money 
was  sent,  would  it  be  any  answer  for  hira 
to  say,  that  the  consideration  did  not 
move  from  the  plaintiff?  Again,  —  Sup- 
pose money  is  sent  to  a  banker  for  the 
payment  of  certain  debts, —  does  not  the 
consideration  indirectly  move  from  the 
creditor  whose  particular  dei)t  is  to  be 
]iaid  by  the  delnor's  sending  the  money  ? 
The  debtor  may  be  considered  as  the 
agent  of  the  creditor,  and  the  money  paid 
hidii-ectly  to  the  banker  by  the  latter.  So 
here,  the  defendant,  though  not  the  gen- 
eral agent,  became  the  agent  of  Wood,  in 
this  transaction  ;  therefore,  the  considera- 
tion did  move  from  the  phiintiif,  through 
the  instrumentality  of  Wood."  —  See  also, 
Jones  V.  Robinson,  1  Exch.  454  ;  Thomas 
V.  Thomas,  2  Q.  B.  85  ;  Hinkley  r.  Fowler, 
15  jNIaine,  285;  Carnegie  v.  Morrison,  2 
Met.  401  ;  Doljjh  v.  White,  2  Kern.  296. 
(s)  In  Pigott  V.  Thompson,  3  B.  &  P. 
149,  Lord  Alvanley  is  reported  to  have 
said  :  "  It  is  not  necessary  to  discuss 
whether  if  A  let  hmd  to  B,  in  considcra- 


en.  I.] 


CONSIDERATION. 


*391 


country,  the  riglit  of  a  third  party  to  bring  an  action  on  a 
promise  made  to  another  for  his  benefit  seems  to  be  somewhat 
more  positively  asserted ;  (/)  and  perhaps  it  would  be  safe  to 
consider  this  a  prevailing  rule  with  us. 

But  where  the  promise  is  made  under  seal,  and  the  action 
must  be  debt  or  covenant,  then  it  must  be  brought  in  the  name 
of  the  party  to  the  instrument,  and  a  third  party  for  whose 
benefit  the  promise  is  made  cannot  sue  upon  it.  (ii) 


SECTION    XVI. 

THE   TIME    OF   THE   CONSIDERATION. 

Considerations  may  be  of  the  past,  of  the  present,  or  of  the 
future.  When  the  consideration  and  the  promise  founded  *upon 
it  are  simultaneous,  then  the  consideration  is  of  the  present 
time ;  the  whole  agreement  is  completed  at  once,  and  the  con- 
sideration and  the  promise  are  concurrent.  When  the  consid- 
eration is  to  do  a  thing  hereafter,  it  is  said  to  be  executory; 
when  the  promise  to  do  this  is  accepted,  and  a  promise  in  re- 
turn founded  upon  it,  this  latter  promise  rests  on  a  sufficient 
foundation,   and   is  obligatory.       When    the    consideration    is 


I 


tion  of  wliirli  the  latter  promises  to  pay 
tlic  rent  to  C,  )iis  executors  and  adininis- 
trators.  C  may  maiiitaiii  an  action  on  tliat 
l)rf)niise.  I  liave  little  doulit,  however, 
that  ihe  action  nii;;lit  lie  maintained,  and 
that  the  considcratiiin  would  lie  siitTicicnt ; 
tliout;h  my  hrothers  seem  to  think  diHer- 
ently  on  this  point.  It  ajipears  to  me 
that  C  would  he  oidy  a  trustee  for  A, 
who  mi;:ht  for  some  reason  he  desirous 
that  the  money  should  he  paid  into  the 
liands  of  C.  In  case  of  marria<j:e,  it  is 
often  necessary  to  make  contracts  in  this 
manner,  and  the  personal  action  is  jiiveii 
to  tlic  trustees  for  the  benefit  of  the  feme 
covert." 

(0  Sec  22  Am.  Jur.  16-20;  Tlind  v. 
lloldship,  2  Watts,  104  ;  Arnold  r.  Ly- 
man, 17  Mass.  400;  Hridire  r.  Nia^'ara 
In-^.  Co.  1  Hall,  247;  Jackson  r.  Mayo, 
11  Mass.  \:y2,u.ti.;  Ilinkley  c.  Fowler,  15 
Maine,  285  ;  Hall  i-.   Marston,  17  Mass. 

♦35 


575  ;  Felton  r.  Dickinson,  10  id.  287. 
This  que.stion  was  fully  examined  in  the 
late  ca.se  of  Carncpie  r.  Morrison,  2  Met. 
381,  hy  S/iuw,  C.  J.,  the  old  ea.se  of  But- 
ton V.  I'oole,  1  Vent.  .318,  hciufr  adopted 
as  fiood  law,  and  in  Brewer  r.  Dyer,  7 
Cush.  3.37,  the  same  doctrine  is  reaffirmed. 
—  In  like  manner  the  American  courts 
have  held  that  a  promise  to  three,  ujion  a 
consideration  movinj;  from  them  and  a 
fourth  person,  will  snpjiort  an  action  hy 
the  three.  Cahot  r.  Ilaskins,  .3  Pick.  83. 
See  also.  Farrow  r.  Timier,  2  A.  K. 
Marsh.  4;if)  ;  Crocker  v.  Hi;:f;ins,  7  Conn. 
347  ;  Miller  v.  Drake,  1  Caines,  45.  Sec 
nl.<o,  Ri;rclow  c.  Davis,  16  Barb.  561. 

(m)  Lord  Southampton  r.  I'rown,  6  15. 
&  C.  718;  Otily  r.  Ward,  1  Lev.  235; 
Sanders  v.  Filley,  12  Pick.  554;  Johnson 
r.  Fosier,  12  Met.  167  ;  Ilinkley  v.  Fow- 
ler, 15  Maine,  285. 

[413] 


392*  THE   LAW   OF   CONTRACTS.  [bOOK  II. 

wholly  past,  it  is  said  to  be  executed  ;  and  in  relation  to  con- 
siderations of  this  kind,  many  nice  questions  have  arisen. 

It  may  be  stated,  as  the  general  rule,  that  a  past  or  executed 
consideration  is  not  sufficient  to  sustain  a  promise  founded 
upon  it,  unless  there  was  a  request  for  the  consideration  pre- 
vious to  its  being  done  or  made.  This  request  should  be 
alleged  in  a  declaration  which  sets  forth  an  executed  consider- 
ation as  that  on  which  is  founded  the  promise  that  is  sought  to 
be  enforced.  Without  such  previous  request  a  subsequent 
promise  has  no  force;  because  the  consideration  being  entirely 
completed  and  exhausted,  it  cannot  be  considered  that  it  would 
not  have  been  made  or  given,  but  for  a  promise  which  is  subse- 
quent and  independent.  A  familiar  illustration  is  afforded  by 
the  case  of  a  guarantor.  If  one  lends  money  to  another,  and  at 
a  subsequent  time  a  tliird  party,  who  did  not  request  the  loan, 
and  is  not  benefited  by  it,  promises  to  see  that  it  is  repaid,  such 
promise  is  void,  because  no  consideration  passes  from  the  prom- 
isee to  the  promisor.  But  if  the  promisor  requests  the  loan, 
•or  if  his  promise  is  made  previous  to  the  loan,  or  at  the  same 
time,  then  it  will  be  supposed  that  the  loan  is  made  because  of 
the  promise.  It  will  also  be  supposed  that  the  promisor  is 
benefited  by  the  loan  because  he  requests  it,  or,  at  least,  that 
the  lender  parts  with  his  money  in  consequence  of  the  promise, 
and  this  is  a  detriment  to  him,  which  is  equally  good  by  way  of 
a  consideration. 

But  this  previous  request  need  not  always  be  express,  or 
proved,  because  it  is  often  implied.  As,  in  the  first  place,  where 
one  accepts  or  retains  the  beneficial  result  of  such  voluntary 
service.  Here,  the  law  generally  implies  both  a  previous  re- 
iquest  and  a  subsequent  promise  of  repayment.  *No  one  can 
compel  another  to  accept  a  gratuitous  and  unrequested  service  ; 
no  one  can  make  himself  the  creditor  of  another,  without  his 
•consent,  or  against  his  will.  But  if  that  other  chooses  to 
accept  such  service,  or  the  service  being  rendered  voluntarily, 
retains  all  the  benefit  thereof  to  himself,  this  puts  the  service  on 
the  same  footing,  in  the  law,  as  one  rendered  at  request,  and 
ifor  which  a  promise  is  made.  The  cases  where  goods  are  sup- 
[414] 


en.  I.] 


CONSIDERATION. 


^:I93 


plied  to  an  infant,  and  the  father  is  held  responsible,  often  fall 
within  this  rule,  (v) 

And,  in  the  second  place,  where  one  is  compelled  to  do  for 
another  what  that  other  should  do,  and  was  compellable  to  do. 
Here  also  the  law  implies  not  only  a  previous  request  that  the 
thing  should  be  done,  but  also  a  promise  to  compensate  for  the 
doing  of  it.  (w)     As  where  one  is  surety  for  *another,  and  pays 


(r)  Thus  in  Lawr.  Wilkin,  6  Ad.  &  El. 
718,  which  was  an  action  a;xainst  a  father 
for  frood.s  supplied  his  minor  son,  who  was 
away  at  school.  The  only  evidence  to 
char^rc  tlie  father  was,  that  "the  boy,  when 
he  went  home  for  the  holidays,  took  the 
clothes  with  him,  bnt  was  not  wearing; 
them  ;  and  that  he  returned  to  school  with 
them.  L'olcriil'ie,  J.,  said:  —  "The  de- 
fendant's son  was  sent  to  school  in  want 
of  clothes.  When  they  were  supplied,  and 
he  went  home  with  them,  we  arc  not  to 
jussumc  that  he  concealed  them.  My 
brother  Storhs,  admits  that,  if  the  father 
had  seen  them,  an  implied  authority 
woulil  be  shown."  So  in  the  FishmonL^er's 
Co.  r.  Robertson,  5  M.  &  G.  192,  Tni'hil, 
C.  J.,  said  if  ])ersons  receive  a  bcnelit  from 
a  contract  on  which  they  would  not  lie 
ori;;inally  boun<l,  this  would  bind  tbem, 
and  render  them  liable  for  the  fultilmcnt 
of  the  contract.  Doe  ;;.  Taniere,  |.'3  Jur. 
Hit.  So  where  one  built  a  school-house 
under  a  contract  with  ]>crsons  assuming;  to 
act  as  a  district  committee,  but  who  had 
in  fact  no  authority,  yet  a  district  school 
w;is  afterwards  kept  in  it  by  direction  of 
tlic  authorized  school  apent,  this  was  luld 
to  be  an  acceptance  of  the  house  by  the 
district,  and  they  were  held  liable  to  ])ay 
the  rca-;<)nable  value  of  the  builiiinfr-  Ab- 
bot r.  Hcrmon,  7  Greod.  (Bennett's  Ed.) 
118,  and  note.  See  also,  lUiticits  r.  Mor- 
ston,  20  .Maine,  275  ;  llayden  r.  Madison, 
7  Grecnl.  76  ;  Weston  r.Davis,  24  Maine, 
.174;  Hatch  v.  Turcell,  1  Foster,  .'544; 
Newell  V.  Hill,  2  Mete.  180.  So  if  a  con- 
veyance of  an  interest  in  land  be  made  in 
the  common  forni  of  a  ([uitclaim  deed, 
contaiiiin^r  this  stipidation,  —  "provided 
said  <;rantee  shall  pay  said  jxrantor  or  his 
assigns,  twenty-two  <lollars  atuuially  from 
this  date  on  demand  " —  until  the  hapjien- 
int;  of  a  certain  eveiu  ;  ami  the  jrrantce 
holds  under  the  deeil,  but  fills  to  make  the 
annual  payments  when  demanded  ;  the 
jrrautor  n/ay  sustain  an  action  of  assump- 
sit against   the  grantee,    to   recover   the 


money.  Huff  v.  Nickerson,  27  Maine, 
106.  —  But  if  one  build  a  house  for  his 
own  convenience  on  the  land  of  another, 
by  his  ])ermission,  there  is  no  im|died 
a<rreeinent  on  the  part  of  the  owner  of  the 
bind  to  pay  the  value  of  such  house. 
Wells  V.  Banister,  4  Mass.  514.  Neither 
can  a  school  district  be  held  liable  for  un- 
authorized repairs  uj)on  their  school-house, 
from  tlie  fact  that  they  afterwards  used 
the  house  ;  for  this  accejitance  and  hold- 
ing of  the  re])airs  cannot  be  considered  as 
volimtary,  because  the  house  could  not 
well  be  used  without  making  use  of  the  re- 
pairs,    l^avis  i".  Bradfor'l,  24  Maine,  .'349. 

—  So  the  law  will  not  imply  a  ])romise  on 
the  part  of  a  paujier  to  pay  from  his  estate 
UKjiicys  expended  by  the  town  of  his  set- 
tlement for  his  sujiport.  Charlestown  v. 
Hubbard,  9  New  Hamp.  195;  Deer  Isle 
V.  Eaton,  12  ^lass.  328. 

(('•)  .Jefferys  r.  Gurr,  2  B.  &  Ad.  8.3.3; 
Pownal  ?•.  Fcrrand,  6  B.  &  C.  439.  In 
this  case  the  indorser  of  a  bill,  being  sued 
by  the  holder,  |)aicl  him  part  of  the  sum 
mentioned  in  the  bill  ;  audit  was /»7f/ that 
he  might  recover  the  same  from  the  ac- 
ceptor in  an  action  for  money  jiaid  to  his 
use.  And  Da/jlei/,  J.,  said  :  "  The  law  is 
that  a  party,  by  voluntarily  paying  the 
deitt  of  another,  does  not  acipiireany  right 
of  action  against  that  other  ;  but  if  I  pay 
your  delit  i)ecause  I  am  forced  to  do  so, 
then  I  may  recover  the  same  ;  for  the  law 
raises  a  pronusc  on  the  j)art  of  the  person 
whose  del»t  I  p.ay,  to  reimburse  me.  That 
prini'iple  was  fullv  established  in  the  case 
of   E.\all    ?•.    I'artridge,    8    T.    R.    .308." 

—  Grissell  r.  Roiiinson,  3  Bing.  N.  C. 
10.  In  this  case  the  plaintiffs,  having 
agreetl  with  the  defendant  to  give  him  a 
lease  of  certain  premises,  caused  their  at- 
torney to  prepare  the  lease,  and  jiaid  him 
for  it ;  andafterwanls  brought  their  action 
against  the  defendant  to  recover  the 
amount  so  paid,  and  declared  in  assumpsit 
for  money  paiil  by  tbem  for  the  defend- 
ant's use.     It  was  /«/(/  that  they  were  en- 

[415] 


394* 


THE   LAW    OF    CONTRACTS. 


[book  n. 


the  debt  which  the  other  owes.  Here  the  surety  can  recover 
what  he  pays,  without  proving  that  the  principal  debtor  either 
requested  him  to  pay  the  money,  or  promised  to  repay  him  ;  for 
the  law  implies  all  this.  In  receiving  him  as  surety,  or  in 
requesting  him  to  become  his  surety,  he  will  be  considered  as 
having  requested  him  to  pay  the  debt;  and  if  such  request  to 
pay  the  debt  were  express,  the  general  principles  of  law  would 
imply  the  promise  of  repayment.  The  compulsion  in  this  case 
must  be  a  legal  one ;  or,  in  other  words,  there  must  be  an  obli- 
gation which  the  law  will  enforce,  (r) 

*And,  in  the  third  place,  where  one  does  voluntarily,  and 
without  request,  that  which  he  is  not  compellable  to  do,  for  an- 
other who  is  compellable  to  do  it.  As  if  one  who  is  not  surety, 
nor  bound  in  any  way,  pays  a  debt  due  from  another.  He  has 
not  the  same  claim  and  right  as  if  he  had  been  compellable  to 
pay  this  debt.  For  now  the  law,  if  there  be  a  subsequent 
promise  to  repay  the  money,  will  indeed  imply  the  previous 
request,  as,  if  there  had  been  a  previous  request,  it  would  have 
implied  a  subsequent  promise;  but  it  will  not  imply  both  the 
promise  and  the  request,  as  in  the  former  case.  (//)      The  reason 


titled  to  recover,  the  evidence  showing 
that  it  was  tlic  custom  for  the  hmdlord's 
attorney  to  draw  the  lease,  and  for  the  les- 
see to  pay  for  it.  Park,  J.,  said  :  "  As  tlie 
plaintiti's  were  liable  to  their  own  attorney 
in  the  first  instance,  and  all  the  evidence 
sliows  that  accordinn'  to  the  custom,  the  de- 
fendant is  ultimately  hound  to  pay  for  the 
lease,  he  must  he  taken  to  have  impliedly 
assented  to  ihe  payment  made  by  the  ])lain- 
tiffs,  and  the  action  lies  for  money  paid  to 
his  use."  See  also  Uavies  v.  Hum])hreys, 
C  M.  &  W.  153. 

(.r)  I'itt  V.  Purssord,  8  M.  &  W.  538. 
In  this  case  one  of  two  persons,  who,  as 
sureties  for  a  third,  signed  together  with 
the  ijrincipal  a  joint  and  several  jiromis- 
sorv  note,  on  the  note  iiecomingdue,  paid 
the  amount,  though  no  demand  had  been 
made  or  action  brought  against  him  l>y  the 
holder.  It  was  licid  that  such  ])ayment 
couhl  not  be  considered  voluntary,  and 
that  he  might  sue  his  cosurety  for  contri- 
liution.  And  Alderson,'Q.,  said:  "This 
is  not  a  voluntary  j)aynient,  nor  is  it  like 
the  case  where  one  is  lialilc  as  princi]jal 
and  another  as  surety.     Here  the  sureties 

[416]' 


are  not  liable  in  defitult  of  the  principal ; 
they  are  all  primarily  liable,  and  are  all 
equally  so.  This  was  not  a  payment 
made  voluntarily,  but  was  a  payment  in 
discharge  of  a  debt  due  on  an  instrument 
on  which  the  defendant  was  liable." 

(//)  Wing  r.  Mill,  1  B.  &  Aid.  104. 
In  this  case  a  pauper,  residing  in  the  par- 
ish of  A,  received,  during  illness,  a  weekly 
allowance  from  the  parish  of  B,  where  he 
was  settled.  Held,  that  an  apothecary, 
who  had  attended  the  pauper,  might 
maintain  an  action  for  the  amount  of  his 
bill  against  the  overseer  of  B,  who  ex- 
pressly ]iromised  to  pay  the  same. — But 
w  ithout  such  express  promise,  such  action, 
it  seems,  could  not  be  maintained.  Payn- 
ter  r.  Williams,  1  Cr.  &  M.  819.  In  this 
case  a  pauper  whose  settlement  was  in  the 
parish  of  A,  resided  in  the  parish  of  B, 
and  whilst  there  received  relief  from  the 
parish  of  A,  which  relief  was  afterwards 
discontinued,  the  overseers  objecting  to 
pay  any  more  unless  the  pauper  moved 
into  his  own  parish.  The  pauper  was 
subsequently  taken  ill  and  attended  by 
an  apothecary,  who,  after  attending  him 


en.  I.] 


CONSIDERATION. 


*395 


is,  that  the  debtor  shall  not  be  obliged  to  accept  another  party 
as  his  creditor  without  his  consent.  He  owes  some  one;  and 
he  may  have  partial  defences,  or  other  reasons  for  wishing  to 
arrange  the  debt  with  him  and  not  another;  and  if  another 
comes  in  without  request  or  necessity  and  pays  the  debt,  the 
debtor  is  not  obliged  to  substitute  him  in  the  place  of  his  orig- 
inal creditor  *unless  he  chooses  to  do  it.  But  he  may  do  this 
if  he  so  wishes  ;  and  if,  after  the  debt  is  paid  by  this  third  party, 
the  debtor  choose  to  promise  him  repayment,  he  is  held  to  such 
promise,  and  the  consideration,  although  executed,  is  sufficient, 
for  the  law  implies  a  previous  request;  or,  what  is  the  same 
thing,  will  not  permit  the  debtor  to  deny  the  allegation  of  such 
request  in  the  declaration. 

It  is,  however,  to  be  observed,  that  where  the  law  implies 
both  the  previous  request  and  also  a  subsequent  promise,  there 
no  other  promise  tlfUn  that  which  is  so  implied  can  be  enforced, 
if  the  consideration  for  the  promise  be  an  executed  one.  (c)     In 


nine  weeks,  sent  a  letter  to  the  overseers 
of  A,  npon  the  reeeipt  of  wliieli  they  di- 
rected the  allowance  to  he  renewed,  and 
it  was  continued  to  the  time  of  the  jian- 
per's  decease.  Held,  tiiat  the  overseers  of 
A  were  lialile  to  pay  so  imich  of  the  apoth- 
ecary's hill  as  was  incurred  after  tiie  letter 
was  received.  And  /i(;///r//,  B.,  said  :  "  I 
am  r)f  o|)ini(>n  that  tlie  parisli  is  liahlc,  and 
that  the  |>laintitf  can  maintain  the  procnt 
action.  Tlie  icpii  liability  is  not  alone 
suflicient  to  enahle  tlie  party  to  niainlain 
the  action,  witliout  a  retainer  or  adoption 
of  file  plaintilf  on  the  part  of  the  jiarisli. 
The  Icjral  liahility  of  the  ])arish  does  not 
give  any  one  who  chooses  to  attend  a  pau- 
per an<l  supply  him  with  medicines  a  ri;:ht 
to  call  on  them  for  payment.  It  is  their 
duty  to  see  that  a  proper  jierson  is  em- 
ployed, and  they  are  to  have  an  o)>tioii 
who  the  medical  man  shall  he.  Winjr  v. 
Mill  does  not  j:o  the  Icntrth  of  saying-  that 
a  mere  lej^al  lialiility  is  enou<;h  ;  there 
must  he  a  retainer  or  adoption.  In  that 
case  the  ])arish  officers  were  aware  of  the 
attenilance,  and  sanctioned  it,  hecause  they 
applied  to  him  to  send  in  his  hill."  See 
further,  Dotv  r.  Wilson,  14  Johns.  ;J78  ; 
(ilea.son  v.  "Dyke,  22  Tick.  .•?<J;3  ;  Dear- 
honi  V.  Bownnm,  3  Mete.  155. 

(c)  Kaye  v.  Dutton,  7  M.  &   G.  807. 
This  was  an  action  of  assumpsit  upmi  an 


ajrreement,  wherehy,  after  recitinpr  that  one 
W.  in  his  lifetime  mortiia<red  certain  prem- 
ises to  R.  &  B.  to  secure  £3,500  ;  that 
K.  and  B.  rcfjuired  W.  to  procure  the 
l)lainti(f  to  join  him  in  a  hoiid,asa  collat- 
eral security  for  that  sum  and  interest ; 
that  the  defendant  had,  since  the  death 
of  W.,  taken  u]ion  himself  the  manajre- 
ment  of  the  estate  of  W.,  ami  had  paid 
to  K.  and  B.  i;3,370 ;  that  the  plaiii- 
titl"  had  heen  called  npon  as  surety,  and 
had  jiaid  to  B.  and  B.  £130;  that  the 
defendant  had  repaid  him  £48,  leavinf; 
.£82  due ;  that  the  defendant  had  agreed 
to  re]iay  the  plaintitt"  the  £82  out  of  the 
moneys  which  mij;ht  arise  from  the  sale 
of  the  mortjiatred  i>remiscs,  and  in  the  mean 
time  to  a]i])r(jpriate  the  rents  towards  ]iay- 
mcnt  of  the  same,  as  the  jilaiinirt'  had  a 
lien  upon  the  ))remises  for  the  same  ;  that 
the  defemlant  had  re(|uestcd  the  plaintiff 
to  release  and  convey  all  his  estate  and 
interest  in  the  jiremises  to  A.  and  L.,  and 
that  thilt  he  laid  (dnadi/  done,  reservim/  to 
hinistlj'ti  Hi  11  uii  lite  stud  iiit)/ii  lit/,  —  it  was 
witnes,<ed  that,  in  consideration  r)f  the 
l>laintirt-s  havhi<;  paid  the  .£130  to  U.  & 
B.  in  part  dischar;:e  of  the  morttra^re,  and 
in  consideration  of  his  having;  released  and 
conveyed  all  his  estate  and  interest  in  the 
j)remi.ses  to  A.  &  L.,  and  in  order  to  secure 
to  the  plaintiff  the  reiiavmcnt  of  the  X82, 

["417] 


396* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


other  words,  no  express  promise  made  after  a  *consideration  has 
been  wholly  executed,  and  founded  wholly  upon  that  consider- 
ation, can  be  enforced,  if  it  differs  from  the  promise  which  the 
law  implies.     Otherwise  there  would  be  two  distinct  and  per- 


the  defendant  undertook  and  agreed  with 
tlie  plaintiff  to  pay  him  tlie  same,  with  in- 
terest, out  of  tlie  proceeds  of  the  premises 
when  sold,  and,  in  the  mean  time,  to  ap- 
propriate tlie  rents  in  liquidation  of  the 
same.  The  declaration  then  stated  that, 
in  consideration  of  the  premises,  the  de- 
fendant promised  the  plaintiff  to  perform 
the  agreement;  and  alleged  for  breach, 
that,  although  the  defendant  had  received 
rents  to  a  sufficient  amount,  he  had  failed 
to  pay.  Held,  that,  inasmucli  as  the  dec- 
laration did  not  show  that  the  plaintiff  had 
any  interest  in  the  premises,  except  that 
wliicli  he  reserved,  his  release  and  convey- 
ance, thougli  executed  at  the  defendant's 
request,  formed  no  legal  consideration  for 
the  promise  alleged  to  have  been  made  by 
the  latter.  And  Tindal,  C.  J.,  in  that 
case  said  :  "  Two  objections  were  made  to 
the  declaration  —  first,  that  it  did  not  show 
any  consideration  for  the  promise  by  tlie 
defendant ;  secondly,  that  the  promise 
was  laid  in  respect  of  an  executed  consid- 
eration, but  was  not  sucli  a  promise  as 
would  have  been  implied  by  law  from  that 
consideration  ;  and  that,  in  point  of  law, 
an  executed  consideration  will  support  no 
promise,  although  express,  other  tlian  that 
which  the  law  itself  would  have  implied. 
The  cases  cited  by  the  defendant,  namely, 
Brown  v.  Crump,  1  Marsh.  567,  6  Taunt. 
300  ;  Granger  r.  Collins,  6  M.  &  W.  458  ; 
Hopkins  i;.  Logan,  5  M.  &  W.241  ;  Jack- 
son V.  Cobbin,  8  M.  &  W.  790 ;  and  lios- 
corla  V.  Thomas,  .3  Q.  B.  2.34,  2  Gale  & 
D.  508,  certainly  support  that  pro])Osition 
to  this  extent,  —  that,  where  tlic  consider- 
ation is  one  from  which  a  promise  is  by 
law  implied,  tiiere  no  express  promise 
made  in  respect  of  that  consideration  after 
it  has  been  executed,  differing  from  that 
which  by  law  would  be  implied,  can  be  en- 
forced. But  those  cases  may  have  pro- 
ceeded on  the  principle  that  the  consider- 
ation was  exhausted  by  the  promise  im- 
plied by  law,  from  tlie  very  execution  of 
it ;  ami,  consc(|ut'ntly,  any  promise  made 
afterwards  must  be  niulnm  pactum,  there 
remaining  no  consideration  to  support  it. 
But  the  case  may,  perhaps,  be  different 
whei'e  there  is  a  consideration  from  wliich 
no  promise  would  be  implied  by  law  ;  that 
is,  where  the  party  suing  has  sustained  a 

[418] 


detriment  to  himself,  or  confeiTcd  a  bene- 
fit on  the  defendant,  at  his  request,  under 
circumstances  which  would  not  raise  any 
implied  ])romise.  In  such  cases  it  ap- 
pears to  have  l)een  held,  in  some  instances, 
that  the  act  done  at  the  request  of  the  party 
charged  is  a  sufficient  consideration  to 
render  binding  a  promise  afterwards  made 
by  him  in  respect  of  the  act  so  done. 
Hunt  ;,'.  Bate,  and  several  cases  mentioned 
in  tlie  margin  of  the  report  of  that  case, 
seem  to  go  to  that  extent ;  as  also  do 
some  others  collected  in  RoUe,  AI)r.  Ac- 
tion stir  Case,  (Q)" — So  in  Jackson  v. 
Cobbin,  8  M.  &  W.  790,  a  declaration  in 
assumpsit  stated,  in  substance,  that  the  de- 
fendant agreed  ^o  let,  and  the  plaintiff  to 
take,  a  certain  messuage  and  premises  on 
certain  sjiecificd  terms,  and  that  aft erioards, 
in  consideration  of  the  premises,  and  that 
the  plaintiff,  at  the  request  of  the  defendant, 
had  promised  the  defendant  to  perform  his 
part  of  tlie  agreement,  the  defendant  prom- 
ised the  plaintiff  to  perform  his  part  of  the 
agreement,  and  that  he  then  had  power  to 
let  the  messuage  and  premises  to  the 
plaintiff,  without  restriction  as  to  the  purpose 
for  which  the  same  should  he  used  and  occu- 
pied. Held,  on  special  demurrer,  that 
such  a  promise  could  not  be  implied  from 
the  relation  of  the  parties,  and  tliat  the 
consideration  alleged  was  insufficient  to 
sustain  it.  See  also,  Hopkins  v.  Logan, 
5  M.  &  W.  241 ;  Lattiinore  ('.  Garrard,  1 
Exch.  809.  In  Roscorla  v.  Thomas,  3 
Q.  B.  235,  the  dechu-ation  stated  that,  in 
consideration  that  plaintiff,  at  the  request 
of  defendant,  had  bought  a  horse  of  de- 
fendant at  a  certain  price,  defendant  prom- 
ised that  the  horse  was  free  from  vice  ;  but 
it  was  vicious.  Held  bad,  on  motion  in 
arrest  of  judgment ;  for  that  the  executed 
consideration,  though  laid  with  a  request, 
neither  raised  by  imiilication  of  law  the 
promise  charged  in  the  declaration,  nor 
would  support  such  promise,  assuming 
it  (as  must  be  assumed  on  motion  in  ar- 
rest of  judgment),  to  I)e  ex])rcss.  But  we 
think  this  case  goes  too  far,  in  saying  a 
consideration  which  would  not  raise  an 
implied  promise  would  not  sustain  an  ex- 
press one.  See  the  ol>servations  of  Tin- 
dal, C.  J.,  in  Kaye  v.  Dutton,  cited  above. 


en.  I.] 


CONSIDERATION. 


*397-39S 


haps  antagonistic  promises  resting  upon  one  consideration.  From 
what  has  been  said  it  will  be  seen  that,  where  the  considera- 
tion is  wholly  executed,  the  law  implies  in  some  eases  a  previous 
request,  provided  a  promise  be  proved;  but  will  not  imply  a 
request  and  thence  imply  a  promise.  On  the  other  hand,  wher- 
ever the  law  implies  the  *promise,  there  it  will  also  imply  a  re- 
quest ;  and  hence  it  may  be  said  that  express  request  is  unnec- 
essary where  the  law  implies  a  promise,  (a) 


(a)  It  follows  from  what  is  stated  in  the 
text  that  in  declaring  on  an  executed  con- 
sideration, it  is  nut  necessary  to  allege  a 
j)recedent  request  where  the  law  will  im- 
ply a  promise  without  a  request.  See  Os- 
borne c.  IJogcrs,  1  Wms.  Saund.  264,  n. 
1,  as  corrected  by  the  learned  note  of  Mr. 
Sergeant  IManning,  ajjpended  to  the  case 
of  Fisher  v.  Pyne,  1  Man.  &  Gr.  2i\5. 
Accordingly,  in  Victors  v.  Davies,  12  M. 
&  W.  758,  it  was  hold  that  in  a  declaration 
for  money  lent,  it  is  not  necessary  to  aver 
that  the  money  was  lent  at  the  defendant's 
request.  Parke,  W.  "  There  is  a  very 
learned  note  of  my  brother  Manning  on 
this  subject,  in  wliich  he  goes  into  the 
whole  law  with  respect  to  alleging  a  re- 
quest, and  points  out  the  error  into  which 
Sir.  (Sergeant  Williams  ap])ears  to  have 
fallen  in  his  comment  ui)on  Osborne  v. 
liogers.  The  note  is  thus  :  '  The  consider- 
ation being  executory,  the  statement  of  the 
recpiest  in  the  declaration,  though  men- 
tioned in  the  undertaking,  apjjcars  to  have 
been  unnecessary.  In  Osborne  r.  Rogers 
the  consideration  of  ii  promise  is  laid  to 
he  that  the  said  llobert,  at  the  sjiecial  in- 
stance and  re(iuest  of  the  said  William, 
would  serve  the  said  William,  and  bestow 
his  care  and  labor  in  and  about  the  busi- 
ncs  of  the  said  William  ;  and  the  decla- 
ration alleges,  that  i{obert,  coniiding  in  the 
said  promise  of  William,  afterwards  went 
ittto  the  service  of  William,  anil  bestowed 
his  care  and  labor  in  and  about,'  &c. 
Here  the  consideration  is  dearly  executory, 
yet  Mr.  Sergeant  Williams,  in  a  note  to 
the  words  '  at  the  special  instance  and  re- 
quest,' says,  '  these  words  are  necessary  to 
be  laid  in  the  declaration,  in  order  to  su|)- 
port  the  action.     It  is  held,  that  a  consid- 


eration executed  and  past,  —  as,  in  the 
presmt  case,  the  service  performed  by  the 
plaintiff  for  the  testator  in  his  lifetime,  for 
several  years  then  past,  —  is  not  sufKcient 
to  maintain  an  assumpsit,  unless  it  was 
moved  by  a  precedent  recpiest,  and  so 
laid.'  The  statement,  according  to  mod- 
ern practice,  of  the  accrual  of  a  debt  for, 
or  the  making  of  a  ])romise  for  tliei)ayment 
of,  the  pric(;  of  goods  sold  and  delivered, 
or  for  tiie  repayment  of  money  lent,  as  be- 
ing in  consideration  of  goods  sold  and  de- 
livered, or  money  lent  to  the  defendant,  tU 
his  r<</}ies(,  is  conceived  to  be  an  inartiii- 
cial  mode  of  declaring.  Even  where  the 
consideration  is  entirely  past,  it  appears 
to  be  unnecessary  to  allege  a  request,  if 
the  act  stated  as  the  consideration  cannot, 
from  its  nature,  have  been  a  gratuitous 
kindness,  but  imports  a  consideration  ])er 
se.  It  being  immaterial  to  the  right  of 
action  whether  the  i)argain,  if  actually  con- 
cluded and  executed,  or  the  loan,  if  made, 
and  the  moneys  actually  advanced,  was 
l)roposed  and  urged  by  the  buyer  or  by 
the  seller,  by  the  borrower  or  by  tlio 
lender.  Vide  Kastall's  Entries,  tit.  '  Det- 
te  ; '  and  Co.  Ent.  tit.  '  Debt.'  There 
cannot  be  a  claim  for  money  lent  unless 
there  be  a  loan,  and  a  loan  imports  an 
obligation  to  ])ay.  If  the  money  is  ac- 
cepted, it  is  immaterial  whether  or  not  it 
was  ikiked  for.  The  same  doctrine  will 
not  apply  to  money  paid;  because  no 
man  can  be  a  debtor  for  money  jiaid,  un- 
less it  was  paid  at  his  re([iiest.  Wliat  my 
brother  Manning  says,  in  the  note  to 
which  I  have  referred,  is  perfectly  correct." 
And  see  Acome  v.  The  Amerieaa  Mineral 
Co.  1 1  How.  I'r.  Reps.  24. 

[419] 


399 


THE   LAW    OF    CONTRACTS. 


[book  II. 


CHAPTER  II. 

•:  ASSENT   OF   THE   PARTIES. 

Sect.  I. —  Whal  the  Assent  mtist  he. 

There  is  no  contract,  unless  the  parties  thereto  assent;  and 
they  must  assent  to  the  same  thing,  in  the  same  sense,  [b)  A 
mere  assent  does  not  suffice  to  constitute  a  contract,  for  there 
may  be  an  assent  in  a  matter  of  opinion,  or  in  some  fact  which 
is  done  and  completed  at  the  time,  and  therefore  leaves  no  obli- 
gation behind  it.  But  a  contract  requires  the  assent  of  the 
parties  to  an  agreement,  and  this  agreement  must  be  obligatory, 
and,  as  we  have  seen,  the  obligation  must,  in  general,  be  mutual. 
This  is  sometimes  briefly  expressed,  by  saying  that  there  must 
be  "a  request  on  the  one  side  and  an  assent  on  the  other."  (c) 
A  mere  affirmation,  or  proposition,  is  not  enough.  Nor  is  this 
any  more  a  contract  if  it  be  in  writing  than  if  spoken  only,  [d) 


(6)  Hazard  v.  New  England  Marine  Ins. 
Co.  1  Sumner,  218.  In  Bruce  r.  Pearson, 
3  Johns.  .534,  it  was  held  that  if  a  person 
sends  an  order  to  a  merchant  to  send  him 
a  particular  quantity  of  goods  on  certain 
terms  of  credit,  and  the  merchant  sends  a 
less  quantity  of  goods,  at  a  shorter  credit; 
and  the  goods  sent  are  lost  by  the  way, 
the  merchant  must  bear  the  loss,  for  there 
is  no  contract,  express  or  implied,  between 
the  parties.  So  wliere  shingles  were  sold 
and  delivered  at  $3.2.5,  but  there  was  a 
dispute  as  to  whether  the  f3.2.5  was  for  a 
bunch  or  for  a  thousand  ;  it  was  held,  tliat, 
unless  both  parties  had  understandingly 
assented  to  one  of  tliose  views,  there  was 
no  special  contract  as  to  the  jirice.  Greene 
V.  Bateman,  2  W.  &  M.  359.  See  further, 
Tuttle  V.  Love,  7  Johns.  470  ;  Eliason  v. 
Henshaw,  4  Wlieat.  225 ;  Falls  v.  Gaither, 
9  Porter,  605;  Keller  v.  Ybarru,  3  Cal.  147  ; 
[420] 


Hutchison  v.  Bowkcr,  5  M.  &  W.  535  ; 
Hamilton  v.  Terry,  10  E.  L.  &  E.  473. 

(c)  Tindal,  C.  J.,  in  Jackson  v.  Gallo- 
wav,  5  Bing.  N.  C.  75. 

[d]  Tucker  v.  Woods,  12  Johns.  190. 
Sec  also,  Bruce  i\  Pearson,  3  Johns.  534; 
Tattle  V.  Love,  7  Johns.  470 ;  Weeks  ?'. 
Tybald,  Nov,  E.  11 ;  1  llol.  Abr.  6,  (M,) 
pi.  1.  —  To  render  a  proposed  contract 
binding,  tliere  must  be  an  accession  to  its 
terms  by  both  parties,  —  a  mere  voluntary 
compliance  with  its  conditions  by  one  who 
had  not  previously  assented  to  it  does  not 
render  the  other  liable  on  it.  Johnston  v. 
Eessler,  7  Watts,  48  ;  Ball  r.  Newton,  7 
Gush.  599 ;  and  see  tlie  late  case  of  Mey- 
nell  V.  Surtees,  31  E.  L.  &  E.  475.  In 
this  case  certain  parties  were  desirous  of  '^.^ 
constructing  a  railway  on  the  way-leave  { 
principle,  and  for  that  purpose  entered  / 
into  negotiations  with  a  laud-owner,  and  ! 


en.  II.]  ASSENT.  *400 

It  becomes  a  contract  only  when  *the  proposition  is  met  by  an 
acceptance  which  corresponds  with  it  entirely  and  adequately. 

Many  cases  turn  upon  the  question  whether  this  assent  to 
the  proposition  was  entire  and  adequate.  The  principle  may 
be  stated  thus.  The  assent  must  comprehend  the  whole  of  the 
proposition,  it  must  be  exactly  equal  to  its  extent  and  pro- 
visions, and  it  must  not  qualify  them  by  any  new  matter.  Thus, 
an  offer  to  sell  a  certain  thing,  on  certain  terms,  may  be  met  by 
the  answer,  "  I  will  take  that  thing  on  those  terms,"  or  by  any 
answer  which  means  this,  however  it  may  be  expressed ;  and, 
if  the  proposition  be  in  the  form  of  a  question,  as,  "  I  will  sell 
you  so  and  so,  will  you  buy  ?  "  the  whole  of  this  meaning  may 
be  conveyed  by  the  word  "  Yes,"  or  any  other  simply  afTirma- 
tive  answer.     And  thus  a  legal  contract  is  completed. 

But  there  are  cases  where  the  answer,  either  in  words  or  In 
effect,  departs  from  the  proposition  ;  or  varies  the  terms  of  the 
offer ;  or  substitutes  for  the  contract  tendered,  one  more  satis- 
factory to  the  respondent.  In  these  cases  there  is  no  assent,  and 
no  contract.  The  respondent  is  at  liberty  to  accept  wholly  ;  or 
to  reject  wholly  ;  but  one  of  these  things  he  must  do;  for  if  he 
answers,  not  rejecting,  but  proposing  to  accept  under  some 
modifications,  this  is  a  rejection  of  the  offer.  The  party  mak- 
ing the  offer  may  renew  it ;  but  the  party  receiving  it  cannot 
reply,  accepting  with  modifications,  and  when  these  are  rejected, 
again  reply,  accepting  generally,  and  upon  his  acceptance  claim 
the  right  of  holding  the  other  party  to  his  first  offer. 

An  answer  or  a  compliance  has  been  sometimes  held  insuf- 
ficient to  make  a  contract,  where  the  difference  of  terms  be- 

proposed  terms  which  were  discussed  by  any  time  before  the  ratification  by  the  first, 

the  parties,  but  not  agreed  to.     The  com-  Thus   where   A   proposed    to    exchange 

pany  went   forward,    liowcver,   and   con-  horses    with    B,   and   give   B   a  s]>c<itic 

structed  their  road.     Held,  tliat  the  acqui-  amount,  as  difference,  whicli  proposition 

esccnce  of  tlie  land-owner  in  the  construe-  B  rcsened  tlic  privilege   of  (Ictcnnining 

tion  of  the  road  did  not  amount  to  an  ac-  upon  I)y  a  certain  day  ;  an<l  before  tliat(hiy 

ceptance   of  tiie   terms   proposed  by  the  arrived  A  gave  notice  to  B,  that  lie  would 

company.  —  In    Eskridge    i-.    Glover,    5  not  confirm  the  offered   contract,   it  wsis 

Stewart  &  Porter,  264,  it  was  h<-hl  that  an  Iwld  that  no  action  lay  in  favor  of  B  to  re- 

incomplrte  contract  or   agreement,    whicii  cover  the  difference  agreed  to  be  paid  by  A. 

one  of  the  parties  has  the  option  of  com-  Sec  also.  Cope  i\  Albinson,  Ifi  E.  L.  &,E. 

pleting  at  a  particular  day,  raises  a  mutual  470  ;  Governor,  &c.  v.  Fetch,  28  E.  L.  & 

right  of  rescission,  in  tlic  other  party,  at  E.  470. 

VOL.  I.  "3G  [421  ] 


401* 


THE   LAW   OF   CONTRACTS. 


[book  II. 


tween  the  parties  did  not  seem  to  be  very  important  (e)  *In  fact 
the  court  seldom  inquires  into  the  magnitude  or  effect  of  this 
diversity  ;  if  it  clearly  exist,  that  fact  is  enough.  But  it  is  not 
material  by  which  of  the  parties  to  an  agreement  the  words 
which  make  it  one  are  spoken  ;  the  intent  governs,  and  if 
this  be  clear,  and  expressed  with  sufficient  definitiveness,  it  is 


enough 


(/) 


(e)  Thus  in  Hutchinson  v.  Bowker,  5 
M.  &  W.  535,  the  action  was  assumpsit 
for  the  non-delivery  of  barley.  It  was 
proved  at  the  trial  that  the  defendants 
wrote  to  the  plaintiffs,  offering  them  a  cer- 
tain quantity  of  "good"  barley,  upon 
certain  terms  ;  to  which  the  plaintiffs  an- 
swered, after  quoting  the  defendant's  let- 
ter, as  follows  :  "  Of  which  offer  we  ac- 
cept, expecting  you  will  give  us  Jiiie  bar- 
ley and  full  weight."  The  defendants,  in 
reply,  stated  that  their  letter  contained  no 
such  expression  as  Jine  barley  and  de- 
clined to  ship  the  same.  Evidence  was 
given  at  the  trial  that  the  terms  "  good  " 
and  "  fine  "  were  terms  well  known  in  the 
trade  ;  and  the  jury  found  that  there  was 
a  distinction  in  "the  trade  between  "  good  " 
and  "  fine  "  barley.  Held,  that  although 
it  was  a  question  for  the  jury  what  was 
the  meaning  of  those  terms  in  a  mercan- 
tile sense,  yet  that,  they  having  found 
what  that  meaning  was,  it  was  for  the 
court  to  determine  the  meaning  of  the 
contract ;  and  the  court  held  that  there 
was  not  a  sufficient  acceptance.  See  also, 
Slaymaker  v.  Irwin,  4  Whart.  369  ;  Gether 
V.  Capper,  26  E.  L.  &  E.  275.  And  in 
Vassar  v.  Camp,  1  Kernan,  441,  the  de- 
fendants wrote  to  the  plaintiffs,  offering 
them  "  10,000  bushels  of  first  quality  Jef- 
ferson Comity  barley  of  tliis  year's  growth." 
The  plaintiffs  replied,  sending  a  contract 
for  the  purpose  of  having  it  signed  by  de- 
fendant, in  which  the  barley  was  described 
as  "  first  quality  Jefferson  county  two- 
rowed  barley,  of  this  season's  growth." 
Held,  that  this  was  not  an  acceptance  of 
the  defendant's  offer.  So  where  there  is  a 
material  variance  between  the  bought  and 
sold  notes  delivered  by  a  broker  to  the 
vendor  and  vendee,  there  is  no  sale.  Pel- 
tier V.  Collins,  3  Wend.  459 ;  Suydam  v. 
Clark,  2  Sandf.  133.  See  the  late  cases 
of  Sivewright  v.  Archibald,  6  E.  L.  &  E. 
286 ;  Moore  v.  Campbell,  26  E.  L.  &  E. 
522.     So  in  Jordan  v.  Norton,  4  M.  &  W. 

[422] 


155,  which  was  assumpsit  for  a  mare  sold 
and  delivered,  to  which  the  defendant 
pleaded  non-assumpsit.  It  appeared  that 
the  defendant,  having  seen  and  ridden 
the  mare,  wrote  to  the  plaintiff,  "  I 
will  take  the  mare  at  twenty  guineas,  of 
course  warranted;  and  as  she  lays  out,  turn 
her  out  my  mare."  The  plaintiff  agreed 
to  sell  her  for  twenty  guineas.  The  de- 
fendant subsequently  wrote  again  to  him, 
"My  son  will  be  at  the  World's  End  (a 
public-house,)  on  Monday,  when  he  will 
take  the  mare  and  pay  you ;  send  anybody 
with  a  receipt,  and  the  money  shall.be 
paid ;  only  say  in  the  receipt,  sound,  and 
quiet  in  harness."  The  plaintiff  wrote  in 
reply,  "  She  is  warranted  sound,  and  quiet 
in  double  harness;  I  never  put  her  in  single 
harness."  The  mare  was  brought  to  the 
World's  End  on  the  Monday,  and  the  de- 
fendant's son  took  her  away  without  pay- 
ing the  price,  and  without  any  receipt  or 
warranty.  The  defendant  kept  her  two 
days,  and  then  returned  her  as  l)eing  un- 
sound. The  learned  judge  stated  to  the 
jury  that  the  question  was  whether  the 
defendant  had  accepted  the  mare,  and 
directed  them  to  find  for  the  defendant  if 
they  thought  he  had  returned  her  within 
a  reasonable  time ;  and  desired  them  also 
to  say  whether  the  son  had  authority  to 
take  her  without  the  warranty.  The  jury 
found  that  the  defendant  did  not  accept 
the  mare,  and  that  the  son  had  not  author- 
ity to  take  her  away.  Held,  on  motion  to 
enter  a  verdict  for  the  plaintiff,  that  there 
was  no  complete  contract  in  writing  be- 
tween the  parties ;  that,  therefore,  the 
direction  of  the  learned  judge  was  right; 
that  the  defendant  was  not  bound  by  the 
act  of  the  son  in  bringing  home  the  mare, 
inasmuch  as  he  had  thereby  exceeded  his 
authority  as  agent ;  and  consequently  that 
the  plaintiff  was  not  entitled  to  recover. 

(/)  Putnam,  J.,  in  Hubbard  v.  Cool- 
idge,  1  Met.  93.  But  where  a  conversa- 
tion is  relied  upon  as  proof  of  an  agree- 


CH.  II.] 


ASSENT. 


*402 


This  question  frequently  occurs  in  cases  where  a  guaranty 
was  offered,  and  the  party  receiving  it  acted  on  the  faith  of  such 
guaranty.  But  this  is  not  enough,  without  a  previous  *accept- 
ance  of  the  guaranty,  (g-)  Nor  does  this  rest  on  a  mere  tech- 
nical rule.  Justice  to  the  guarantor  obviously  requires  that  he 
should  have  notice  of  an  intention  to  furnish  goods  or  money, 
or  do  any  similar  thing  on  the  credit  of  his  guaranty.  And 
this  notice  must  be  distinct,  so  that  there  can  be  no  mistake 
about  it,  and  given  in  good  season,  so  that  the  guarantor  may, 
if  he  chooses,  take  proper  measures  to  secure  himself.  Such  a" 
case  must,  however,  be  discriminated  from  one  of  absolute 
and  complete  guaranty;  as  where  one  writes,  "I  hereby  guar- 
antee you,  &c.,"  and  delivers  the  paper.  This  is  not  an  offer, 
or  proposition  to  guarantee,  but  a  declaration  of  the  fact,  and  if 
made  on  good  consideration  binds  the  party,  without  further 
action  on  the  part  of  him  who  receives  it.  (h)     But  where  the 


mcnt,  it  is  for  the  jury  to  decide  whether 
such  an  assent  of  the  minds  of  the  parties 
took  phice  as  to  constitute  a  valid  contract, 
or  whether  what  passed  between  them  was 
a  loose  conversation,  not  understood  or  in- 
tended as  an  afjrccment.  Thruston  i-. 
Thornton,  1  Cush.  89. 

((/)  Thus  in  Gaunt  v.  Hill,  1  Starkie, 
10,  which  was  assumpsit  for  non-payment 
of  .£70,  in  consideration  of  forl)earance. 
The  defendant's  brother  being  indebted  to 
the  plaintiff  in  the  sum  of  .£140,  the  de- 
fendant offered  by  letter  to  pay  the  plain- 
tiff .£70,  provided  he  would  give  his 
brother  a  full  discharge ;  and  directed 
him,  in  case  he  acce])ted  his  offer,  to  call 
upon  iiim  the  next  morning.  Held,  that 
the  offer  was  not  binding  upon  the  de- 
fendant, unless  acce])ted  within  the  time 
appointed,  and  that  at  all  events  it  must 
be  shown  tiiat  the  idaintitf  had  acceded  to 
the  proposal  in  writing.  —  So  in  Mclver 
V.  Richardson,  1  M.  &  S.  5.57,  a  paper 
writing  was  given  by  the  defendant  to  A 
(to  whose  house  the  jdaintiffs  had  de- 
clined to  furnish  goods  on  their  credit 
alone),  to  this  effect:  "I  understand  A. 
&  Co.  have  given  you  an  order  for  rigging, 
&c.  I  can  assure  you,  from  what  I  know 
of  A.'s  honor  and  probity,  you  will  l)c 
perfectly  safe  in  crediting  them  to  that 
amount ;  indeed  I  have  no  ol>jection  to  guar- 
aulee  ijou  against  amj  loss  from  giving  them 
this  credit ; "   which   paper  was   handed 


over  by  A.  to  the  plaintiffs,  together  with 
a  guaranty  from  another  house,  which 
they  required  in  addition,  and  the  goods 
were  thereupon  furnished.  Held,  that  the 
paper  did  not  amount  to  a  guaranty,  there 
being  no  notice  given  by  the  plaintiffs  to 
the  defendant  that  they  accepted  it  as 
such,  or  any  consent  of  the  defendant  that 
it  should  l)e  a  conclusive  guaranty.  And 
on  tlic  authority  of  that  case,  the  Court  of 
Exchc([ucr  afterwards,  in  Mozley  v.  Tink- 
ler, 1  Cr.  M.  &  R.  692,  adopted  the  same 
doctrine.  In  that  case  there  was  a  guar- 
anty in  the  following  form  :  "  F.  informs 
me  that  you  are  about  publishing  an  arith- 
metic for  him.  I  have  no  objection  to  be- 
ing answerable  as  far  as  fifty  pounds  ;  for 
my  reference  apply  to  B."  Signed  "  G. 
T."  B.  wrote  this  memorandum,  and 
added,  "Witness  to  G.  T.— J.  B."  It 
was  forwarded  by  B.  to  the  plaintiffs,  who 
never  communicated  their  accej^tance  of  it 
to  G.  T.  In  an  action  against  the  latter 
on  the  guaranty,  helif,  that  the  plaintiffs, 
not  proving  any  notice  of  acce])tance  to 
the  defendant,  were  not  entitled  to  recover. 
See  also  Morrow  v.  Waltz,  18  Penn.  118. 
(/()  The  distinction  between  a  mere  offer 
to  guarantee,  and  an  actual  guaranty,  is 
well  illustrated  by  the  case  of  Jones  v. 
Williams,  7  M.  &  W.  49.3.  In  that  ca.se 
the  defendant's  undertaking  was  contained 
in  two  letters,  addressed  to  C.  J.,  the 
brother  of  the  plaintiff's  intestate,  R.  J., 

[423] 


403*-*404 


THE   LAW   OF   CONTRACTS. 


[book  II. 


guaranty  *is  made  only  as  an  offer,  or  a  proposition,  there  must 
be  a  distinct  acceptance  of  it.  The  subject  of  guaranty  we 
shall,  however,  consider  specifically  hereafter. 

At  a  sale  by  auction,  every  bid  of  any  one  present  is  an  offer 
by  him.  It  becomes  a  contract  as  soon  as  the  hammer  falls,  or 
the  bid  is  otherwise  accepted;  (i)  but  until  it  is  accepted  it  may 
be  withdrawn  by  the  bidder,  because  until  then  it  is  not  oblig- 
atory on  him,  for  want  of  the  assent  of  the  owner  of  the  prop- 
erty by  his  agent  the  auctioneer. 


SECTION    II, 


CONTRACTS   ON   TIME. 


Propositions  or  offers  on  time  involve  questions  of  the  assent 
of  parties,  which  are  sometimes  difficult.  (J)    Strictly  *speaking, 


in  the  first  of  which  he  pressed  C.  J.  to 
join,  and  to  induce  his  brothers  to  join,  in 
a  security  for  the  rei)ayracnt  of  money  to 
be  advanced  to  the  defendant  for  carrying 
on  a  suit  in  chancery  ;  and  in  the  second 
he  again  urged  that  they  shoukl  lend  tlieir 
names  for  this  purpose,  and  added  :  —  "I 
should  consider  it  a  matter  of  favor  to 
myself  if  your  brothers  will  join,  and  I  will 
see  tliat  they  come  to  no  harm."  Held, 
that  the  letters  amounted  to  an  actual 
guaranty,  on  which  the  defendant  was 
liable  to  the  plaintiff,  and  not  merely  to  a 
representation  with  a  view  to  the  parties 
doing  an  act,  against  the  consequences 
of  which  they  should  afterwards  be  pro- 
tected. 

(j)  Payne  v.  Cave,  3  T.  E.  148.  The 
court  there  said  :  "  The  auctioneer  is  the 
agent  of  the  vendor,  and  the  assent  of  both 
parties  is  necessary  to  make  the  contract 
Ijinding ;  that  is  signified  on  the  part  of 
the  seller,  by  knocking  down  the  hammer, 
which  was  not  done  here  till  the  defendant 
had  retracted.  An  auction  is  not  unaptly 
called  locus  poenitentice.  Every  bidding  is 
nothing  more  than  an  offer  on  one  side, 
which  is  not  binding  on  either  side  till  it 
is  assented  to."  See  further,  Fisher  v. 
Seltzer,  23  Penn.  St.  Rep.  308. —As 
sales  at  auction  are  clearly  within  the 
Statute  of  frauds,  Hinde  v.  Whitehouse,  7 

[424] 


East,  568 ;  Kenworthy  v.  Scofield,  2  B.  & 
C.  945  ;  Brent  v.  Green,  6  Leigh,  16,  the 
assent  would  not  be  binding  unless  in 
writing,  if  the  case  came  within  the  terms 
of  that  statute. 

{j)  This  subject  was  discussed  in  the 
late  case  of  Boston  and  Maine  Railroad 
V.  Bartlett,  3  Cush.  224.  It  was  there 
held,  that  a  proposition  in  writing  to  seU 
land,  at  a  certain  })rice,  if  taken  within 
tiiirty  days,  is  a  continuing  ofter,  which 
may  be  retracted  at  any  time  ;  but  if  not 
being  it'tracted,  it  is  accepted  within  the 
time,  such  offer  and  acceptance  constitute 
a  valid  contract,  the  specific  performance 
of  which  may  be  enforced  by  a  bill  in 
equity.  Fletcher,  J.,  there  observed  ;  "  In 
the  present  case,  though  the  writing  signed 
by  the  defendants  was  but  an  offer,  and 
an  offer  which  might  be  revoked,  yet  while 
it  remained  in  force  and  unrevoked,  it 
was  a  continuing  offer  during  the  time 
limited  for  acceptance;  and  during  the 
whole  of  that  time,  it  was  an  offer  every 
instant,  but  as  soon  as  it  was  accejited  it 
ceased  to  be  an  offer  merely,  and  then 
ripened  into  a  contract.  The  counsel  for 
the  defendants  is  most  surely  in  the  right, 
in  saying  that  the  writing  when  made  was 
without  consideration,  and  did  not  there- 
fore form  a  contract.  It  was  then  but  an 
offer  to  contract ;  and  the  parties  making 


CH.  II.] 


ASSENT. 


-404 


all  offers  are  on  time.  If  one  says,  I  will  sell  you  this  thing 
for  this  money,  and  the  other  answers,  T  will  buy  that  thing  at 
that  price,  all  authorities  agree  that  this  is  a  contract.  But  the 
answer  follows  the  offer ;  it  cannot  be  actually  simultaneous 
with  it,  although  it  is  sometimes  said  to  be  so.  But  the  offer 
is  regarded  as  continuing  until  the  acceptance,  if  the  acceptance 
be  made  at  once.  Nor  can  it  be  necessary  that  the  acceptance 
should  follow  the  offer  instantaneously.  Though  the  party 
addressed  pauses  a  minute  or  two  for  consideration,  still  his 
assent  makes  a  contract,  for  the  offer  continues  unless  it  be  ex- 
pressly withdrawn.  But  how  long  will  it  continue  ?  The  only 
answer  must  be,  in  general,  a  reasonable  time  ;  (jj)  and  what 
this  is  must  be  determined  by  the  circumstances  of  the  case. 
If  the  party  addressed  goes  away,  and  returns  the  next  month 
or  the  next  week,  and  says  he  will  accept  the  proposition,  he  is 
too  late  unless  the  proposer  assents  in  his  turn.  So  it  would  be 
probably  if  he  came  the  next  day,  or  the  next  hour;  or  perhaps 
if  he  went  away  at  all  and  afterwards  returned. 

But  the  proposer  may  himself  determine  how  long  the  offer 
shall  continue.  He  may  say,  I  will  give  you  an  hour,  or  until 
this  time  to-morrow,  or  next  week,  to  make  up  your  mind. 
Then  the  party  to  whom  the  proposition  is  made  knows  how 
long  the  offer  is   to  continue.     He  may  avail    himself  of  the 


I 


tlic  o(R'r  most  undouhtcflly  mi;;ht  have 
withdrawn  it  at  any  time  i^'fore  accept- 
ance. Hut  when  the  otter  was  accepted, 
the  minds  of  the  parties  met,  and  tlie  con- 
tract was  complete.  There  was  thin  tlie 
meetini;  of  tlie  minds  of  the  parties,  which 
constitutes  and  is  the  definition  of  a  con- 
tract. The  acceptance  I>y  tlie  plaintitt's 
constituted  a  sutticient  lefral  consideration 
for  the  enga^jcement  on  the  part  of  the 
defendants.  Tliere  was  then  nothing 
wanting,  in  order  to  perfect  a  valid  con- 
tract on  the  part  of  tlie  defendants.  It 
was  precisely  as  if  the  parties  had  met  at 
the  time  of  the  acceptance,  and  the  otfer 
had  then  heen  made  and  accepted,  and 
the  bargain  completed  at  once.  A  dirt'er- 
ent  doctrine,  however,  prevails  in  Prance, 
ami  Scotland,  and  Holland.  It  is  there 
held,  that  whenever  an  otter  is  made, 
granting  to  a  party  a  certain  time  within 
which  he  is  to  be  entitled  to  decide 
whether  he  will  accept  it  or  not,  the  party 

36* 


making  such  offer  is  not  at  liberty  to 
withdraw  it  before  the  lapse  of  the  ap- 
pointed time.  There  are  certainly  very 
strong  reasons  in  supi)ort  of  this  doctrine. 
Highly  respectable  authors  regard  it  as 
inconsistent  with  the  ])lain  principles  of 
efputy,  that  a  person,  who  has  been  in- 
duced to  rely  on  such  an  engagement, 
should  have  no  remedy  in  case  of  dis- 
a))pointment.  But,  whether  wisely  and 
equitably  or  not,  the  common  law  un- 
yieldingly insists  upon  a  consideration,  or 
a  paper  with  a  seal  attached.  The  au- 
thorities, both  English  an<l  American,  in 
support  of  this  view  of  the  suliject,  are 
very  numerous  and  decisive  ;  but  it  is  not 
deemed  to  be  needful  or  expedient  to 
refer  particularly  to  them,  as  they  arc  col- 
lected and  commented  on  in  several 
reports,  as  well  as  in  the  text-books." 

( ;)')  Beckwith  r.  ("lieevcr,  1  Foster,  41  ; 
Peru  V.  Turner,  1  Faiif.  185. 

[425] 


405*  THE   LAW   OF   CONTRACTS.  [bOOK  II. 

hour,  the  day,  or  the  week  given,  for  inquiry  or  consideration, 
or  maUing  the  necessary  arrangements;  and  if  within  the  pre- 
scribed time  he  expresses  his  assent,  *(supposing  the  proposition 
not  in  the  mean  time  withdrawn,)  he  completes  the  contract  as 
effectually  as  if  he  had  answered  in  the  same  way  at  the  first 
moment  after  the  offer  was  made,  {jk) 

It  seems  irrational  to  say  that  the  proposer  is  not  bound  by 
receiving  such  delayed  assent,  although  it  is  given  within  the 
specified  time,  because  no  consideration  had  been  paid  him  for 
the  delay,  and  for  the  continuance  of  the  offer.  If  it  were  said 
that  where  one  makes  an  offer,  and  the  other  instantly  accepts, 
the  offerer  nevertheless  is  not  bound,  because  there  is  no  con- 
sideration, then  it  might  be  said  consistently  that  he  is  not 
bound  by  an  answer  made  within  a  time  specified  by  him. 
But  no  one  doubts  that  the  offerer  is  bound  by  an  instantaneous 
acceptance,  although  he  received  no  consideration  for  the  offer. 
And  what  difference  can  it  make  as  to  the  consideration  or  the 
want  of  it,  whether  the  acceptance  follows  the  offer  in  a  second, 
or  in  a  minute  or  two,  or  in  a  longer,  but  still  reasonable  time, 
or  in  a  still  longer  time  limited  and  specified  by  the  proposer 
■himself.  All  these  cases  stand  on  the  same  footing  in  respect 
of  consideration. 

Undoubtedly,- if  the  offerer  gives  a  day  for  acceptance,  with- 
out consideration  for  the  delay,  he  may  at  any  time  within  that 
day,  before  acceptance,  recall  his  offer.  So  he  may  if  he  gives 
no  time.  If  he  makes  an  offer,  and  instantly  recalls  it  before 
acceptance,  although  the  other  party  was  prepared  to  accept  it 
the  next  instant,  the  offer  is  effectually  withdrawn.  But  accept- 
ance before  withdrawal  binds  the  parties,  if  made  while  the 
offer  continues;  and  the  offer  does  continue  in  all  cases,  either 
a  reasonable  time,  (and  that  only,)  or  the  time  fixed  by  the 
party  himself. 

It  may  be  said,  that  whether  the  offer  be  made  for  a  time  cer- 
tain or  not,  the  intention  or  understanding  of  the  parties  is  to 
govern.  If  the  proposer  fixes  a  time  he  expresses  his  intention, 
and  the  other  party  knows  precisely  what  it  is.     If  no  definite 

ijk)  Wright  V.  Bigg,  21  E.  L.  &  E.  591. 

[426] 


CH.  II.]  ASSENT.  *406-*407 

time  is  stated,  then  the  inquiry  as  to  a  reasonable  time  resolves 
itself  into  an  inquiry  as  to  what  time  it  is  rational  to  suppose 
that  the  parties  contemplated  ;  and  the  law  *will  decide  this  to 
be  that  time  which  as  rational  men  they  ought  to  have  under- 
stood each  other  to  have  in  mind. 

We  hold  this  to  be  the  true  principle,  and  to  be  capable  of 
universal  application.  Thus  where  many  subscribe  for  a  com- 
mon result  on  a  certain  condition,  the  first  question  may  be  as 
to  the  considt'ration  ;  and  this  we  have  already  discussed.  And 
it  w^ould  be  another  question  how  long  the  parties  are  bound 
by  the  promise  contained  in  such  subscription.  If  no  time  be 
agreed  on,  and  there  be  no  express  withdrawal,  then  the  law 
must  choose  between  the  period  of  legal  presumption,  which 
would  generally  be  twenty  years,  and  the  principle  of  reason- 
able time  ;  and  the  first  alternative  would  be  very  unreasonable, 
and  might  be  very  oppressive.  The  court  would  look  into  all 
the  circumstances  of  each  case,  and  inquire  what  the  parties 
actually  understood  or  intended,  or,  regarding  them  as  rational 
men,  what  they  must  be  supposed  to  have  intended.  And  it 
seems  dillicult  to  reject  this  rule,  without  holding  principles 
which  would  lead  to  the  conclusion  that  one  who  offers  goods 
to  another,  and,  receiving  no  answer,  sells  them  to  a  third  per- 
son a  year  after,  may  still  be  held  by  him  to  whom  the  offer 
was  first  made,  if  he  shall  then  see  fit  to  accept  the  offer;  a 
conclusion  so  wholly  unreasonable  as  to  be  impossible. 

An  analogous  and  closely  connected  question  has  arisen 
where  the  proposition  and  the  reply  are  both  made  by  letter. 
And  as  we  think,  it  must  be  governed  by  the  same  principles. 
We  consider  that  an  otfer  by  lett(!r  is  a  contimiing  offer  until 
the  letter  be  received,  and  for  a  reasonable  time  thereafter, 
during  which  the  party  to  whom  it  is  addressed  may  accept  the 
offc'r.  We  hold  also  that  this  offer  may  be  withdrawn  by  the 
maker  at  any  moment ;  and  that  it  is  withdrawn  as  soon  as  a 
notice  of  such  withdrawal  reaches  the  party  to  whom  the  offer 
is  made,  and  not  before,  (/r)      If,  •therefore,  that  party  accepts 

(t)  Notwithstanding  the  rase  of  Mc-  wcll-scttlcd  law  in  England,  and  in  this 
CuUoch  ?'.  Kiigle  Ins.  Co.  1  Tiek.  281,  conntr)'.  It  was  fir.";!  laid  down  in  Eng- 
we  deem  the  rule  of  the  text  to  be  the     laud  in  Adams  v.  Lindseli,  1  B.  and  Aid. 

[427] 


407- 


THE   LAW    OF   CONTRACTS. 


[book  II. 


the  offer  before  such  withdrawal,  the  bargain  is  completed ; 
there  is  then  a  contract  founded  upon  mutual  assent.  And  an 
acceptance  having  this  effect  is  made,  when  the  party  receiving 
the  offer  puts  into  the  mail  his  answer  accepting  it.  Thus,  if 
A,  in  Boston,  on  the  first  day  of  January,  writes  to  B,  in  Bal- 
timore, making  an  offer,  and  this  letter  reaches  Baltimore  on 
the  third,  and  B  forthwith  answers  the  letter,  accepting  the 
offer,  putting  the  letter  into  the  mail  that  day  ;  and  on  the 
second  of  January  A  writes  withdrawing  the  offer,  and  his  letter 
of  withdrawal  reaches  B  on  the  fourth,  there  is  nevertheless  a 


681,  in  1818.  The  case  of  Cooke  v. 
Oxley,  3  T.  11.  653,  was  there  relied  upon 
by  counsel,  but  the  court  said  "  that  if 
that  were  so,  no  contract  could  ever  be 
completed  by  the  post.  For  if  the  de- 
fendants were  not  bound  by  their  oft'er 
when  accepted  by  the  plaintiff's,  till  tlie 
answer  was  received,  then  the  plaintiff's 
ought  not  to  be  bound  till  after  they  had 
received  the  notification  tliat  the  defend- 
ants had  i-eceived  their  answer  and  as- 
sented to  it.  And  so  it  might  go  on  ad 
infinitum.  The  defendants  must  be  con- 
sidered in  law  as  making,  during  every 
instant  of  the  time  their  letter  was  travel- 
ling, the  same  identical  offer  to  the  jilain- 
tiff's,  and  then  tlie  contract  is  completed 
by  the  acceptance  of  it  by  the  latter.  Then 
as  to  the  delay  in  notifying  the  accept- 
ance, that  arises  entirely  from  the  mistake 
of  the  defendants,  and  it  therefore  must  be 
taken  as  against  tliem,  that  the  plaintiff's' 
answer  was  received  in  course  of  post." 
See  also,  Kennedy  v.  Lee,  3  Meriv.  441. 
And  in  the  late  case  of  Potter  i\  Sanders, 
6  Hare,  1,  decided  in  1846,  a  purchaser 
offered  a  ])rice  for  an  estate,  and  the  ven- 
dor, by  a  letter  sent  by  jiost,  and  received 
by  the  purchaser  the  day  after  it  was  put 
into  tiie  post-office,  accepted  the  offer. 
Held,  that  tlie  vendor  was  bound  by  tlie 
contract  from  tlie  time  when  he  posted  the 
letter,  although  it  was  not  received  by  the 
purchaser  until  the  following  day.  And 
this  rule  was  adopted  by  tiie  House  of 
Lords  in  the  still  later  case  of  Dunlop  v. 
Higgins,  1  House  of  Lords  Cases,  381. 
It  was  there  laid  down,  that  a  letter  offer- 
ing a  contract  does  not  bind  the  party  to 
whom  it  is  addressed  to  return  an  answer 
by  the  very  next  post  after  its  delivery,  or 
to  lose  the  benefit  of  the  contract,  but  an 
answer,  posted  on  the  day  of  receiving  the 

[428] 


offer,  is  sufficient ;    that   the  contract  is 
accepted  by  the  posting  of  a  letter  declar- 
ing its  acceptance  ;  that  a  person  putting 
into  the  i)ost  a  letter  declaring  his  accept- 
ance of  a   contract  offered,  has  done  all 
that  is  necessary  for  him  to  do,  and  is  not 
answerable  for  casualties  occurring  at  the 
post-office.     See  also,  Stocken  v.  Collen, 
7  M.  &  W.  51.5.  —  With  the  exception  of 
Tennessee,  (Gillespie   v.   Edmonston,  11 
Humph.  553,)  the  doctrine  of  Adams  v. 
Lindsell  is  the  established  law  in  this  coun- 
try.    Beckwith  v.  Clicever,  1  Foster,  41  ; 
Brisban  v.  Boyd,  4  Paige,  17  ;  Averill  v. 
Hedge,  12  Conn.  436;  Mactier  v.  Frith, 
6  Wend.  103;  Vassar  i'.  Camp,  14  Barb. 
341,  S.  C.  1  Kernan,  441  ;  Clark  v.  Dales, 
20  Barb.  42 ;  Levy  v.   Cohen,  4  Geo.  1  ; 
Eliason    v.    Henshaw,   4    Wheat.    228 ; 
Chiles  V.  Nelson,  7  Dana,  281  ;  Falls  v. 
Gaither,  9  Porter,  605  ;  Hamilton  v.  Ly- 
coming Mutual   Ins.    Co.    5   Barr,   339, 
where  the  case  of  McCulloch  v.  Eagle 
Insurance    Co.  is   ably   examined.     The 
late  case  of  Tayloe  v.  Merchants  Fire  Ins. 
Co.  9  How.  390,  is  a  strong  case  on  this 
subject.      It  was   there   liM  that  where 
there  was  a  correspondence  relating  to  the 
insurance  of  a  house  against  fire,  the  in- 
surance   company    making    known     the 
terms  upon  which  they   were  willing   to 
insure,   tiie  contract  was  complete  when 
the  insured  placed  a  letter  in   the  post- 
office  accepting  the  terms  ;  and  the  house 
having  been  burned  down  whilst  the  letter 
of  acceptance  was  in  progress  by  the  mail, 
the  company  were  held  responsible.     See 
also.  The  Palo  Alto,  Daveis,  R.  344.     In 
the  late  case  of  Duncan  v.  Topham,  8  C. 
B.  225,  the  same  principle  was  adopted, 
and  the  contract  was  said  to  be  closed  by 
mailing  the  letter  of  acceptance,  although 
it  never  reached  its  destination. 


CH.  II.]  ASSENT.  *408 

contract  made  between  the  parties.  If  the  offer  was  to  sell 
goods,  B,  on  tendering  the  price  may  claim  the  goods  ;  if  the 
offer  was  to  insure  B's  ship,  B  may  tender  the  premium  and 
demand  the  policy,  and  hold  A  as  an  insurer  of  his  ship.  And 
so  of  any  other  offer  or  proposition. 

*We  have  supposed  these  letters  to  be  properly  addressed  and 
mailed,  and  to  reach  the  proper  party  at  a  proper  time.  Cases 
undoubtedly  may  occur  where  there  is  delay  and  hinderance,  and 
the  cause  of  this  may  be  the  fault  of  the  proposer,  or  of  the 
acceptor,  or  of  neither.  Such  cases  may  form  exceptions  to  the 
principle  above  stated,  and  must  be  decided  on  their  own  facts 
and  merits,  and  by  rules  which  are  specially  adapted  to  them. 
But  we  should  state  as  the  general  rule  what  was  lately  de- 
clared to  be  law  by  the  House  of  Lords  ;  that  if  the  party  re- 
ceiving an  offer  by  letter,  put  his  answer  of  acceptance  into  the 
mail,  he  has  done  all  that  he  could  do,  and  is  in  no  way  respon- 
sible for  the  casualties  of  the  mail  service,  (kk) 

(kh)  See  Dunlop  v.  Higgins,  1  House  of  Lords  Cases,  381,  cited  in  last  note; 
Duncan  v.  Topham,  8  C.  B.  222. 

[429] 


t 


BOOK    III. 


THE  SUBJECT-MATTER  OF  CONTRACTS. 


]^>  0  0  K    III. 


CHAPTER    I. 

PRELIMINARY   REMARKS. 

The  subject-matter  of  every  contract  is  something  which  is  to 
be  done,  or  which  is  to  be  omitted.  No  very  precise  or  logical 
division  and  classification  of  these  various  things  is  known  to 
the  common  law.  The  division  stated  and  followed  in  the 
Pandects,  and  referred  to  by  Blackstone,  (/)  is  exact  and  ra- 
tional. It  recognizes  four  species  of  contracts  ;  —  DoiitDes; 
Facio  ut  Facias ;  Facio  vt  Des ;  Do  ut  Facias.  But  this  divi- 
sion is  not,  in  the  civil  law,  strictly  followed.  The  whole  sub- 
ject of  purchase  and  sale  {emptio  et  vcnditio),  is  treated  of  before 
this  division  is  introduced,  (m)  Blackstone  says,  "  of  this  kind 
(Do  ut  Dcs)  are  all  sales  of  goods."  But  in  fact  it  seems  to  be 
confined  to  giving  a  thing  (not  money)  to  receive  a  thing  in 
return. 

It  is  impossible  to  make  much  use  of  this  classification,  in 
exhibiting  the  rules  of  the  common  law  in  relation  to  contracts ; 
and  the  arrangement  of  the  subject-matters  of  contracts  which 
we  have  adopted  is  the  following.  We  shall  treat  of  Con- 
tracts, 

1.  For  the  Purchase  and  Sale  of  Real  Estate. 

2.  For  the  Hiring  of  Real  Estate. 

(/)  2  Bl.  Coram.  444.  18,  tit.  18.     Do  ut  des,  &c.     Pandects,  lib. 

(m)  Emptio  et  vemlttio.     Pandects,  lib.     19,  tit.  5,  art.  1,  sect.  4. 

VOL.  I.  37  [  433  ] 


412  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

3.  For  the  Purchase  and  Sale  of  Chattels. 

4.  For  the  Purchase  and  Sale  of  Chattels  with  warranty. 

5.  Of  the  Right  of  Stoppage  in  transitu. 

6.  For  the  Hiring  of  Chattels. 

7.  Of  Guaranty. 

8.  For  the  Hiring  of  Persons. 

9.  For  Service  generally. 

10.  Of  and  in  Relation  to  Marriage. 

11.  _Of  Bailment. 

Before,  however,  considering  these  topics  severally,  a  few 
words  may  be  said  of  the  remedy  which  the  common  law  af- 
fords for  injury  sustained  by  a  breach  of  a  contract  to  do  a 
specific  thing. 

Where  the  thing  to  be  done  is  the  payment  of  money,  there, 
in  general,  the  remedy  is  adequate  and  perfect.  But  where  the 
thing  to  be  done  is  any  thing  else  than  the  payment  of  money, 
there  the  common  law  can  give  only  a  remedy  which  may  be 
entirely  inadequate  ;  for  it  can  give  only  a  money  remedy. 
The  foundation  of  the  common  law  of  contracts  may  be  said  to 
be  the  giving  of  damages  for  the  breach  of  a  contract.  And 
even  where  the  contract  is  specifically  for  the  payment  of  money, 
and  for  nothing  else,  still  the  law  does  not,  generally,  in  form, 
decree  an  execution  of  the  contract,  but  damages  for  the  breach 
of  it.  If  an  action  be  brought  upon  a  promissory  note,  or  a 
covenant,  the  plaintiff  sets  forth  the  contract  and  the  breach, 
and  does  not  pray  for  an  execution  of  it ;  but  he  sets  forth  also 
the  damages  he  has  sustained,  and  claims  them.  The  action 
of  debt  may,  it  is  true,  be  brought,  not  only  on  a  bond,  but 
upon  many  simple  contracts ;  and  in  this  action  the  payment 
of  the  money  due  is  directly  demanded,  and  such  is  the  judg- 
ment if  the  plaintiff  recovers  ;  but  this  action  is  not  much  used 
at  the  present  time,  in  this  country  at  least,  to  enforce  simple 
contracts.  Where  the  contract  is  for  any  other  thing  than  the 
payment  of  money,  the  common  law  knows  no  other  than  a 
money  remedy ;  for  it  has  no  power  to  enforce  the  specific  per- 
formance of  a  contract,  with  the  exception  only  of  those  money 
contracts  for  which  debt  will  lie. 

This  inability  of  the  common  law  was  among  the  earlier 
[434] 


I 


Cir.    I.]  PRELIMINARY   REMARKS.  413 

and  most  potent  causes  which  gave  rise  to  courts  of  equity  ;  for 
these  courts  have,  both  in  England  and  in  this  country,  a  very 
complete  jurisdiction  over  this  class  of  cases.  Perhaps  this  ap- 
parent defect  in  the  common  law  may  be  explained,  by  sup- 
posing that  originally  the  action  of  debt  gave  the  power  of 
compelling  performance  in  fact  in  the  great  majority  of  cases 
which  recinircd  it,  and  that  the  comparative  disuse  of  this  action, 
and  the  coming  into  notice  of  the  great  variety  of  other  cases 
in  which  this  power  was  needed  to  do  justice,  occurred  after  the 
forms  of  the  common  law  had  become  fixed,  and  when  there 
was  a  great  unwillingness  in  the  courts  to  change  or  enlarge 
them;  and  when  also  another  court  had  grown  up  which  had 
full  power  in  all  such  cases.  However  this  may  be,  this  defect 
in  the  common  law,  which  must  be  felt  more  and  more  sensibly 
as  society  advances  beyond  the  point  at  which  it  is  willing  to 
measure  all  rights  and  wrongs  by  a  money  standard,  is  one 
cause,  undoubtedly,  of  the  disposition  which  is  manifesting 
itself  in  this  country  to  bring  together  all  common-law  and 
all  equity  powers  of  preventing  wrong  and  enforcing  right;  as 
has  been  done,  or  attempted  to  be  done  in  New  York,  by  their 
last  Revised  Code;  and  as  will,  we  think,  be  done  in  other 
States  of  this  Union,  in  some  form  and  in  some  measure. 

[435  J 


414 


THE   LAW   OF   CONTRACTS. 


[book  ni. 


CHAPTER  11. 

PURCHASE   AJ\D    SALE   OF   REAL   PROPERTY. 

Conveyances  of  real  property  are  made  by  deed,  which  we  do 
not  propose  to  consider  at  present.  But  simple  contracts  are 
often  made  for  the  purchase  of  real  estate,  and  the  specific  per- 
formance of  these  contracts  may  be  enforced  in  equity,  (n)  or 
by  actions  brought  on  them  at  common  law.  (o)  Neither  equity 
nor.  law  will  enforce  such  contract,  if  it  be  founded  upon 
fraud,  [p)  or  gross  misrepresentation,  (q)  or  upon  an  intentional 
concealment  of  an  important  defect  in  or  objection  to  an  es- 
tate ;  (/•)  but  a  mere  inadequacy  of  price  is  not  sufficient  to 
avoid  it.  (5) 


(n)  That  specific  performance  of  con- 
tracts for  tlie  sale  or  purdiase  of  railway 
shares  will  be  enforced  inequity,  seeDun- 
cuft  V.  Albrecht,  12  Sim.  189;  Shaw  v. 
Fisher,  12  Jur.  152;  Wynne  i\  Price,  13 
id.  295.  —  The  idea  formerly  entertained, 
that  a  court  of  equity  might  award  com- 
pensation for  non-performance  of  a  con- 
tract of  sale,  is  now  exploded.  Todd  r. 
Gee,  17  Ves.  273;  Saiusbmy  v.  Jones,  5 
Myl.  &Cr.  1. 

(o)  See  Moses  v.  McFerlan,  2  Burr. 
1011  ;  Farrer  v.  Nightingal,  2  Esp.  639  ; 
Squire  v.  Tod,  1  Camp.  293.  It  seems 
that  if  the  sul)ject-matter  of  the  contract 
be  such  that  both  vendor  and  purchaser 
would  be  reimbursed  by  damages,  a  court 
of  ec[uity  will  decline  to  interfere,  and  will 
leave  a  party  to  his  remedy  at  law.  This 
is  the  case  in  ordinary  agreements  for  the 
sale  of  stock.  Cud  v.  Rutter,  1  P.  Wms. 
570  ;  Nutl)rown  v.  Thornton,  10  Ves.  159. 
—  It  has  been  thought,  however,  that  in 
some  cases  a  bill  in  equity  for  specific  per- 
formance ought  to  be  maintained  in  such 
contracts.  See  2  Story,  Eq.  Juris.  §  717, 
724. 

(p)  See  Davis  r.  Symonds,  1  Cox,  407; 

[436] 


SejTnour  i\  Delancey,  6  Johns.  Ch.  225 ; 
Acker  i\  Phcenix,  4  Paige,  305  ;  Nellis  v. 
Clark,  20  Wend.  24  ;  Miller  v.  Chetwood, 
1  Green's  Ch.  199;  Clement  v.  Reid,  9 
Smed^s  &  Marsh.  535. 

{q)  Cadman  v.  Horner,  18  Ves.  10. 
In  this  case  the  purchaser  was  plaintiff, 
and  was  the  seller's  agent,  and  specific 
performance  was  refused,  because  he  had 
represented  to  the  seller  that  the  houses 
had  been  injured  by  a  flood,  and  would 
require  between  £40  and  .£50  to  repair 
them,  whereas  40s.  would  have  repaired 
the  damages.  See  also,  Lord  Clermont 
V.  Tasburg,  1  Jac.  &  Walk.  112  ;  Barker 
V.  Harrison,  2  Coll.  546  ;  Best  v.  Stow,  2 
Sandf.  Ch.  298  ;  Schmidt  v.  Livingston, 
3  Edw.  213;  Rodman  v.  Zilley,  Saxton, 
320;  Brealey  r.  Collins,  Younge,  317. 

(r)  But  general  statements  by  a  seller, 
although  not  tlie  whole  truth,  will  not 
amount  to  such  misrepresentation  as  to 
avoid  the  contract.  See  Fenton  v.  Browne, 
14  Ves.  144;  Lowndes  v.  Lane,  2  Cox, 
363. 

(s)  Whiteficld  v.  McLeod,  2  Bav,  380; 
Stewart  v.  The  State,  2  Harr.  &  Gill,  114; 
Knobb  V.  Lindsay,  5  Ham.  472  ;  Osgood 


I 


CH.  11.]    PURCHASE  AND  SALE  OF  REAL  PROPERTY.      415-*41(> 

Estates  are  frequently  sold  at  auction  ;  and  in  that  case  the 
plans  and  descriptions  should  be  such  as  will  give  true  informa- 
tion to  such  persons  as  ordinarily  attend  such  sales;  (^)  and  if 
these  descriptions  are  written  or  printed,  and  circulated  among 
the  buyers,  or  conspicuously  posted  in  their  sight,  they  cannot 
be  controlled  by  verbal  declarations  *made  by  the  auctioneer  at 


V.  Franklin,  2  Johns.  Cli.  R.  1  ;  Coles  v. 
Trecotliick,  9  Ves.  (Sumner's  cd.)  234  ; 
Woodtock  r.  I'ennet,  1  Cow.  733;  Min- 
turn  r.  Seymour,  4  .Jolins.  Ch.  H.  500. 
But  inafleciuaey  of  priec  if  pross,  and  at- 
teniied  by  circumstances  evincing  uncon- 
scientious advantage  taken  l)y  the  pur- 
chaser of  the  improvidence  and  distress  of 
the  vendor,  will  avoid  the  contract  in 
ef|uitv,  although  the  contract  he  executed. 
McKiunev  c.  I'inckard,  2  Leigh,  149; 
Kvans  v.'  Llewellyn,  2  Bro.  C.  C.  1.50. 
See  Groves  v.  Perkins,  6  Sim.  576 ; 
Sturgc  V.  Sturge,  14  Jur.  159.  And  if 
the  inadequacy  of  price  is  .^o  gross  as  to 
he  itself  stifHcient  evidence  o^  fraud,  then 
the  contract  will  be  void.  See  liicc  v. 
Gordon,  11  Beavan,  205.  But  an  ine- 
fpiality  of  price,  in  order  to  amount  to  a 
fraud,  must  be  so  strong  and  manifest  as 
to  shock  the  conscience  and  confound  the 
judgment  of  anv  man  of  common  sense. 
Osgood  V.  Franklin,  2  Johns.  Ch.  R.  23  ; 
and  see  How  v.  AVeldon,  2  Ves.  Sen.  51  (i ; 
Gwynnc  v.  Ileaton,  1  Bro.  C.  C.  9  ;  Coles 
r.  Trccolhick,  9  Ves.  24fi. — Although 
inadequ.-icy  of  ])ricc  is  not  a  ground  for 
decreeing  an  agreement  to  be  delivered 
up,  or  a  sale  rescinded,  (unless  its  gross- 
ness  amounts  to  fraud,)  yet  it  may  be  suf- 
ficient for  the  court  to  refuse  to  enforce 
performance.  Osgood  )'.  Fianklin,. ";»/<?•«  ; 
IVlortlock  V.  Buller,  10  Ves.  292  ;  Day  /•. 
Newman,  cited  in  Mortlock  c.  Builer. 
See  also,  (into,  page  *3f)2. 

(/)  If  there  is  a  misdescription  in  the 
plan  and  spccitieation,  the  purchaser  is 
not  bouiiil  to  comiilete  the  contract. 
Dykes  v.  Blake,  4  Biiig.  N.  C.  463.  In 
this  case,  by  the  particulars  of  sale,  lot  13 
Avas  described  as  building  ground,  and  the 
adjoining  lot  12  as  a  villa,  subject  to  lib- 
erty for  the  jnirchaser  of  lot  1  to  come  on 
the  i)remiscs  to  rejiair  drains,  v<:e.,  ius  re- 
served in  lot  7.  The  reservation  in  lot 
7  referred  to  a  lease,  which  gave  the  occu- 
pier of  that  and  the  several  adjoining  lots, 
composing  a  row  of  houses,  a  carriage-way 
in  conmion,  in  front  of  the  lots,  and  a 
footway  at  the  back,  and  also  a  footway 

37* 


over  lot  13.  The  particulars  contained 
plans  which  disclosed  the  carriage-way  in 
front,  and  the  footway  at  the  back  of  the 
liouses,  l)Ut  not  the  footway  over  lot  13. 
But  they  stated  that  the  lease  of  lot  7 
might  be  seen  at  the  vendor's  office,  and 
would  be  produced  at  the  sale.  The 
plaintiff  having  purchased  lots  12  and  13, 
by  one  contract,  in  ignorance  of  the  foot- 
wav  over  lot  13,  it  was  held  that  the  mis- 
description was  such  as  to  entitle  him  to 
rescind  the  contract  as  to  both.  See  al.<o, 
Adams  r.  Lambert,  2  Jur.  1078  ;  Robin- 
son r.  Musgrove,  8  C.  &  P.  469  ;  Tavlor 
V.  Mortindale,  1  Y.  &  C,  C.  C.  658; 
Svmons  v.  James,  id.  490 ;  Martin  v. 
Cotter,  3  Jones  &  Lat.  506.  "  If  the  de- 
scription be  substantially  true,  and  lie  de- 
fective or  inaccurate,  in  a  slight  degree 
only,  the  ]iurchaser  will  be  required  to 
])crforin  the  contract,  if  the  sale  be  fair  and 
the  title  good.  Some  care  and  diligence 
must  be  exacted  of  the  purchaser.  If 
every  nice  and  critical  objection  be  admis- 
silile,  and  sufficient  to  defeat  the  sale,  it 
would  greatly  imitair  the  efficacy  and 
value  of  public  judicial  sales;  and  there- 
fore, if  the  i)urchaser  gets  substantially 
the  thing  for  which  he  bargained,  he  may 
generally  be  held  to  abide  by  the  ptn-cha.^e, 
with  the  allowance  of  some  deduction 
from  the  price  by  way  of  compensation 
for  any  small  dciicieucy  in  the  value,  by 
reason'of  the  variation.  2  Kent,  Comm. 
437  ;  King  r.  Bardcau,  6  Johns.  Rep.  38. 
The  estate  cannot  fie  too  minutely  <le- 
scribcd  in  the  particulars  ;  for,  although  it 
is  impossible  that  all  the  jiarticulars  rela- 
tive to  the  quantity,  the  situation,  &c., 
sliould  t)e  so  specifically  laid  down  as  not 
to  call  for  some  allowance  when  the  bar- 
gain comes  to  be  executed ;  yet  if  a  per- 
son, however  little  conversant  with  the 
actual  situation  of  his  estate,  will  give  a 
description,  he  must  be  l)ound  by  that 
whether  conversant  of  it  or  not.  See  Jud- 
son  V.  Wass,  1 1  Johns.  525,  3  Cranch,  270, 
2  Hay,  11."  Dart  on  Vendors  and  Pur- 
ehasers,  Am.  cd.  p.  51,  n.  2. 

[437] 


^ 


417* 


THE    LAW    OF    CONTRACTS. 


[book   III. 


the  time  of  the  sale.  (?/)  And  even  if  it  be  provided  in  the 
terms  of  sale  that  any  error  or  misstatement  in  the  descrip- 
tion shall  not  avoid  the  sale,  but  be  allowed  for  in  the  price, 
such  provision  will  not  cover  any  misstatement  of  a  substantial 
and  important  character  ;  but  the  purchaser  may,  on  that  ground, 
rescind  the  sale,  (r)  And  if  the  error  be  wholly  unintentional, 
but  such  that  the  amount  of  compensation  to  be  allowed  there- 
for cannot  be  exactly  calculated,  the  contract  may  be  re- 
scinded, (ifj)  *"Wherever  there  is  any  material  mistake,  and  no 
such  provision  respecting  it,  the  vendor  cannot  offer  a  pro  tanlo 


(?;)  Giinnis  v.  Erhait,  1  11.  Bl.  289  ; 
Bradshaw  r.  Bennett,  5  C.  &  P.  48  ;  Can- 
non V.  Mitcliell,  2  Dcs.  320 ;  Shelton  v. 
Livius,  2  Cr.  &  Jer.  411  ;  To  well  v.  Ed- 
munds, 12  East,  6  ;  Ogilvie  v.  Fo'.jamhe, 
3  Mer.  53  ;  Rich  v.  Jackson,  4  Bro'.  C.  C. 
514;  Wi-io;ht  V.  Dekline,  Peters,  C.  C. 
199;  llanlvin  v.  Mnttlicws,  7  Ired.  286. 
And  it  makes  no  difference  tliat  the  ques- 
tion arises  on  a  sul)-sale  of  tlie  same  prem- 
ises by  tlic  purchaser.  Shelton  i\  I;ivius, 
2  Cr.  &  Jer.  411.  The  rule  applies  in 
favor  of  the  seller  as  well  as  the  purchaser. 
Powell  V.  Edmunds,  12  East,  6.  The 
case  of  Jones  r.  Edney,  3  Camp.  285,  is 
not  at  variance  with  the  rule  stated  in  the 
text.  That  was  a  case  of  a  sale  at  auc- 
tion of  the  lease  of  a  pulilic-house.  The 
house  was  described  in  the  conditions  of 
sale  as  "  a  free  public-house ;  "  but  the  lease 
under  which  it  was  held  contained  in  fact 
a  proviso  that  the  lessee  and  his  assigns 
should  take  all  their  beer  from  a  particular 
brewery.  At  the  sale,  the  auctioneer  read 
over  the  whole  lease  in  the  hearing  of  the 
bidders,  and  Avhen  he  came  to  the  proviso, 
being  asked  how  the  house  could  be  called 
"a  free  public-house, he  answered,  "That 
clause  has  been  done  away  with.  There 
has  been  a  trial  upon  it  before  Lord  El- 
lenborougli,  who  has  decided  it  to  be  bad. 
I  warrant  it  as  a  free  public-house,  and 
sell  it  as  such."  The  plaintiff  bid  off  the 
house  and  paid  a  deposit,  but  afterwards 
finding  that  the  clause  might  still  be  en- 
forced, he  brought  this  action  to  recover 
the  deposit  back.  It  was  /((/(/ that  he  was 
entitled  to  recover.  Lord  Ellenhoroucjh 
said :  "  In  the  conditions  of  sale  this  is 
stated  to  be  '  a  free  public-house.'  Had 
the  auctioneer  afterwards  verbally  contra- 
dicted this,  I  sliould  ha\e  paid  verj^  little 
attention  to  what  he  said  from  his  pulpit. 

[438] 


Men  cannot  tell  what  contracts  they  enter 
into  if  the  written  conditions  of  sale  are 
to  be  controlled  by  the  babble  of  the  auc- 
tion-room. But  liere  the  auctioneer,  at 
the  time  of  the  sale,  declared  that  he  war- 
ranted and  sold  this  as  a  free  public-house. 
JJnder  these  circumstances  a  bidder  was 
not  bound  to  attend  to  the  clauses  of  the 
lease,  or  to  consider  their  legal  operation." 

(r)  Duke  of  Norfolk  r.  Worthy,  1 
Cam)).  337  ;  Stewart  v.  Alliston,  1  Mer. 
26  ;  Bobinson  v.  Musgrove,  2  Moodv  & 
Bob.  92  ;  Leach  v.  Mullet,  3  C.  &  P.  115. 

(w)  Dobell  V.  Hutchinson,  3  Ad.  &  El. 
355.  This  was  a  sale  of  a  leasehold  in- 
terest of  lands,  described  in  the  particulars 
as  held  for  a  term  of  twenty-three  years, 
at  a  rent  of  £55,  and  as  comprising  a 
yard.  One  of  the  conditions  was,  that  if 
any  mistake  should  be  made  in  the  de- 
scription of  the  property,  or  any  other 
error  whatever  should  appear  in  the  par- 
ticulars of  the  estate,  such  mistake  or 
error  should  not  annul  or  vitiate  the  sale, 
but  a  com])ensation  should  be  made,  to  be 
settled  b}^  arbitration.  The  yard  was  not, 
in  fact,  comjDreiiended  in  the  property  held 
for  the  term  at  £55,  Init  was  held  by  the 
vendor  from  year  to  year,  at  an  additional 
rent.  It  was  essential  to  the  enjoyment 
of  the  property  leased  for  the  twenty- 
three  years.  It  did  not  appear  that  the 
vendor  knew  of  the  defect.  The  court 
held  that  this  defect  avoided  the  sale,  and 
was  not  a  mistake  to  be  comi)ensated  for 
under  the  above  condition  ;  although  after 
the  day  named  in  the  conditions  for  com- 
pleting the  purchase,  and  before  action 
brought  by  the  vendee,  tlie  vendor  pro- 
cured a  lease  of  the  yard  for  the  term  to 
the  vendee,  and  offered  it  to  him.  See 
also,  Alills  V.  Oddy,  2  Crompt.  Mecs.  & 
Eos.  103. 


en.  II.] 


PURCHASE  AND  SALE  OF  REAL  PROPERTY. 


-417 


allowance,  and  enforce  the  sale  against  the  purchaser.  And 
these  principles  would  hold  in  the  case  of  a  sale  not  at  auction, 
so  far  as  they  were  applicable,  (x) 

If  an  estate  be  sold  in  separate  lots,  and  one  person  buy 
many  lots,  there  is,  by  the  later  adjudications  and  the  better 
reasons,  a  distinct  contract  for  each  lot.  {//)  But  where  the  con- 
tract is  written  and  signed  for  the  purchase  of  several  lots  at  one 
aggregate  price,  it  is  one  contract ;  and  this  is  so  where  this 
contract  was  subsecpient  to  a  sale  of  the  same  lots  severally  and 
at  several  jjrices  to  the  same  purchaser.  (2)  And  if  a  vendor 
sell  an  estate  as  one  lot,  and  has  title  to  a  part,  but  not  to  the 
whole,  he  cannot  enforce  the  sale;  (a)  but  if  he  sells  in  several 
wholly  independent  lots,  it  would  seem  reasonable  that  he 
should  enforce  it  as  to  those  to  which  he  could  make  title,  as 
held  by  Lord  Brougham ;  {b)  but  we  should  not  consider  the 
lots  as  wholly  independent,  if  in  point  of  fact  the  buying  of 
them  all  was  for  any  reason  a  part  of  the  inducement  or 
motive  of  the  buyer  in  making  the  purchase. 

There  has  been  much  question  whether  a  sale  at  auction 
might  be  avoided  by  the  purchaser,  because  by-bidders  or 
puti'ers  were  employed  by  the  owner  or  auctioneer.  The  proper 
way  is  undoubtedly  to  give  notice  of  such  a  thing  at  the  sale; 
but  the  weight  of  authority  in  this  country,  as  well  as  that  of 


fc 


(r)  Ilibbert  v.  Slice,  1  Camp.  113; 
Rol)iiison  V.  Musgrove,  2  Mood.  &  Kob. 
92. 

{1/)  This  was  expressly  held  in  Emmcr- 
^on  V.  Ilcelis,  2  Taunt.  38.  See  also 
James  v.  Shore,  1  Stark.  426.  The  con- 
tnicts  are  separate,  iioth  in  law  and  fact. 
Id.;  lUiots  V.  Lord  Dormer,  4  IJ.  &  Ad. 
77  ;  Baldev  v.  Parker,  2  H.  &  C.  44,  /irsi, 
J. ;  Seatoii  v.  Booth,  4  Ad.  &  El.  528  ; 
Gibson  i\  Spurrier,  IVake's  Add.  Cas. 
49  ;  Dykes  v.  Blake,  4  Bin^,'.  N.  C.  463. 
But  see  Van  Eps  r.  Schenectady,  12 
Johns.  436;  Stoddart  c.  Smith,  .'>  Biini. 
35,') ;  Waters  v.  Travis,  9  Johns.  450. 

(z)  Dykes  r.  Blake,  4  Bin}.'.  N.  C.  463. 
See  Chambers  r.  (Jritliths,  1  Esp.  150; 
Di-ewe  c.  Hanson,  6  Ves.  675  ;  Hepburn 
r.  Auld,  5  Cranch,  262  ;  Osborne  /•.  Biv- 
mar,  1  Des.  486  ;  Casamajor  r.  Strode,  2 
Myl.  &  K.  724;  Lcwin  i-.  Guest,  1  Buss. 


325;  Ilarwood  v.  Bland,  Flan.  &  Kel. 
540. 

(d)  2  Story,  Eq.  Jur.  §  778;  Reed  u. 
Noe,  9  Yer<r.  283;  Dali)y  v.  Bullen,  3 
Sim.  29;  Bates  v.  Delavan,  5  Pai<:e,  300; 
Johnson  v.  Johnson,  3  Bos.  &  I'ul.  162; 
Parham  v.  Randolph,  4  How.  (Miss.)  435. 
But  if  the  part  to  which  the  seller  has  title 
was  the  purchaser's  princijial  oliject,  or 
e(pially  his  object  with  the  other  part,  and 
is  itself  an  independent  subject,  and  not 
likely  to  be  injured  by  being  se|)arated 
from  the  other  )>art,  e<|uity  will  compel 
the  purchaser  to  take  it  at  a  propoilionate 
jirice.  See  McQuin  r.  Fanpihar,  11  Ves. 
467;  Bowyer  v.  Bri-^ht,  13  Price,  698; 
Bu<k  r.  McCau«,ditry,  5  Monroe,  230 ; 
Simpson  v.  Hawkins,  1  Dana,  305 ;  Col- 
lard  r.  Groom,  2  J.  J.  Marsh.  488. 

{!>)  Cuisamajor  v.  Strode,  2  Mv.  &  K. 
706. 

[.139] 


I 


418* 


THE   LAW   OF   CONTRACTS. 


[book   III. 


many  cases  in  England,  is  in  favor  of  permitting  an  owner, 
without  notice,  to  employ  a  person  to  bid  for  him,  if  *he  does 
this  with  no  other  purpose  than  to  prevent  a  sacrifice  of  the 
property  under  a  given  price.  (6')  It  must  be  often  difficult 
however,  to  draw  the  line  between  an  honest  procedure  of  this 
sort  and  a  fraudulent  design.  It  is  certain  that  any  unfair  con- 
duct on  the  part  of  the  purchaser  in  regard  to  his  purchase  pre- 
vents his  acquiring  any  title  to  the  goods,  {d) 

At  an  auction  the  contract  of  sale  is  not  completed  until  the 
auctioneer  knocks  the  property  down  to  the  purchaser ;  for  he  is 
the  agent  of  the  vendor,  and  this  is  his  assent  to  the  offer  of  the 
purchaser,  and  until  such  assent  be  given  the  offer  may  be  with- 
drawn, (e) 

If  an  auctioneer  does  not  disclose  the  name  of  the  owner  of 
the  property  which  he  sells,  he  is  himself  liable  to  an  action  by 
the  buyer  for  the  completion  of  the  contract.  (/)  And  it 
would  be  so  if  he  sold  or  warranted  without  authority,  (g-)  If 
he  has  the  authority  of  the  owner  to  warrant,  and  does  so,  dis- 
closing the  name  of  the  owner,  he  is  himself  exonerated  from 
the  warranty,  and  the  owner  is  liable  upon  it.  (h)  And  he  has 
such  special  property  in  the  goods  that  he  may  bring  an  action 
for  the  price,  even  if  the  goods  be  sold  in  the  house  of  the 
owner,  and  were  known  to  be  his.  (i)     But  the  buyer  may  set 


(c)  This  right,  provided  there  exists  no 
actual  intention  to  defraud,  is  reco<^nized 
by  many  recent  authorities.  See  Latham 
V.  Morrow,  G  B.  INlonroe,  630;  National 
Fire  Ins.  Co.  v.  Loomis,  11  Paige,  431  ; 
Bowles  V.  Round,  5  Ves.  Jr.  508,  Sum- 
ner's ed.  and  note  b. ;  Crowder  v.  Austin, 
3  Bing.  368  ;  Veazic  v.  Williams,  3  Story, 
622;  Thornett  v.  Haines,  15  M.  &  W. 
371  ;  AVheeler  r.  Collier,  Mood.  &  Malk. 
123  ;  Dart  on  Vend.  ]).  89.  Coiitrn,  Towle 
V.  Lcavitt,  3  Foster,  360  ;  Pennock's  Ap- 
peal, 14  Pcnn.  446;  Staines  v.  Shore,  16 
Penn.  200. 

(d)  Fuller  i\  Abrahams,  6  Moore,  316, 
3  Brod.  &  Bing.  116;  Smith  v.  Greenlee,  2 
Dev.  126. 

(e)  Paine  v.  Cave,  3  T.  R.  148 ;  Rout- 
ledge  V.  Grant,  4  Bing.  653.  If  the  bid 
be  retracted,  the  retraction  must  bo  loud 

[  440  ] 


enough  to  be  heard  by  the  auctioneer, 
otherwise  it  amounts  to  nothing.  Jones 
V.  Nanne}',  McCIe.  39,  13  Price,  103. 

(/")  Hanson  r.  Roberdcau,  Peake's  Cas. 
120;  Franklvn  v.  Lamond,  4  C.  B.  637; 
Mills  V.  Hunt, -20  Wend.  431  ;  Jones  v. 
Littledale,  6  Ad.  &  Ell.  486. 

(fj)  Sngd.  Law  of  Vendors,  10th  ed. 
vol.  1,  p.  70;  Jones  v.  Dvke,  id.  vol.  3, 
App.  8;   Gal)y  r.  Driver,  2*Y.  &  Jcr.  549. 

{h)  An  ructionecr  in  such  case  is  like 
any  other  agent,  and,  unless  he  acts  be- 
yond his  autliority,  binds  his  pi'incipal, 
but  not  himself. 

(/)  Williams  V.  Millington,  1  H.  Bl. 
81  ;  Coppin  v.  Walker,  7  Taiuit.  237. 
But  where  the  person  employing  the  auc- 
tioneer to  sell  has  no  right  so  to  do,  the 
auctioneer  has  no  claim  upon  tlic  property 
against  the  rightful  owner,  and  the  piu"- 


CH.  II.] 


PURCHASE  AXD  SALE  OF  REAL  PROPERTY. 


*419 


off  a  debt  due  to  him  from  the  owner,  (j)  And  if  the  auction- 
eer sell  the  property  of  A  as  the  property  of  B,  and  the  buyer 
pay  the  price  to  B,  the  auctioneer  cannot  *recover  it  of  the 
buyer,  (k)  It  is  said  that  after  the  sale  is  finished  the  auction- 
eer is  no  longer  the  agent  of  the  owner,  and  a  payment  to  him 
of  the  price  is  not  a  payment  to  the  owner.  (/)  But  where  the 
auctioneer,  by  usage,  or  on  other  evidence,  can  be  shown  to 
have  authority  to  receive  the  money,  such  payment  must  dis- 
charge the  buyer,  (w)    It  is  the  duty  of  the  auctioneer  to  obtain 


chaser  may  refuse  to  pay  the  auctioneer. 
Dickenson  v.  Naule,  1  Nov.  &  Man.  721. 
See  aiifc,  83,  vol.  2,  248. 

( /)  Coppin  V.  Craijr,  7  Taunt.  24.3. 

(I)  Coppin  V.  WalJicr,  7  Taunt.  237. 

(/)  Sykes  r.  Giles,  .5  M.  &  W.  G45.  In 
this  ca.se  the  ])laintitf  haviu}^  employerl  an 
auctioneer  to  sell  certain  timlier  fjjrowinj^ 
on  his  estate,  the  following,  anionj^st  other 
conditions,  were  read  at  the  sale,  in  the 
presence  of  the  defendant :  "  That  each 
purchaser  should  pay  down  a  deposit  of 
£10  per  cent,  in  part  of  the  purchase- 
money,  and  pay  the  remainder  on  or  he- 
fore  the  17th  of  Aupust ;  hut  in  c;i,se  any 
j)urchaser  should  ])refer  to  pay  the  whole 
amount  of  his  i)urchase-money  at  an 
earlier  period,  discount  after  the  rate  of  £5 
per  cent,  will  he  allowed."  Also,  "  that 
each  ])urcliaser  shall  enter  into  a  proper 
agreement  and  bond,  if  rc(piircd,  with 
Bucii  one,  two,  or  more  sureties  as  shall  he 
approved  hy  tlie  vendor  or  his  agent,  for 
tlic  performance  of  liis  ajTrecment,  pursu- 
ant to  the  ahovc  conditions."  Tlie  de- 
fendant hecame  the  |)urchaser  of  one  lot, 
and  i)aid  the  deposit.  Some  days  after 
the  sale,  wliich  was  on  the  14th  of  Fehru- 
arj',  the  defendant,  at  the  auctioneer's  re- 
quest, drew  a  l)ill  of  exchange  for  the  resi- 
due of  the  ])ureliase-money,  dated  on  the 
day  of  the  sale,  on  one  J.  M.,  i)ayahle  six 
months  after  date  to  his  own  order,  and 
indorsed  it  to  the  auctioneer,  who,  being 
in  diflicidties,  indorsed  it  to  a  third  pei-son, 
to  wiioni  he  was  indchtcd  on  his  own  ac- 
count. The  hill  hecame  due  on  the  I7lh 
of  August,  when  the  amount  of  it  was  duly 
paid  to  the  holder.  It  was  never  trans"- 
fcrred  to  the  plaintiff.  /A/./,  that,  under 
these  circumstances,  the  delivery  and  pay- 
ment of  the  hill  of  exchange  was  nota 
valid  payment  of  the  residue  of  the  ]iur- 
chase-money  for  the  timber  i)urchased  by 
the  defendant,  the  auctioneer   having  no 


authority  to  receive  payment  of  such  resi- 
due, or  to  take  any  security  for  the  pay- 
ment of  it ;  but  that  even  if  he  were 
authorized  by  the  conditions  to  receive 
payment,  the  payment  required  was  a 
payment  in  cash,  and  he  had  no  authority 
to  take  a  bill  of  exchange.  Parh',  B.  : 
"  The  (|uestion  here  is,  what  authority 
the  auctioneer  had.  The  extent  of  that 
authority,  in  tlie  absence  of  any  proof  of 
general  authority,  must  dej)en(l  upon  the 
conditions  of  sale.  The  oidy  authority 
given  to  the  auctioneer  hy  these  conditions 
is,  to  receive  the  deposit  money ;  the 
vendor  reserves  to  himself  or  his  agent 
the  power  to  receive  the  remainder  of 
the  ])urchase-money.  As  no  agent  is 
named  for  that  puri)ose,  the  payment 
must  he  to  the  princi])al,  or  some  general 
agent,  which  the  auctioneer  certainly  was 
not ;  for  the  word  '  agent  '  in  the  sixth 
condition  clearly  does  not  refer  to  him. 
By  the  third  condition  the  remainder  of 
the  money  is  to  be  paid  on  or  before  the 
17th  of  August,  but  such  payment  is  not 
to  be  to  the  auctioneer,  but  the  vendor. 
Then  tiiat  part  of  the  condition  which 
provides  that  the  purchaser  may,  if  he  shall 
))rcfer  it,  pay  the  whole  money  at  an 
earlier  period,  must  also  be  construed  to 
mean  that  he  shall  ])ay  it  to  the  same  per- 
son, that  is,  the  vendor  or  his  agent.  But 
even  if  the  auctioneer  had  had  authority  to 
receive  the  remainder  of  the  purchase- 
money,  he  had  no  authority  to  receive 
it  in  this  way  by  means  of  a  bill  of  ex- 
change. C'ash  jiayment  was  intended, 
and  not  a  bill  of  exchange.  My  opinion, 
however,  is,  that  under  the  terms  of  the 
conilitions  of  sale,  the  vendor  is  to  receive 
the  purchase-money,  and  not  the  auction- 
ciT.  The  general  rule  may  be  dirt'erent, 
but  the  case  turns  on  this  peculiar  coa- 
struction  of  the  conditions  of  sale." 

(m)  See  Capel  i-.   Thornton,  3  Car.  & 

[441] 


420* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


the  best  price  he  fairly  *can  ;  to  comply  with  his  instructions, 
unless  they  would  operate  a  fraud ;  to  pursue  the  accustomed 
course  of  business,  and  to  possess  a  competent  degree  of  skill; 
and  if  he  fail  in  either  of  these  particulars,  and  damage  ensues 
to  the  owner,  he  is  responsible  therefor,  (n) 

In  the  preceding  remarks  we  have  given  the  rules  of  law 
applicable  to  auction  sales  of  personal  as  well  as  of  real  prop- 
erty. They  are  the  same  in  both  cases,  except  so  far  as  they 
are  necessarily  distinguished  by  the  nature  of  the  property  sold. 

Pay.  352 ;  Bunney  v.  Payntz,  4  B.  &  Ad.         (n)  See  Guerreiro  v.  Peile,  3  B.  &  Aid. 
568.     The  case  of  Sykes  r.  Giles,  above     616;Bexwell  v.  Christie,  Cowper,   395; 
cited,  does  not  impupn  this  rule,  but  turned     Russell  v.  Palmer,  2  Wilson,  325. 
upon  the  special  conditions  of  the  sale. 
[  442  ] 


CH.  in.]  HIKING   OF  REAL  PROPERTY.  421 


CHAPTER  III. 

HIRIXG    OF   REAL   PROPERTY. 

Sect.  I.  —  Of  the  Lease.       n 

The  hiring  of  real  property  is  usually  eflfected  by  means  of  a 
lease,  which  is  a  contract,  whereby  one  party  —  the  tenant  — 
has  the  possession  and  profits  of  the  land,  and  the  other  party 
—  the  landlord  —  reserves  a  rent,  which  the  tenant  pays  him 
by  way  of  compensation. 

It  is  frequently  a  question  whether  an  instrument  is  a  lease 
at  once,  or  only  an  agreement  to  make  a  lease  hereafter  ;  and  if 
a  lease,  when  by  its  terms  it  is  to  begin,  and  when  to  end;  and 
whether  the  tenancy  is  for  years,  or  from  year  to  year,  or  at 
will,  or  upon  sufferance.  But  these  questions  are  properly 
questions  of  construction,  and  so  far  as  they  come  within  the 
scope  of  this  work  will  be  considered  hereafter,  when  we  treat 
of  Construction,  and  of  the  Statute  of  Frauds,  in  our  second 
volume. 

Any  general  description  will  suffice  to  pass  the  demised 
premises,  if  it  be  cajjable  of  distinct  ascertainment  and  identifi- 
cation. And  certain  words,  usually  employed,  as  house,  farm, 
land,  and  the  like,  have,  if  necessary,  a  very  wide  meaning,  (o) 
And  where  such  general  and  comprehensive  terms  are  employed, 
all  things  usually  comprehended  within  the  meaning  thereof 
will  pass,  unless  the  circumstances  of  the  case  show  very  clearly 
that  the  intention  of  the  parties  was  otherwise.  (77)  And  inac- 
curacies as  to  qualities,  names,  amounts,  &:c.,  will  be  rejected, 
if  there  be  enough  to  make  the  purposes  and  intentions  of  the 

(0)  1  Shop.  Touch.  90-02.  v.  Lake,  iil.  1G8;  Korslakc  v.  Wliitc,  2 

(/))  Doe  r.  Burt,  1  T.  11.  701  ;  Bryan  Stark.  508  ;  Oii;,'ley  v.  Chaiuber.s,  1  Biug. 
V.  Wctherhcad,  Cro.   Car.  17  ;  Gcuuinys     483,  496. 

[443] 


422* 


THE   LAW   OF   CONTRACTS. 


[BOOK  III. 


parties  certain,  (q)  So  the  granting  for  hire,  of  a  thing  to  *be 
used,  carries  with  it  all  proper  appurtenances  and  acconapani- 
ments  which  are  needed  for  the  proper  use  and  enjoyment 
of  the  thing,  (r) 


SECTION    II. 

OP   THE   GENERAL   LIABILITIES    OF   THE   LESSOR. 

There  is  an  implied  covenant  on  the  part  of  the  lessor  to  put 
the  lessee  into  possession,  and  that  he  shall  quietly  enjoy,  (s) 
But  unless  the  demise  be  under  seal  there  is  no  implied  covenant 
for  good  title,  but  only  for  quiet  enjoyment,  (ss)  He  is  not 
bound  to  renew,  without  express  covenant,  (t)  nor  are  such 
covenants  favored,  if  they  tend  to  perpetuity,  (u)  but  where 
they  are  definite  and  reasonable  the  law  sustains  them,  (v)  A 
covenant  to  "  renew  under  the  same  covenants,"  is  satisfied  by 
a  renewal  which  omits  the  covenant  to  renew,  {w)  But  a  cove- 
nant to  renew  implies  a  renewal  for  the  same  term  and  rent, 
and,  probably,  on  the  same  conditions  as  before,  excepting  only 
the  covenant  to  renew ;  but  if  it  be  "  to  renew  on  such  terms  as 
may  be  agreed  upon,"  this  is  void  for  uncertainty,  {x) 

A  landlord  is  under  no  implied  legal  obligation  to  repair,  nor 
will  the  uninhabitableness  of  a  house  be  a  good  defence  to  an 


(q)  Miller  v.  Travers,  1  M.  &  Sc.  342, 
351  ;  Blague  v.  Gold,  Cro.  Car.  473 
Mason  v.  Chambers,  Cro.  Jac.  34 
Wrotesley  v.  Adams,  Plowd.  187,  191 
Windham  v.  Windham,  Dyer,  376,  b 
Goodtitle  v.  Southern,  1  M.  &  S.  299 
Doe  V.  Galloway,  5  B.  &  Ad.  43  ;  Pirn 
V.  CurrcU,  6  M.  &  W.  234,  269. 

(r)  Shep.  Touch.  89 ;  Morris  v.  Edg- 
ington,  3  Tannt.  24,  31  ;  Kooystra  v. 
Lucas,  .5  B.  &  Aid.  830  j  Harding  v.  Wil- 
son, 2  B.  &  C.  96. 

(s)  Line  v.  Stephenson,  4  Bing.  N.  C. 
678,  .5  id.  183  ;  Holden  v.  Taylor,  Hob. 
12;  Hacket  v.  Glover,  10  Mod.  142; 
Shep.  Touch.  16.5  ;  Nokes'  case,  4  Co.  80 
b.  —  Assumpsit  lies  against  a  landlord  on 
his  implied  promise  to  give  possession. 
Coe  V.  Clay,  3  M.  &  P.  57.  And  in  the 
absence  of  any  proof  to  the  contrary,  the 

[444] 


tenancy  under  a  written  agreement  begins 
from  the  day  on  which  the  agreement  pro- 
fesses to  have  been  executed.  Bishop  v. 
Wraith,  26  E.  L.  &  E.  568. 

(ss)  Bandy  v.  Cartwright,  20  E.  L.  & 
E.  374. 

(0  Lee  V.  Vernon,  7  Bro.  P.  C.  432  ; 
Robertson  v.  St.  John,  2  Bro.  C.  C.  140. 

(m)  Baynham  v.  Guy's  Hospital,  3  Ves. 
295;  Attorney-General  v.  Brooke,  18  id. 
319,  326. 

(i')Furnival  v.  Crew,  3  Atk.  83  ;  Cooke 
V.  Booth,  Cowp.  819  ;  Willan  v.  Willan, 
16  Ves.  72,  84;  Sadlicr  v.  Biggs,  27  E. 
L.  &  E.  74. 

(w)  Carr  v.  Ellison,  20  Wend.  178. 
See  also,  Abeel  v.  Kadcliff,  13  Johns.  297. 
But  see  contra,  Bridges  v.  Hitchcock,  1 
Bro.  P.  C.  522. 

(x)  Rutgers  V.  Hunter,  6  Johns.   Ch. 


CII,  III.]  niRING   OF   REAL   PROPERTY.  *423 

action  for  rent,  {ij)  And  if  he  expressly  covenanted  to  repair, 
the  tenant  cannot  quit  and  discharge  himself  of  the  rent  because 
the  repairs  are  not  made,  unless  there  is  a  provision  to  that 
effect,  (c)  And  if  a  landlord  is  bound  by  custom  or  by  express 
agreement  to  repair,  this  obligation,  and  the  obligation  *of  the 
tenant  to  pay  rent,  are,  it  seems,  independent  of  each  other,  so 
that  the  refusal  or  neglect  of  the  landlord  to  repair  is  no  answer 
to  a  demand  for  rent,  (a)  It  would  seem  from  the  authorities 
above  cited,  to  be  the  law  in  England,  that  a  tenant  is  justified 
in  avoiding  his  lease,  only  by  a  positive  wrong  on  the  part  of 
his  landlord  ;  as  by  erroneous  or  fraudulent  misdescription  of  the 
premises  or  their  being  made  uninhabitable  by  the  landlord,  {h) 


SECTION    III. 

OF   THE    GENERAL   LIABILITY   AND    OBLIGATION   OF   THE   TENANT. 

The  words  "  reserving,"  or  "  yielding,"  or  "paying"  a  rent, 
or  any  phraseology  distinctly  showing  the  intention  of  the  par- 
ties that  rent  should  be  paid,  imply  a  covenant  or  promise  on 
the  part  of  the  lessee  to  pay  the  same,  although  the  words  im- 
port no  promise.  And  he  is  liable  to  an  action  cither  for  non- 
payment of  rent,  or  for  refusing  to  take  possession,  {c)  He  is 
not  bonnd  to  pay  the  taxes,  unless  he  agrees  to  ;  but  the  agree- 
ment may  be  indirect  and  constructive ;  as  if  he  agrees  to  pay 
the  rent  "free  from  all  taxes,  charges,  or  impositions,"  (f/)  or 

215  ;  Wliitlork  v.  DiiflieW,  1  Iloil".  CIi.  1 10;  note  to  Surplice  c.  Farnswortli,  where  tliis 

Tracy  I'.  AlNaiiy  Exrli.  Co.  3  Sclden,  472.  case,  and  othei-s  to  this  point  from  the 

(ij)  Ardeii  r.'PulIcn,  10  M.  &  W.  321  ;  Year-BooivS,  arc  given  in  full. 

Hart  V.  Windsor,  12  id.  G8  ;  Izon  v.  Cor-  (h)  Sec  Suqilicc  v.  Farnsworth,  7   M. 

ton,  5  Bin;;.  N.  C.  501  ;  Gott  v.   Gandv,  &  Gr.  576  ;  Hart  v.  Wind.sor,  12  M.  &  W. 

22  K.  L.  &  E.   173;  Moffat  v.    Smith, '4  C8  ;  Sutton  v.  Temple,  id.  52;  Ardcn  v. 

Corns.   120;  Banks  r.    White,   1    Snccd,  I'ullcn,  10  id.  321. 

013;  Howard  c.  Doolittle,  3  Duer,  404.  (<■)  Sec  I'latt  on  Covenant.s,  50.     The 

The  cases  contra,  as  Collins  r.  Barrow,  1  learned  author  of  this  treatise  maintains, 

M.  &,Roh.  112;  Edwards  j'.  Etherington,  however,  with  great  ability  and  Icarninir, 

7  D.  &  H.  117  ;  Salisbury  v.  Mai-shall,  4  that  an  action  of  conitunt  will  lie  in  such 

C.  &  r.  05,  seem  to  be  overruled.  case  only  when  the  lease  is  made  by  inden- 

(i)  Surplice  r.  Fanisworth,  7  M.  &  Gr.  tnrc  executed  bv  the  lessee. 

•iTO.  ((/)  Bradbury  v.   Wrij,dit,    Doug.  024. 

(n)  Bro.  Abr.,  Dcttc,  pi.  18;  27  H.  6,  But    sec,    contra,    Cranston    r.    Clarke, 

10  a,  pi.  6.     Sec  also  the  reporter's  learned  Saver,  78. 

VOL.  I.                                      38  ■                          [445] 


424*  THE    LAW   OF   CONTRACTS.  [BOOK    III. 

even  to  pay  "  a  net  rent ; "  (e)  or  any  other  language  is  used, 
distinctly  showing  that  this  burden  was  to  be  cast  upon  the 
tenant. 

The  time  when  the  rent  is  due  depends  upon  the  terms  of  the 
contract;  and,  if  this  were  silent,  the  time  would-  depend  upon 
statutory  provision,  if  any  there  were,  and  in  the  absence  of  such 
provision,  upon  the  usage  of  the  country.  *Wheneverit  is  due, 
if  no  place  of  payment  is  fixed  by  the  contract,  and  there  is  a 
clause  of  reentry  and  forfeiture  in  case  of  non-payment,  a  readi- 
ness to  pay  upon  the  land  would  be  necessary  to  prevent  a  for- 
feiture, and  as  the  law  could  not  in  such  a  case  compel  a  tenant 
to  seek  the  landlord  off  the  land  to  pay  the  rent  and  at  the  same 
time  be  ready  upon  the  land  with  the  money  to  prevent  a  for- 
feiture, it  would  seem  that  a  readiness  to  pay  upon  the  land 
would  also  be  a  good  plea  of  tender  in  an  action  for  the  rent  (/) 
although  the  tenant  might,  if  he  chose,  make  a  personal  tender 
which  would  be  good.  {//)  But  we  hold,  with  the  latest 
English  authority,  that  if  there  be  no  clause  of  forfeiture  in  the 
lease,  the  tenant  must  seek  the  landlord  and  tender  the  rent  as 
in  other  cases,  in  order  to  prevent  the  landlord  from  recovering 
the  costs  of  an  action  ;  (g-)  although  the  American  cases  lead  to 
a  different  conclusion,  (g-g)  And  a  tender  of  rent  on  the  day  it 
fell  due,  although  at  a  late  hour  in  the  evening,  has  been  held 
good.  (//) 

A  tenant  is  not  bound  to  make  general  repairs  without  an 
express  agreement.  But  he  must  make  such  repairs  as  are 
made  necessary  by  his  use  of  the  house,  and  are  required  to 
keep  the  premises  in  tenantable  condition.  And  even  if  an 
accident  occur  without  his  having  any  thing  to  do  with  it,  as  if 
a  window  were  broken,  or  slates  cast  from  the  roof,  he  must 
repair,  if  serious  injury  will  obviously  result  in  case  the  accident 
be   left  without   repair,  (hh)     In    general,  an  outgoing  tenant 


(e)  Bennett  v.  Womack,  3  C.  &  P.  96,  (r/r;)  Hunter  v.  Le  Contc,  6  Cow.  728; 

7  B.  &  C.  627.  Walter  v.  Dewey,  16  Johns.  222. 

(/■)  Haldanc  v.  Johnson,  20  E.  L.  &  (h)  Thomas  r.  Hayden,  cited  in  Per- 

E.  498.  kins  v.  Dana,  19  Verm.  589. 

{jy')  Hunter  v.  Le  Conte,  6  Cow.  728.  (Iih)  Eer^uson  v. ,  2  Esp.  590  ; 

(g)  Haldane  v.  Johnson,  20  E.  L.  &  Gibson  i.-.  Wells,  4  B.  &  P.  290  ;  Porafret 

E  498.  r.  Ricroft,  1  Wnis.  Saund.  323,  b,  n.   7; 

[446] 


cir.  in.]  niRiNG  of  real  property.  *425 

must  leave  the  premises  wind  and  water  tight,  but  is  not  bound 
to  any  ornamental  repair,  as  painting,  papering,  &c.,  although 
so  broad  a  covenant  on  his  part  as  "  to  leave  the  premises  in 
good  and  sufficient  repair,  order,  and  condition,"  might  cover 
these  repairs,  (i)  But  if  he  expressly  agrees  to  keep  the  prem- 
ises in  repair,  and  deliver  them  up  in  good  repair,  he  is  not  jus- 
tified in  permitting  them  to  remain  out  of  repair  by  the  fact  that 
they  were  so  when  he  received  them,  (j)  If  the  landlord  is 
under  no  obligation  to  repair,  and  the  tenant  voluntarily  makes 
them,  the  landlord  is  not  bound  to  repay  him  the  expense;  (jj) 
but  we  should  think  there  would  be  a  sufficient  consideration 
to  sustain  a  subsequent  promise  by  the  landlord.  If  there  be 
an  express  and  unconditional  agreement  to  repair,  or  to  rede- 
liver in  good  order,  or  to  keep  in  good  repair,  the  tenant  is 
bound  to  do  this,  even  though  the  premises  are  destroyed  by 
fire,  so  that  he  is  in  fact  compelled  to  rebuild  them,  (k)  but  not 
if  destroyed  by  the  act  of  God  or  the  public  enemies,  (kk) 
Where  the  tenant  *contracts  to  repair,  there  is  no  implied 
promise  to  use  premises  in  a  tenant-like  manner,  (/)  but  such 
tenant  is  liable  to  third  parties  for  damages  resulting  from  the 
ruinous  state  of  the  premises ;  and  the  landlord  is  not,  if  the 
premises  were  in  good  order  when  leased,  (m)  But  the  tenant 
is  not  made  liable  by  this  agreement  for  acts  done  before  the 
execution  of  the  indenture,  although  its  habendum  states  that 
the  premises  are  to  be  held  from  a  day  prior  to  the  day  of  the 


Horscfiill  V.  Mather,  Ilolt,  N.  V.  7  ;  Au-  proper  extent  of  the   repairs,     id.     Sec 

worth  V.  Johnson,  5  C.  &  P.  239  ;  Torri-  also,  Mantz  r.  Goring,  4  Binj^.  N.  C.  451 ; 

ano  r.  Young,  6  id.  8.  Burdctt   v.  Withers,    7    Ad.    &   El.   3G  ; 

(/)  Wise  V.  Metcalf,  10   B.  &  C.  312.  Belcher  r.  Mcintosh,  2  M.  &  R.  186. 

But  a  dcduratioti  stating  that  in  consider-  (jj)  Miimford    v.    Bowen,   6    Cowen, 

ation  tliat  the  defendant  luul  become  ten-  475. 

ant  to  the  phiintitf  of  a  farm,  the  defend-  (^)  40   Ed.  3,   6,  ])1.    11  ;  Paradine  v. 

ant  undertook  to  make  a  certain  <iuanfity  Jane,  Aleyn,  27  ;  Bullock  v.  Dommitt,  6 

of  fallow,  and  to  spend  iCO  wortli  of  ma-  T.    B.    650;   Brecknock    Canal    Co.    v. 

nure  every  year  thereon,  and  to  keep  the  rritchard,  6  T.  W.  750  ;  lu  re  Skingley,  3 

hnildings  in  repair,  was  held  had  on  gen-  10.  L.  &  E.  01  ;  Allen  v.  Culver,  3  Denio, 

cral  demurrer;  those  oliligations  not  aris-  284;  Spence  v.  Chodwick,  10  Q.  B.  517, 

ing  out  of  the   hai-c  relation  of  landlord  .530;  Phillips  r.  Stevens,  16  Miiss.  2:J8  ; 

and  tenant.     Brown  v.  Crump,  1  Marsh.  Fowler  v.  Bott,  6  Mass.  63. 

567.     See  also,  Granger  »-.  Collins,  6  M.  (/./.)  Bavlv  v.   Lawrence,  1   Bav,  499  ; 

6c  W.  458;  Jacksoi\  r.  Cobi>in,  8  id.  790.  Pollard    r."  ShalVer,  1   Dallas,    210.     Sec 

(./)  Payne  r.  Ilaiiie,  16  M.  &  W.  541.  Proctor  c.  Keith,  12  B.  Mon.  252. 

But  the  age  and  character  of  the  premises  (/)  Standen  v.  C'hrinnas,  10  Q.  B.  35. 

must   he  considered   in   determining  the  (m)  Bears  r.  Amhler,  9  Barr,  193. 

[447] 


426* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


execution,  (w)  And  an  under-lessee,  with  covenants  to  repair, 
is  liable  to  his  immediate  landlord  only  for  such  damages  as 
result  directly  from  the  breach  of  his  own  contract ;  and  not  for 
such  as  the  owner  may  recover  from  the  mesne  landlord,  (o) 

The  tenant  of  a  farm  is  bound,  without  express  covenants,  to 
manage  and  cultivate  the  same  in  such  manner  as  may  be  re- 
quired by  good  husbandry  and  the  usual  course  of  management 
of  such  farms  in  that  vicinity.  And  if  he  fails  to  do  so,  as- 
sumpsit may  be  maintained  on  the  breach  of  the  implied 
promise,  (p) 

It  is  no  answer  to  a  demand  for  rent  that  the  premises  are 
not  in  a  fit  and  proper  state  and  condition  for  the  purposes  for 
which  they  are  hired,  (q)  If,  therefore,  the  premises  are  burned 
down,  and  the  tenant  is  under  no  obligation  to  rebuild,  (not 
having  agreed  to  keep  in  repair,)  or  are  destroyed  by  the  act 
of  God  or  the  public  enemies,  yet  he  is  bound  to  pay  rent 
thereafter,  (qq)  unless,  as  is  now  frequently  done  in  this  coun- 
try, the  lease  contains  a  provision,  that  the  rent  shall  cease  or 
proportionally  abate  while  the  premises  remain  wholly  or  in 
part  unfit  for  use. 

In  the  absence  of  express  agreement  to  repair,  the  lessee  *i5 
not  bound  to  rebuild  a  house,  which  has  been  burned  through 
the  negligence  and  folly  of  his  own  servants,  (r) 

A  lessee  may  assign  over  the  whole  or  a  part  of  his  term  in 
the  premises.  If  he  parts  with  the  whole  of  his  interest  it  is  an 
assignment;  if  with  less  than  the  whole  it  is  an  underleasing, 
leaving  a  reversion  in  the  original  lessee.  An  underlease  is  not 
a  breach  of  a  covenant   "  not  to  assign,  transfer,  or  set  over" 


(n)  Shaw  v.  Kav,  1  Exch.  412. 

(o)  Logan  r.  Hall,  4  C.  B.  598  ;  AYalker 
V.  Hatton,  10  M.  &  W.  249  ;  Pcnicy  v. 
Watts,  7  id.  GOl.  But  see  contra,  Keale 
V.  Wvllie,  3  B.  &  C.  5.33. 

(pj  Powlej  V.  Walker,  5  T.  E.  373 ; 
Beale  v.  Sanders,  3  Bing.  N.  C.  850 ; 
Brown  v.  Cramp,  1  Marsh.  567.  See  also, 
Wigglesworth  v.  Dallison,  Doug.  201  ; 
Legh  V.  Hewitt,  4  Er.st,  154;  Senior  r. 
Armytagc,  Holt,  N.  P.  197;  Gough  r. 
Howard,  Peake's  Add.  Cas.  197;  Dalby 
V.  Hirst,  1  Br.  &  Bing.  224,  3  Moore, 
536 ;  Augcrstein  i-.  Ilandson,  1    C.  M.  & 

[448] 


E.  789;  Hutton  ?•.  Warren,  1  M.  &  W. 
466  ;  Hallifax  r.  Chambers,  4  id.  662 ; 
Lewis  r.  Jones,  17  Penn.  262. 

(7)  Hart  r.  Windsor,  12  M.  &  W.  68; 
Surplice  ?•.  Farnsworth,  7  M.  &  Gr.  576  ; 
Harrison  v.  Lord  North,  1  Ch.  Cas.  S3. 

(77)  Pollard  V.  Shaaffer,  1  Dallas, 
210  ;  Niedelet  v.  Wales,  16  Missouri,  214 ; 
Powlcr  V.  Bott,  6  Mass.  62  ;  Lcmott  v. 
Skcrrett,  1  Har.  &  J.  42;  Wagner  r. 
White,  4  H.  &  J.  546  ;  Redding  v.  Hall, 
1  Bibb,  536. 

(r)  McKcnzic  r.  McLeod,  10  Bing. 
385. 


Cir.   III.]  HIRING    OF   REAL   PROPERTY.  *427 

the  premises,  or  the  lease,  or  the  interest  or  estate  of  the  les- 
see ;  (s)  but  if  there  be  added  to  the  covenant  the  words  "  or 
any  part  thereof,"  it  is  equally  a  breach,  to  underlet  or  to 
assign.  By  such  breach  the  original  lessee  becomes  liable  for 
damages  ;  but  the  lease  is  not  terminated,  or  the  interest  of  the 
sub-lessee  destroyed,  unless  the  original  lease  is  made  on  con- 
dition that  there  shall  be  no  assignment,  nor  underleasing,  or 
provides  that  the  original  lessor  may,  upon  any  assignment  or 
underleasing,  enter  and  expel  the  lessee  or  his  assigns,  and  ter- 
minate the  lease. 

A  distinction  formerly  prevailed  between  a  proviso  declaring 
that  the  lease  should  be  void  on  a  specified  event,  and  a  proviso 
enabling  the  lessor  to  determine  it  by  reentry  ;  and  it  was  held 
that  in  the  former  case  the  lease  became  absolutely  void  on  the 
event  named,  and  was  incapable  of  being  restored  by  acceptance 
of  rent,  or  other  act  of  intended  confirmation  ;  while  in  the 
latter,  some  act,  such  as  entry  or  claim,  must  have  been  per- 
formed by  the  lessor  to  manifest  his  intention  to  end  the  de- 
mise, which  was  voidable  in  the.  interval,  and  consequently 
confirmable.  This  distinction,  however,  is  now  exploded  ;  and 
it  is  held  that  the  lease  is  *voidable  only  at  the  election  of  the 
lessor,  but  not  of  the  lessee,  though  the  proviso  expressly  de- 
clare that  it  shall  be  void,  (t)  And  any  act  will  be  a  waiver  of 
the  forfeiture,  which  is  a  distinct  and  voluntary  recognition  of 
the  lease  by  the  lessor,  with  a  full  knowledge  of  the  forfeiture ; 
as  by  taking  rent,  »k:c.  (ii)      Whether  a  mere  demand  of  subse- 

(.«)  Crusoe  »•.  Biiphy,  2  W.  BI.  706,  3  sin  insolvent  law  would  l)c  a  breach  of  the 
Wiis.  2.'14  ;  Kinncrslcy  r.  Orpe,  Donir.  covenant.  Sec  Shee  r.  Ilale,  1-3  Vcs. 
56  :  Ciiureh  v.  Brown,  I.t  Vcs.  2.58,  205.  404.  And  if  the  lease  he  made  siihjeet  to 
—  But  a  covenant  a;rainst  undrrUttivij  will  a  condition  that  the  premises  shall  he  act- 
restrain  the  alienation  by  assi<iiimpiit.  ually  occupied  by  tlie  lessee,  the  lease 
Greenaway  v.  Adams,  12  Vcs.  39,5. —  will  of  course  determine  whenever  the  cou- 
Lettinfj;  lod;:;in<rs  is  not  a  breach  of  cove-  dition  is  broken,  wliether  it  be  by  the 
nant  not  to  underlet.  Doe  d.  I'itt  v.  voluntary  act  of  the  party  or  l)yoi)eration 
Laminp,  4  Camp.  73. — And  an  assign-  of  hiw.  Doe  c.  Clarke,  8  Kast,  185. 
meiit  by  operation  of  law  is  no  breach  of  (/)  See  Piatt  on  Lea.scs,  vol.  2,  p.  327  ; 
a  covenant  not  to  assijrn  ;  as  in  case  of  1  Smith's  Lead.  Citses,  19;  and  Taylor 
banknifitey,  or  where  the  term  is  taken  on  on  Landlord  and  Tenant,  2d  ed.  p.  322, 
execution  by  a  creditor.  Doc  r.  Carter,  where  this  point  is  fully  considered,  and 
8  T.   \i.   57.     But   it  is  otherwise  if  the  ca.«es  cited. 

assignment   is   the    voluntary   act   of   the  (u)  Koc  d.  Gi-epson  v.   Harrison,  2  T. 

tenant.     Doe  v.  Carter,  8  t.  U.  57,  300  ;  K.  425  ;  Doc  d.  Kash  v.  Birch,  1  M.  &  W. 

Doe  r.   Ilawke,  2    East,  4S1.     It  would  402;  Doc  d.  Gatehouse  v.  Hees,  4  Bing. 

©em,  therefore,  that  takiuir  the  benefit  of  N.  C.  384  ;  Arnsbv  v.  Woodward,  6  B. 

38*  ■    [449] 


428* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


quent  rent  is  a  waiver  is  not  so  certain.  (?;)  A  waiver  of  the 
forfeiture  for  one  breach  does  not  prevent  the  lessor  from  insist- 
ing on  the  forfeiture  for  another,  (iv)  The  sub-lessee  is  not 
liable  to  the  original  lessor,  there  being  no  privity  between 
them.  But  if  the  whole  term  and  interest  be  assigned  by  the 
termor,  the  assignee  —  who  is  not  a  sub-lessee,  as  there  is  no 
reversion  in  the  termor  —  is  now  liable  to  the  original  lessor 
for  rent,  by  reason  of  his  privity  of  estate,  (x) 

Where  the  letting  is  in  the  alternative,  as  for  two,  four,  or 
eight  years,  the  tenant  may  determine  the  tenancy  at  either  of 
these  periods  by  a  proper  notice,  unless  it  be  otherwise  ex- 
pressly agreed,  (y) 

A  tenant  may  not  dispute  his  landlord's  title ;  for  he  is 
estopped  from  changing,  by  his  own  act,  the  character  and 
effect  of  his  tenure,  (z)  And  wherever  a  tenant  disclaims  his 
tenure,  or  denies  his  landlord's  title,  or  claims  adversely  to  him, 
or  attorns  to  another  as  having  title  against  him,  he  forfeits  his 
estate.  The  landlord  may  enter  at  once,  and  bring  ejectment 
for  the  forfeiture.  But  this  is  a  disclaimer  *of  the  lease  by  the 
landlord,  who  cannot  thereafter  take  any  advantage  from  the 
tenancy,  (a)     But  a   disclaimer  by  a  tenant  will  work  a  for- 


&  C.  519;  Ilarvic  v.  Oswel,  Cro.  Eliz. 
572 ;  Goodright  d.  Walter  i'.  Davids, 
Cowp.  8(»3. 

(v)  Doe  d.  Nash  v.  Birch,  1  M.  &  W. 
406. 

(w)  Doe  d.  Boscawen  v.  Bliss,  4  Taunt. 
735 ;  Doe  (/.  Ambler  v.  Woodbridge,  9 
B.  &  C.  376. 

{x)  Stevenson  v.  Lamhard,2  East,  575. 
See  also,  ante,  p.  199,  and  note  {q). 

(y)  Dann  r.  Spurrier,  3  B.  &  P.  399  ; 
Goodrifiht  d.  Hall  t\  Eichardson,  3  T.  Iv. 
462.  Where  a  house  was  leased  at  a 
certain  rent  "  to  be  paid  quarterly,  or  half 
quarterly  if  required,"  and  the  ten.int 
entered  and  paid  his  rent  quarterly  for 
one  year,  after  which  tlic  landlord,  without 
previous  demand  or  notice,  distrained  for 
half  a  quarter's  rent,  alleged  to  be  tlicn 
due,  it  was  held  that  he  had  no  riglit  so  to 
do,  but  must  give  previous  notice  of  his 
election.  Mallam  v.  Ardcn,  10  Bing. 
299. 

(z)  Doed.  Higginbotham  v.  Barton,  11 
Ad.  &E1.  307  ;  Fleming  i-.  Gooding,  lo 

[450] 


Bing.  549 ;  Doe  d.  Knight  r.  Smythe,  4 
M.  «fc  S.  347 ;  Alcliorne  v.  Gomme,  2 
Bing.  54 ;  Gravenor  i\  Woodliouse,  7 
Moore,  289  ;  Parry  ?■.  House,  Holt,  N.  P. 
489,  and  the  learned  note  by  the  reporter; 
Willison  r.  Watlcins,  3  Peters,  43;  Den 
d.  Freeman  r.  Heath,  13  Ire.  L.  498; 
Fusselman  v.  Worthington,  14  111.  135  ; 
Pierce  v.  Minturn,  1  Cala.  470.  But  see 
Mountney  r.  Collier,  16  E.  L.  '&  E.  232; 
Den  d.  Howell  r.  Ashmorc,  2  New  Jer. 
265;  Shultz  r.  Elliott,  U  Humph.  183; 
Funk's  Lessee  v.  Kincaid,  5  Maryl.  404. 

(a)  Greeno  v.  Munson,  9  Verm.  37  ; 
Hall  V.  Dewey,  10  id.  593;  Carpenter  i-. 
Thompson,  3  New  Hamp.  204  ;  Blake  v. 
Howe,  1  Aikens,  306  ;  Lord  v.  Bigelow, 
8  Verm.  445  ;  Doe  (/.  Jefteries  v.  Wliittick, 
Gow,  195;  Doe  d.  Calvert  r.  Frowd,  4 
Bing.  557  ;  Doe  d.  Grubb  v.  Grubb,  10 
B.  &  C.  816  ;  Doe  d.  Whitehead  v.  Pitt- 
mann,  2  N.  &  M.  673  ;  Doe  d.  Bennett  v. 
Long,  9  C.  &  P.  773 ;  Doe  d.  Davies  r. 
Evans,  9  M.  &  W.  48. 


i 


CH.  III.]  HIRING   OF  REAL  PROPERTY.  -428 

feiture  only  when  it  amounts  to  a  renunciation  of  his  character 
as  a  tenant,  which  may  be  either  by  setting  up  a  title  in  ano- 
ther or  claiming  title  in  himself,  (aa)  A  refusal  to  pay  rent, 
together  with  a  request  for  further  information  as  to  the  land- 
lord's title,  or  a  delay  until  conflicting  claims  are  settled,  seems 
not  to  be  sufficient  to  work  a  forfeiture,  (bb) 

The  payment  of  rent  admits  primd  facie,  a  tenancy  by  implica- 
tion ;  (cc)  but  this  inference  may  be  prevented  and  the  evidence 
rebutted  by  showing  that  the  payment  was  made  under  a  mis- 
take, (eld) 


SECTION    IV. 

OF  SURRENDER  OF  LEASES,  BY  OPERATION  OF  LAW. 

Such  surrender  takes  place  when  the  lessee  does  something 
incompatible  with  the  lease;  and  the  lessor  assents  or  cooper- 
ates. As  if  the  lessor  gives  and  the  lessee  accepts  a  valid  new 
lease.  (/;)  There  is,  perhaps,  no  better  definition  of  the  acts 
which  make  a  surrender  in  law,  than  to  say  that  they  are  such 
acts  as  in  contemplation  of  law  are  acts  of  notoriety ;  as  formal 
and  solemn  as  the  execution  of  a  deed,  or  livery,  entry,  and  ac- 
ceptance of  an  estate,  (t)  The  surrender  may  be  by  substitut- 
ing a  new  lease  between  the  same  parties,  as  we  have  seen,  or 
a  new  lessee  instead  of  the  old  one.  (d)  But  the  mere  agree- 
ment for  substitution  is  not  enough;  there  must  be  an  actual 
change  of  possession,  and  an  actual  reception  by  the  lessor  of 
the   new  tenant  in  the  stead  of  the  old  one ;  [e)  oriierwise  the 


(a«)  Doc  (/.  Williams  i:  Cooper,  1  'M.  (I>)  Lyon  v.   Kecd,   13   'SI.  &  W.  285; 

&  G.  135.     And  sec  Elliott  v.  Smith,  23  Doe  d.  Biddulpli  r.  I'ok',  11  Q.  15.  713. 

rcnn.  St.  Kep.  131.  (r)  I'arLo.   IJ.,  Lyou  r.  Kecd,  13  M.  & 

(W))  Doc  J.  Lewis  r.  Cawdor,  1  C.  M.  W.    30'J,    (^o.   Litt'.   352,  a.      Sec   also, 

&  R.  398  ;  Doe  </.  Gray  r.  Staiiion,  1  M.  Crowlev  v.  Vittv,  9  E.  L.  &  E.  501. 

6  W.  695  ;  Doe  (/.  Williams  c.  riisiiuali,  (fl)   Stone  r.' Wliitinjr,  2  Stark.   235; 
Pcakc,  19G.  Thomas  c.    Cook,   2    Stark.  40S,  2  B.  & 

(rr)  Gouldsworth  r.  Kni^dits,  11   M.  &  Aid.    119;  Lvon   v.   Keed,    13  M.  &  W. 

W.  337  ;  Fenner  r.  Dujilock,  2  Binjr.  10.  2S5 ;  Doe  (/."Hull  v.  Wood,  14  M.  &  W. 

((W)  Claridfrc  !-.  JNIaekenzie,  4  M.  &  G.  C82  ;  Niekells   i-.   Atherstone,    10    Q.    B. 

143;  Doe  d.  lli-^Lrinhotham  v.  Barton,  11  944  ;  Wliitnev  v.  Mevers,  1  Diier,  266. 

Ad.  &  El.  307  ;  i)oe  d.  Plevin  v.  Brown,  (< )   Graham  i-.   Wiiichelo,   1    C.  &  M. 

7  Ad.  &  El.  447.  188;  Tavlor  v.  Chapman,  IVake's  Add. 

[451] 


*429-*430 


THE   LAW    OP   CONTRACTS. 


[book  III. 


new  tenant  is  but  the  *assignee  or  sub-lessee  of  the  old  one. 
Or  it  may  be  a  surrender  and  abandonment  of  the  premises  to 
the  landlord,  he  accepting  the  same,  and  no  new  contract  sub- 
stituted. (/)  An  acceptance  of  rent,  by  the  lessor,  from  a  third 
party,  is  pi'imd  facie  only  an  acceptance  of  rent  paid  by  the 
lessee  through  an  agent;  («■)  but  if  this  presumption  be  rebutted 
by  facts  going  to  show  that  the  landlord  had  given  up  the 
lessee,  and  had  nothing  more  to  do  with  him,  and  treated  the 
new  occupant  as  his  lessee,  this  will  amount  to  a  surrender. 
For  the  landlord  cannot  hold  both  as  his  lessees,  [h) 


SECTION    V. 

of  away-going  crops. 

A  tenant  whose  estate  is  terminated  by  an  uncertain  event 
which  he  could  neither  foresee  nor  control,  is  entitled  to  the 
annual  crop  which  he  sowed  while  his  estate  continued,  by  the 
law  of  Emblements.  But  a  tenant  for  years  knows  when  his 
lease  will  expire.  Nevertheless,  he  has  usually  some  right  to 
the  crop  he  sowed,  and  to  so  much  possession  of  the  land  as 
may  be  necessary  to  getting  in  the  crop;  but  this  right  must 
depend  either  on  agreement  or  on  usage.  At  common  law  he 
has  no  such  right,  {i)     The  local  usages  of  this  *country,  in  this 


Cas.  19.  See  also,  M'Dounell  v.  Pope, 
13  E.  L.  &  E.  11 ;  Barlow  v.  Wainwright, 
22  Verm.  88. 

(/)  Keeve  v.  Bird,  1  C.  M.  &  R.  31. 
In  Grimman  v.  Legge,  8  B.  &  C.  324,  A 
demised  to  B  the  first  and  second  floor  of 
a  house  for  a  year,  at  a  rent  payable 
quarterly.  During  a  eurrent  quarter, 
some  dispute  arising  between  the  ])arties, 
B  told  A  thatslie  would  quit  immediately. 
The  latter  answered,  she  might  go  when 
she  pleased.  B  quitted  and  A  .accepted 
possession  of  the  apartments  :  Held,  that 
A  could  neither  recover  the  rent,  which, 
by  virtue  of  the  original  contract,  would 
have  become  due  at  the  expiration  of  the 
current  quarter  ;  nor  rent  pro  rata  for  the 
actual  occupation  of  the  premises  for  any 

[452] 


period  short  of  the  quarter.  See  also,  Dodd 
V.  Acklom,  C  M.  &  G.  672. 

((])  Copeland  v.  Watts,  1  Stark.  95. 

('//)  Keeve  v.  Bird,  1  C.  M.  &  R.  31  ; 
Walls  V.  Atcheson,  11  ]\roore,379  ;  Wood- 
cock V.  Nuth,  8  Bing.  170;  Thomas  v. 
Cooke,  2  B.  &  Aid.  119;  Johnstone  r. 
Huddlestone,  4  B.  &  C.  922. 

((■)  Caldecott  v.  Smythies,  7  C.  &  P. 
808;  Wigglesworth  v.  Dallison,  Doug. 
201 .  See  also,  Griffiths  v.  Puleston,  13  M. 
&  W.  358  ;  Strickland  v.  Maxwell,  2  C. 
&  M.  539;  Boraston  i'.  Green,  16  East, 
71  ;  Davis  v.  Connop,  1  Price,  53  ;  Beavan 
V.  Delahav,  1  H.  Bl.  5 ;  Knight  v.  Ben- 
ett,  3  Bing.  364  ;  Hutton  v.  Warren,  1  M. 
&  W.  466^^;  Senior  v.  Armytage,  Holt,  N. 
P.  197  ;  AVebb  v.  Plummer,  2  B.  &  Aid. 


CH.  III.] 


HIRING   OF  REAL   PROPERTY. 


-430 


respect,  vary  very  much,  and  are  not  often  distinctly  defined  or 
well  established.  Thus,  there  is  some  uncertainty  as  to  the 
property  in  the  manure  of  a  farm.  Generally,  in  this  country, 
the  outgoing  tenant  cannot  sell  or  take  away  the  manure,  (j) 
although  it  would  seem  that  in  England  he  can.  (k) 


SECTION     VI. 

OF   FIXTURES. 

The  tenant  may  annex  some  things  to  the  freehold,  and  yet 
retain  the  right  to  remove  them.  These  things  are  called  Fix- 
tures. (/)  There  are  no  precise  and  certain  rules,  by  which  we 
can  always  determine  what  are  and  what  are  not  removable. 
The  method  of  affixing  is  a  useful  criterion  ;  but  not  a  certain 
one.  For  doors,  windows,  blinds,  and  shutters,  although  ca- 
pable of  removal  without  injury  to  the  house,  and  in  fact  de- 
tached at  tlie  time  of  transfer,  nevertheless  pass  with  the  house  ; 
while  mirrors,  wardrobes,  6cc.,  although  far  more  strongly  fast- 
ened, would  still  be  chattels,  (m)  In  modern  times  this  rule  is 
construed  much  more  strongly  in  favor  of  the  tenant,  and 
against  the  landlord,  than  formerly ;  {mm)  and  more  so  in 
respect  of  things  put  up  for  purposes  of  trade  or  manufacture 


740  ;  Holding-  r.  ripott,  7  Binir.  4G5.  By 
the  I'ustoni  of  IViinsylvaiiin,  tlie  rifjjlit  of 
the  tenant  for  a.  ilcfinito  term  to  liis  away- 
poinj:  erops  seems  to  l)e  well  established. 
Dift'edortl'er  r.  Jones,  cited  in  Carson  v. 
Blazer,  2  Binn.  487,  ami  in  Stultz  v. 
Diekev,  5  Binn.  289  ;  Comfort  v.  Dunean, 
1  Miles,  229  ;  Demi  v.  Bossier,  1  Penn. 
224.  Such  is  the  ease  also  in  New  Jersey. 
Van  ])oren  v.  Everitt,  2  South.  4C6 ; 
Temi)lem.1n  r.  Biddle,  1  Ilarrinjr.  522. 

(./)  Lassell  v.  Kced,  G  Greenl.  222; 
Stni>l(s  r.  Enierv,  7  Greenl.  201  ;  Daniels 
V.  I'on.l,  21  Piek.  367,  ."571  ;  I>ewis  r.  Lv- 
man,  22  Piek.  4.'37,  442;  Middlehrook  V. 
Corwin,  l.'i  Wend.  109;  Lewis  r.  Jones, 
17  JVnn.  262.  Sec  also,  Kittredgc  i-. 
Woods,  3  New  Ilamp.  .503. 

(/.•)  Sec  Bohei-ts  v.  Barker,  1  C.  &  M. 
808.      In   New   Hampshire    it   has    been 


held  tliat  where  land  is  sold  and  con- 
veyed, m;iimrc  lyinjj;  ahout  a  liaru  upon 
the  lan<l  will  pass  to  the  fjrantee,  as  an 
inci<lcnt  to  the  land,  unless  there  be  a 
reservation  of  it  in  the  deed.  Kittredge 
V.  Woods,  3  New  Hamp.  503  ;  Conner  v. 
Coffin,  2  Foster,  539.  Sec  also.  Parsons 
I'.  Camp,  1 1  Conn.  525 ;  Goodrich  c. 
Jones,  2  Hill,  142. 

(/)  Sec  Hallen  c  Knndcr,  1  C.  M.  &.  R. 
266,  276 ;  Elliott  v.  Bishop,  28  E.  L.  &  E. 
484 ;  and  Amos  and  Ferard  on  Fixtures, 
p.  2,  for  tliis  definition.  But  the  word  is, 
jierliaps,  quite  as  often  used  to  denote 
those  tliiujrs  which,  being  added,  cannot 
be  removed. 

(w)  Winslow  i".  Mcrchant-s'  Ins.  Co.  4 
Met.  306,  314. 

{mm)  Dubois  v.  Kelly,  10  Barb.  496. 

[  -li.^  ] 


431* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


than  for  other  things.  As  between  the  seller  and  purchaser  it  is 
construed  strongly  against  the  seller.  Many  things  pass  by  a 
deed  of  a  house,  *being  put  there  by  the  owner  and  seller, 
which  a  tenant  who  had  put  them  there  might  have  removed. 
In  general,  it  may  be  said,  that  what  a  tenant  has  added 
he  may  remove,  if  he  can  do  so  without  any  injury  to  the 
premises,  unless  he  has  actually  built  it  in,  so  as  to  make  it  an 
integral  part  of  what  was  there  originally,  (n) 


(n)  We  give  below  a  statement  of  all 
the  things  wliich  have  been  held  remov- 
able, and  of  those  which  have  been  held 
not  removable.  But  it  must  be  remem- 
bered that  each  decision  rested  more  or 
less,  upon  the  peculiar  circumstances  of 
the  case,  and  may  fail  as  authority  when 
applied  to  another  case  whicli  apparently 
resembles  it.  —  1 .  List  of  tilings  held  not 
to  be  removable :  Agricultural  erections, 
Elwes  V.  Maw,  3  East,  38  ;  Contra,  Du- 
bois V.  Kelly,  10  Barb.  496  ;  Ale-house 
bar,  Kinlyside  v.  Thornton,  2  Wm.  Bl. 
1111  ;  Barns  fixed  in  the  ground,  Elwes  v. 
Maw,  supra ;  Beast-house,  id. ;  Benches 
affixed  to  the  house,  Co.  Litt.  53,  a ;  Box- 
borders,  not  belonging  to  a  gardener  by 
trade,  Empson  v.  Sodden,  4  B.  &  Ad. 
655 ;  a  statue  erected  as  ornament  to 
grounds,  and  a  sun-dial,  Snedeker  v.  War- 
ring, 2  Kernau,  1 70 ;  Carpenter's  shop, 
Elwes  V.  Maw,  supra;  Cart-liouse,  id.; 
Cliimney-piece,  not  oi'namental.  Leach  v. 
Thomas,  7  C.  &  P.  327  ;  Closets  affixed  to 
the  house,  Kimpton  v.  Eve,  2  Ves.  &  Bea. 
349  ;  Conduits,  Nicholas  v.  Chamberlain 
Cro.  Jac.  121  ;  Conservatory,  substantially 
affixed,  Buckland  v.  Butterfield,  2  B.  &B. 
54;  Doors,  Cooke's  case,  Moore,  177; 
Dressers,  Kinlyside  t\  Thornton,  supra  ; 
Flowers,  Littledale,  J.,  in  Empson  v. 
Soden,  supra;  Fold-yard  walls,  Elwes  v. 
Maw,  supra;  Fruit-trees,  if  tenant  be  not 
a  nursery-man  by  tracle,  Wvndham  v. 
AVay,  4  Taunt.  316;  Fucl-housV,  Elwes  v. 
Maw,  supra ;  Glass  windows,  Co.  Litt.  53, 
a.  Herlakenden's  case,  4  Co.  63  ;  Hearths, 
Poole's  case,  1  Salk.  368  ;  Hedges,  Parke, 
J.,  in  Empson  v.  Soden,  supra ;  Locks 
and  keys,  Liford's  case,  11  Co.  50,  Cowcn, 
J.,  in  Walker  v.  Sherman,  20  Wend.  636, 
639;  Millstones,  14  H.  viii.  25,  b,  pi. 
6,  Liford's  case,  supra ;  The  Queen  v. 
Wheeler,  6  Mod.  187,  Shep.  Touch.  90; 
Looms  substantially  affixed  to  the  floor  of 
a  factory,  Murdock  v.  Han-is,  20  Barb.  407  ; 
Manure,  Daniels  v.  Pond,  21   Pick.  367; 

[454] 


Middlebrook  v.  Corwin,  15  Wend.  169, 
Lassell  v.  Reed,  6  Greenl.,  222,  Sawyer 
I'.  Twiss,  6  Fost.  345.  But  see  Staples  v. 
Emery,  7  Greenl.  201  ;  Parthions,  Kinly- 
side V.  Thorton,  supra ;  Pigeon-house, 
Elwes  V.  Maw,  supra ;  Pineries,  substan- 
tially affixed,  Buckland  v.  Butterfield, 
supra ;  Pump-house,  Elwes  v.  Maw,  supra ; 
Trees,  Empson  v.  Soden,  supra;  Wagon- 
house,  Elwes  V.  Maw,  supra ;  Poles  used 
necessarily  in  cultivating  hops,  which  were 
taken  down  for  the  purpose  of  gathering 
the  crop,  and  piled  in  the  j'ard,  with  the 
intention  of  being  replaced  in  the  season 
of  hop  raising,  Bishop  i'.  Bishop,  1  Ker- 
nan,  123 ;  Threshing-machines,  fixed  by 
bolts  and  screws  to  posts  let  into  the 
ground,  Wiltshear  v.  Cottrell,  18  E.  L.  & 
E.  149. — 2.  Things  held  to  be  removable, 
though  not  coming  within  the  class  of 
trade  fixtures  :  —  Arras-hanging,  Bridge- 
man's  case,  1  Eol.  Rep.  216  ;  Barns,  rest- 
ing by  weight  alone  upon  foundations  let 
into  the  ground,  or  upon  blocks,  Wans- 
borough  V.  Maton,  4  Ad.  &  El.  884,  Bui. 
N.  P.  34  ;  Granaries,  resting  by  weight 
alone,  Wiltshear  t'.  Cottrell,  18  E.  L.  & 
E.  149  ;  Stables  and  out-houses,  Dubois 
V.  Kelly,  10  Barb.  496 ;  Gas-fixtures, 
Lawrence  v.  Kemp,  1  Duer,  363  ;  Beds 
fastened  to  the  ceiling.  Ex  parte  Quincy, 
1  Atk.  477  ;  Carding  machines.  Walker  a;. 
Sherman,  20  Wend.  636 ;  Taffe  v.  War- 
nick,  3  Blackf.  Ill  ;  Cresson  v.  Stout,  17 
Johns.  116  ;  Gale  v.  Ward,  14  Mass.  352; 
Tobias  V.  Francis,  3  Verm.  425  ;  other 
machinery,  Vanderpoel  v.  Van  Allen,  10 
Barb.  157  ;  TeatFu.  Ilewett,  1  Ohio  State 
Reps.  511,  541  ;  Cotton-spinning  ma- 
chines, screwed  to  the  floor,  Hellawell  v. 
Eastwood,  3  E.  L.  &  E.  562;  Chimney- 
pieces,  (ornamentiil,)  Tindal,  C.  J.,  in 
Grvmes  v.  Boweren,  6  Bing.  437  ;  and 
Bishop  V.  Elliott,  30  E.  L.  &  E.  593 ; 
Coftee-mills,  Rex  v.  Londonthorpc,  6  T. 
R.  379  ;  Cornices,  (ornamental,)  Avery  v. 
Cheslvn,  3  Ad.  &   El.    75;    Firc-framc, 


CH.   III.] 


HIRING   OF   REAL   PROPERTY. 


432 


SECTION    VII 


OF   NOTICE   TO   QUIT. 


A  tenant  whose  tenancy  may  be  determined  by  the  will  of 
the  landlord  is  entitled  to  notice  of  that  determination,  nor  can 
he  be  dispossessed  by  process  of  law,  without  that  previous 
notice.  In  England,  this  notice,  in  the  case  of  a  tenant  from 
year  to  year,  is  one  half  of  a  year,  which  is  distinguished  from 
six  months'  notice,  (o)  In  this  country  there  is  no  uniform 
rule.  In  some  of  the  States  the  English  rule  seems  to  have 
been  adopted.  (/>)     In  others  it  is  regulated  by  statute,  (q) 


Gaffickl  V.  Hapjrood,  17  Pick.  l'J2;  Fur- 
naces, Squier  ;;.  Mayer,  Freem.  Cli.  249  ; 
Gates,  (if  removable  witiiout  injury  to  the 

tircmises,)  Tindal,  C.  J.,  in  Grvmcs  v. 
Jowercn,  supra,  Amos  and  Ferarfl  on 
Fixtures,  p.  278 ;  Iron  backs  to  chimneys, 
Haney  v.  Harvey,  Str.  1141  ;  Looking- 
plasses,  Beck  r.  Rebow,  1  1'.  Wnis.  94 ; 
Malt-mills,  Lord  Kenjpn,  in  Rex  r.  Lon- 
dontliorpc,  supra :  Movable  boards  fitted 
and  used  for  putting  up  corn  in  bins, 
Whiting  ?'.  Bnistow,  4  Pick.  310;  Mills 
on  posts,  AVard'scase,  4  Leon,  241  ;  Orna- 
mental (ixtiires,  Amos  and  Ferard  on  Fix- 
tures, p.  07  ;  Beck  i\  Rei)ow,  supra  ;  I'ad- 
lock  for  a  corn-house.  Whiting  r.  Brastow, 
supra ;  Pumps  slightly  attached,  Grymes 
V.  Boweren,  siipi-a  ;  Rails  and  posts,  Fitz- 
herbert  v.  Shaw,  1  H.  Bl.  258  ;  A  ladder 
fixed  to  the  ground,  and  to  a  beam  above, 
and  which  was  the  only  means  of  access  to 
a  room  above  ;  a  crane  nailed  at  top  and 
bottom  to  keep  it  in  its  place,  and  a  bench 
nailed  to  the  wall,  Wilde  r.  Watei-s,  32 
K.  L.  &  E.  422  ;  Stables  on  rollers,  id. ; 
Stoves,  Smith,  J.,  in  Grav  v.  Holdsliip,  17 
S.  &  R.  413,  Timhil,  C.'.J.,  in  Grymes  r. 
Boweren,  supra,  Greene  r.  First  Parish  in 
Mttldcn,  10  Pick.  .500,  504,  suhjhio  :  Tap- 
estry, Harvey  v.  Harvey,  supra ;  Windmill 
on  posts,  Itex  v.  Londonthorpe,  supra; 
Window-blinds,  Green  v.  First  Parish  in 
Maiden,  supra.  —  3.  Trade  fixtures  held  to 
be  removalde  :  Brewing  vessels,  Lawton  v. 
Lnwton,  3  Atk.  13  ;  Buildings  accessorj* 
to  removable  trade  fixtures,  Dudlev  i-. 
Ward.?,  Am  bl.   113  ;  Cider-mills,  Lawton 


V.  Lawton,  supra;  Holmes  v.  Tremper, 
20  Johns.  29  ;  Collieiy  machines,  Lawton 
V.  Lawton,  supra ;  Coppers,  Pool's  case,  1 
Salk.  368,  Lawton  v.  Lawton,  supra; 
Dutch  bams,  Dean  t'.  AUalley,  3  Esp. 
11  ;  Engines,  Lawton  i\  Lawton,  supra; 
Dudley  v.  Warde,  supra ;  Jibs,  Davis  v. 
Jones,"2  B.  &  Aid.  165  ;  Salt-pans,  Law- 
ton  V.  Salmon,  1  H.  Bl.  259,  n. ;  Shrubs 
planted  for  sale,  Penton  v.  Robart,  2  East, 
88,  Miller  v.  Baker,  1  Met.  27  ;  Soap 
works,  Poole's  case,  supra  ;  Steam-engine, 
Pemberton  r.  King,  2  Dev.  (N.  C.)  376, 
Lemar  v.  Miles,  4  Watts,  330 ;  Stills, 
]{cynolds  r.  Shuler,  5  Cow.  323,  Bnrk  v. 
Baxter,  3  Missouri,  207  ;  Trees  planted 
for  sale,  Penton  v.  Robart,  supra ;  ililler 
r.  Baker,  1  Met.  27 ;  Varnish  house,  Pen- 
ton  V.  Robart,  supra ;  Vats,  Pool's  case, 
su/)ra. 

(o)  Doc  (f.  Williams  i\  Smith,  5  Ad.  & 
El.  350;  Johnstone  r.  Hudlestone,  4  B.  & 
C.  922.  See  also.  Hoc  rl.  Durant  r.  Doo, 
6  Bing.  574 ;  Doc  d.  Harrop  i-.  Green,  4 
Esp.  198. 

{/>)  Jackson  r.  Bryan,  1  Johns.  322; 
Hanchett  r.  Whitney,  1  Verm.  311  ; 
Trousdale  v.  Darnell,  6  Ycrg.  431. 

(7)  In  Massachusetts,  three  months' 
notice  is  enough  in  all  cases  of  tenancy  at 
will,  and  if  the  rent  Iw  jiayable  at  shorter 
periods,  then  the  notice  need  only  equal 
one  of  those  periods.  Rev.  Stat.  c. 
60,  §  26.  A  question  has  recently  arisen 
in  the  Su|)reme  Court  of  Massachusetts, 
in  the  case  of  Prescott  c.  Elms,  7  Cush. 
346,  as  to  the  construction  of  the  last  i)art 

[4o5] 


433* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


*A  notice  to  quit  is  necessary  in  all  those  cases  in  which  the 
implication  of  law  creates  a  tenancy  from  year  to  year,  or  one 
determinable  by  the  landlord,  (r)  But  a  notice  to  quit  is  not 
necessary  where  the  relation  of  landlord  and  tenant  does  not 
subsist,  (s)  or  where  the  tenant  distinctly  disclaims  the  title  of 
his  landlord,  (t) 

As  the  tenant  is  to  act  upon  the  notice  when  he  receives  it, 
it  should  be  such  a  notice  as  he  may  act  upon  safely  ;  and 
therefore  it  must  be  one  which  is  binding  upon  all  parties  con- 
cerned at  the  time  it  is  given,  and  needs  no  recognition  by  any 
one  of  them,  subsequently  ;  (?i)  nor  will  such  recognition  make 
it  sufficient,  (v)     But  a  notice   by  one  joint-tenant  for  himself 


of  this  provision.  It  appeared  in  that 
case  that  the  defendant  was  tenant  to  the 
plaintiff,  and  that  the  rent  was  payable 
monthly,  hut  no  evidence  was  offered  to 
show  oil  what  day  of  the  month  it  became 
due.  On  the  2 1st  day  of  September, 
1848,  the  plaintiff  gave  the  defendant 
notice  to  quit  the  premises,  and  on  the 
26th  day  of  October  following  brought 
his  action  to  recover  them.  The  defend- 
ant requested  the  court  to  ride  that  the 
notice  was  insufficient,  because  it  ought  to 
appear  that  the  notice  covered  an  entire 
period  intervening  between  the  times  of 
paying  rent ;  so  tluit  if  the  rent  was  pay- 
able on  the  first  day  of  each  month,  and 
notice  was  given  on  "the  21st  of  September, 
the  tenant  was  under  no  obligation  to  re- 
move, and  the  plaintiff"  could  not  com- 
mence his  action  until  the  tirst  day  of 
November.  The  court  declining  so  to 
rule,  the  case  was  carried  to  the  Supreme 
Court,  where  the  exception  was  sustained, 
on  the  ground  that  the  Rev.  Stat,  had  in 
this  respect  adopted  the  rule  of  the  com- 
mon law,  as  to  which,  see  13  II.  viii.  15, 
h  ;  Eight  v.  Darbv,  1  T.  R.  159  ;  IJoc  d. 
Shore  v.  Porter,  .3  T.  R.  13  ;  Richardson 
V.  Langridge,  4  Taunt.  128  ;  Doe  d.  Hud- 
dlestonc  v.  Johnston,  McCl.  &  Y.  141. 
But  the  English  rule  applies  only  where 
there  is  a  yearly  tenancy  expressly  or  im- 
pliedly created,  and  there  is  no  agreement 
between  the  ])arties  in  relation  to  the  ter- 
mination of  the  tenancy  ;  but  where  the 
parties  agree  that  the  tenancy  shall  expire 
upon  the  giving  of  a  notice  for  a  certain 
time,  the  notice  may  be  given  at  any 
time.  Doe  d.  King  r.  Grafton,  11  E.  L. 
&  E.  488.  See,  however,  Baker  r.  Adams, 
5  Gush.  89,  and  also  Doc  r.  Cox,  1 1  Q. 

[456] 


B.  122  ;  Post  V.  Post,  14  Barb.  253.  In 
Massachusetts  a  tenant  at  sufferance  is  not 
entitled  to  notice.  Benedict  v.  Morse,  10 
Met.  223  ;  Kinsley  v.  Ames,  2  Met.  29 ; 
Mollis  V.  Pool,  3  Met.  350.  See  also, 
Ellis  V.  Paige,  1  Pick.  43 ;  Coffin  v.  Lunt, 
2  Pick.  70. 

{?•)  Doc  d.  Martin  v.  Watts,  2  Esp.  501, 
7  T.  R.  83  ;  Denn  d.  Brune  i\  Rawlins, 
10  East,  (Day's  cd.)  261,  n.  2. 

(.s)  Riglit  r.  Bawden,  3  East,  260  ;  Roe 
d.  Brune  v.  Prideaux,  10  East,  158.  There- 
fore, if  a  man  gets  into  possession  of  a 
house  to  be  let,  without  the  privity  of  the 
landlord,  and  they  afterwai'ds  enter  into  a 
negotiation  for  a  lease,  but  differ  upon  the 
terms,  the  landlord  may  maintain  eject- 
ment to  i-ecover  possession  of  the  jjremises 
without  giving  any  notice  to  quit.  Doe 
d.  Knight  v.  Quigley,  2  Camp.  505.  So 
a  member  of  a  firm,  occupying  a  house  of 
one  of  his  coi)artners  during  tlie  partner- 
shi]),  is  not  entitled  to  notice  at  its  close. 
Waithman  v.  Miles,  1  Stark.  181.  So  of 
a  vendee  in  possession,  who  has  not  paid 
the  price,  nor  been  recognized  as  a  tenant. 
Doe  d.  jNIoore  v.  Lawder,  1  Stark.  308  ; 
Doc  d.  Lceson  r.  Saver,  3  Camp.  8.  See 
also.  Doe  (/.  Tomes  v.  Chamberlaine,  5 
M.  &  W.  14. 

{t)  Doe  d.  Davies  v.  Evans,  9  M.  &  W. 
48  ;  Doe  d.  Williams  v.  Pasquali,  Peake, 
196  ;  Bower  v.  Major,  1  B.  &  B.  4 ;  Doe 
d.  Calvert  v.  Frowd,  4  Bing.  557  ;  Doe  d. 
Phillips  V.  Rollings,  4  C.  B.  188  ;  Doe  i-. 
Clarke,  Peake's  Add.  Cas.  239. 

{u)  Doe  d.  Fisher  v.  Cuthell,  5  East, 
491 ;  Doe  d.  Lyster  v.  Goldwin,  2  Q.  B. 
143.  And  see  Currier  v.  Barker,  2  Gray, 
224  ;  Steward  v.  Harding,  id.  335. 

(v)  Pa?-/ie,  B.,  in  Buron  ?».  Denman,  2 


CH.  III.] 


HIRING    OF   REAL   PROPERTY. 


*434 


and  the  others  is  sufficient ;  (vv)  and  so  is  a  notice  by  one  co- 
partner for  the  firm,  (ww) 

No  particular  form  of  the  notice  is  necessary  ;  but  there  must 
be  a  reasonable  certainty  in  the  description  of  the  premises,  and 
in  the  statement  of  the  time  when  the  tenant  must  quit.  And 
it  may  be  oral,  unless  there  be  an  express  agreement  that  it 
should  be  in  writing,  (iv)  It  should  be  served  upon  the  tenant, 
personally,  or  by  leaving  it  with  the  tenant's  wife,  or  servant,  at 
the  usual  place  of  abode  of  the  tenant ;  (x)  and  if  so  left  it  is 
sufficient,  although  it  never  *reach  the  tenant,  (y)  If  there  be 
more  than  one  tenant,  the  notice  should  be  addressed  to  all,  but 
it  may  be  served  on  either  one.(jr) 

A  valid  notice,  properly  served,  vests  the  premises  in  the 
landlord,  and  absolutely  terminates  the  tenant's  right  of  posses- 
sion, at  the  time  stated,  (a)  But  this  and  all  other  effect  of  the 
notice  may  be  waived  by  the  landlord,  and  is  so  waived  by  his 
receiving  subsequent  rent  from  the  tenant,  (aa) 


Exch.  167,  188  ;  Doe  d.  Lystcr  v.  Gold- 
win,  supra;  Doe  d.  Mann  v.  Walters,  10 
B.  &  C.  626. 

{vi:)  Doe  d.  Aslln  v.  Summcrsett,  1  B. 

6  Ad.  135  ;  Doe  J.  Kindersley  r.  Hughes, 

7  M.  &  W.  1.39. 

(wir)  Doe  d.  Elliott  r.  Ilulmc,  2  M.  & 
Ry.  483. 

(jf)  Doc  (/.  Macartney?'.  Crick,  5  Esp. 
1 96 ;  Doe  d.  Dean  and  Chapter  of  Roches- 
ter V.  Pierce,  2  Camp.  96;  Legg  rf.  Scot 
r.  Benion,  Willes,  43. 

(x)  Jones  d.  Griffiths  v.  Marsh,  4  T.  R. 
404  ;  Doe  d.  Buross  v.  Lucas,  .5  Esp.  183. 

('/)  Doe  d.  Neville  v.  Dunbar,  M.  «& 
Miilk.  10. 

(=)  Doe    (/.   Bradford    r.   Watkins,  7 

VOL.  I.  39 


East,  551  ;  Doc  d.  Macartney  v.  Crick,  5 
Esp. 196. 

(«)  Turner  v.  Mcymott,  1  Bing.  158; 
Taunton  v.  Costar,  7  T.  R.  431  ;  Lacej 
V.  Lear,  Peake's  Add.  Cas.  210.  Whether 
a  tenant  in  possession,  who,  after  a  f:ood 
notice  has  expired,  has  been  assaulted  and 
forcibly  expelled  from  the  premises,  may 
have  his  action  against  the  landlord,  scem.s 
to  be  doubtful.  See  Newton  v.  Ilarland, 
1  M.  &  G.  644  ;  Harvey  v.  Brydges,  14 
M.  &  W.  437  ;  Wright  v.  Burrougiics,  3 
C.  B.  685. 

(aa)  Collins  v.  Cantv,  6  Cusli.  415; 
Blythe  v.  Dennett,  6  E.  L.  &  E.  424. 
Sec  also.  Hunter  v.  Osterhondt,  11  Barb. 
33. 

[457] 


I 


435  THE  LAW  OF  CONTRACTS.  [BOOK  III. 


CHAPTER  IV. 

SALE  OF  PERSONAL  PROPERTY. 

Sect  I.  —  Essentials  of  a  Sale. 

All  that  is  essential  to  the  sale  of  a  chattel,  at  common  law, 
is  the  agreement  of  the  parties  that  the  property  in  the  subject- 
matter  should  pass  from  the  vendor  to  the  vendee  for  a  consid- 
eration given,  or  promised  to  be  given,  by  tiie  vendee.  Yet 
where  the  parties  have  not  explicitly  manifested  their  meaning, 
the  law  makes  some  important  inferences.  There  is  a  presump- 
tion that  every  sale  is  to  be  consummated  at  once ;  that  the 
chattel  is  to  be  delivered,  and  the  price  paid,  without  delay. 
If,  therefore,  nothing  appears  but  an  offer  and  an  acceptance, 
and  the  vendee  goes  his  way  without  making  payment,  it  is 
held  to  be  a  breach  of  the  contract,  (which  is  presumed  to  have 
contemplated  payment  on  the  spot,)  and  the  vendor  is  not 
bound  by  the  sale.  But  if  there  was  a  delivery  of  the  chattel, 
or  the  receipt  of  earnest,  or  of  part  payment,  either  of  these  is 
evidence  of  an  understanding  that  something  should  remain  to 
be  performed  in  futuro ;  and  the  legal  presumption  is  rebutted. 
Where  the  terms  of  the  contract  expressly  postpone  delivery,  or 
payment,  or  both,  to  a  future  day,  here  also  the  sale  is  valid, 
and  no  legal  presumption  obstructs  the  intention  of  the  parties, 
but  the  property  in  the  chattel  sold  passes  immediately.  In 
this  case  no  earnest  is  necessary  to  bind  the  bargain,  [b)     The 

(6)  The  law  of  sales,  as  it  stands  at  this  munication  and  words  between  the  parties; 
moment  at  the  common  law  is  at  least  as  for  all  bargains  can  be  to  take  effect  in- 
old  as  the  year-books.  In  14  H.  8,  17,  b,  stantly,  or  upon  a  thing  to  be  done  there- 
21,  b,  in  the  Common  Pleas,  the  law  upon  after.  They  can  be  upon  condition,  and 
this  subject  is  thus  stated  by  Pollard,  J. :  tliey  can  also  be  perfect ;  and  yet  no  quid 
"  Bargains  and  sales  all  depend  upon  com-  pro  quo  immediatelv.   And  all  this  depends 

[458] 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*436 


effect  of  the  statute  of  frauds,  in  *modifying  the  principles  of  the 
common  law  in  relation  to  sales,  will  be  considered  hereafter. 
We  will  now  proceed  to  treat  of  an  absolute  sale,  and  then  of 
a  conditional  sale  of  a  chattel. 


SECTION    II. 

ABSOLUTE  SALE  OF  CHATTELS. 

A  sale  of  a  chattel  is  an  exchange  thereof  for  money  ;  but  a 
sale  is  distinctly  discriminated  in  many  respects  from  an  ex- 
change, in  law;  an  exchange  being  the  giving  of  one  thing  and 
the  receiving  of  another  thing  ;  while  a  sale  is  the  giving  of  one 
thing  for  that  which  is  the  representative  of  all  things,  (c) 


upon  the  commnnication  between  you  and 
mc ;  as  that  I  shall  have  £20  for  my  horse, 
and  I  agree ;  now  if  you  do  not  pay  the 
money  immediately,  tiiis  is  not  a  bai-gain ; 
for  my  agreement  is  for  the  .£20,  and  if 
you  do  not  pay  the  money  straightway 
you  do  not  act  according  to  my  agree- 
ment. I  ought,  however,  in  this  case,  to 
wait  convenient  leisure,  to  wit,  until  you 
have  counted  your  money.  But  if  you  go 
to  your  liouse  for  the  money,  am  I  obliged 
to  wait  ?  No,  truly ;  for  I  would  be  in 
no  certainty  of  my  money  or  of  your  re- 
turn ;  and  tliercfore  it  is  no  contract  un- 
less this  [delay]  be  agreed  at  tlic  commu- 
nication. But  if  I  sell  my  horse  to  you 
for  so  much  as  J.  at  S.  shall  say,  this  is 
good  if  he  does  say,  and  if  not,  void  ;  and 
thus  a  contract  can  be  good  or  void,  de- 
pending upon  matter  subsequent.  Like- 
wise if  I  sell  my  horse  for  .£10  to  be  paid 
on  a  day,  now  this  is  good  ;  and  yet  there 
is  no  quid  })ro  quo  immediately."  In  the 
same  case  Brudiul,  C.  J.,  said  :  "As  has 
been  said,  bargains  and  sales  are  as  is 
concluded  and  agreed  between  the  ])artics 
—  as  tlieir  intentions  can  be  gathered. 
For  if  I  sell  my  liorse  to  you  for  .£10,  and 
we  both  are  agreed,  and  I  accept  a  penny 
in  earnest,  this  is  a  perfect  contract ;  you 
Bhall  have  the  horse,  and  I  sliall  have  an 
action  for  tlie  mone}'.  But  if  I  wish  to 
sell  my  horse  to  you  for  £10,  and  you  say 
that  you  will  give  .£10  for  him,  and  I  say 
that  I  am  content ;  still,  if  you  do  not  pay 
tlie  money  now,  but  depart  from  the  place. 


this  is  no  bargain,  for  I  am  only  content 
that  you  should  have  my  horse  for  £10, 
and  notwithstanding  you  say  you  are  con- 
tent, the  transaction  is  yet  not  perfect ; 
for  you  do  not  pay  the  money,  and  so  do 
not  perform  the  agreement."  See  also, 
Shep.  Touch,  p.  224.  And  also,  Noy's 
ilaxims,  p.  88. 

(c)  The  distinction  between  sales  and 
exchanges  is  well  pointed  out  in  an  anony- 
mous case  in  3  Salk.  1.57,  where  it  is 
said  :  —  "  Permututio  vicina  est  emptioni, 
but  exchanges  were  tlie  original  and  nat- 
ural way  of  commerce,  precedent  to  buy- 
ing, for  tlicre  was  no  buying  till  money 
was  invented ;  now,  in  exclianging,  both 
))arties  are  l)uyers  and  sellers,  and  both 
equally  warrant  ;  and  as  this  is  a  natural 
ratlier  tlian  a  civd  contract,  so  l)y  the  civil 
law,  upon  a  bare  agreement  to  exchange, 
without  a  delivery  on  both  sides,  neither 
of  the  parties  could  have  an  action  upon 
such  agreement,  as  they  may  in  cases  of 
selling  ;  but  if  tlicrc  was  a  delivery  on  one 
side,  and  not  of  the  other,  in  such  case  the 
deliverer  miglit  have  an  action  to  recover 
tlie  thing  wbicli  he  delivered,  but  he  could 
have  no  action  to  enforce  the  other  to  de- 
liver what  he  had  agreed  to  deliver,  and 
whicii  the  deliverer  wa.s  to  have  in  lieu  of 
tliat  thing  which  he  delivered  to  tlie  other." 
—  If  goods  have  been  delivered  by  one 
party,  and  the  otiier  party  agrees  to  de- 
liver otlicr  goods  of  a  similar  quajitj'  on 
demand,  the  transaction  is  not  a  sale,  but 
an  agreement  to  exchange.     Mitcliell  r. 

[  459  ] 


437- 


THE   LAW   OF    CONTRACTS. 


[book  III. 


For  a  sale  to  be  valid  in  law,  there  must  be  parties,  a  consid- 
eration, and  a  thing  to  be  sold.  All  persons  may  be  parties  to 
a  sale,  unless  they  labor  under  the  disabilities  or  restraints 
which  have  been  spoken  of  in  reference  to  contracts  generally. 

Of  the  consideration  we  have  spoken  already. 

The  existence  of  the  thing  to  be  sold,  or  the  subject-matter 
of  the  contract,  is  essential  to  the  validity  of  the  contract,  (d) 
If  a  horse  sold  be  dead  before  the  sale,  or  merchandise  be  de- 
stroyed by  fire,  both  parties  being  ignorant  thereof,  the  sale  is 
wholly  void.  If  a  substantial  part  of  the  thing  sold  be  non- 
existent, it  is  said  (e)  that  the  buyer  has  his  option  to  rescind 
the  sale,  or  take  the  remainder  with  a  reasonable  abatement  of 
the  price.  But  where  the  parties  are  equally  innocent,  we  think 
the  meaning  and  effect  of  this  rule  is  that  the  buyer  should  have 
only  his  choice  between  enforcing  or  rescinding  the  contract  as 
to  the  remainder.     That  is,  he  may  take  the  remainder,  if  he 


Gile,  12  New  Hamp.  390. — And  proof 
of  an  exchange  will  not  sii]jpoit  an  aver- 
ment of  a  sale  of  goods.  Vail  v.  Strong, 
10  Verm.  457.  — But  in  Sheldon  i\  Cox, 
3  B.  &  C.  420,  where  A  agreed  to  give  a 
horse,  warranted  sound,  in  exchange  for 
a  horse  of  B,  and  a  sum  of  money ;  and 
the  horses  were  exchanged,  but  B  refused 
to  pay  the  money,  pretending  that  A's 
horse  was  unsound;  it  was  hM  that  it  might 
be  recovered  on  an  indebitatus  count  for 
horses  sold  and  delivered. 

(d)  Wood  &  Foster's  case,  1  Leon.  42 ; 
Grantham  i'.  Hawley,  Hob.  132 ;  Strick- 
land V.  Turner,  14  E.  L.  &  E.  471  ;  Rob- 
inson V.  Macdonnell,  5  M.  &  S.  228,  where 
it  was  held  that  an  assignment  of  the 
freight,  earnings,  and  profits  of  a  ship 
does  not  extend  to  the  profits  not  in  ex- 
istence, actual  or  potential,  at  the  time  of 
the  assignment.  Therefore,  where  C.  as- 
signed by  deed  to  S.  the  freight,  earnings, 
and  profits  of  the  ship  W.,  wliich  ship 
afterwards  in  a  voyage  to  the  South  Seas, 
obtained  a  quantity  of  oil,  the  produce  of 
whales  taken  in  tlic  said  voyage  ;  it  was 
held,  that  this  oil  did  not  pass  to  S.  by  the 
assignment ;  for  the  assignor  had  no  prop- 
erty, actual  or  potential,  in  the  oil,  at  the 
time  of  assignment,  and  the  vojaga  was 
not  then  contemplated.  But  where  the 
plaintiffs  had  shipped  corn  to  London  in  a 
vessel  chartered  by  them,  and  sent  the  bill 
of  lading,  together  with  the  policvof  insur- 

[460] 


ance  effected  upon  the  property,  to  the  de- 
fendants, corn-factors  in  London,  who  were 
to  act  under  a  del  credei-e  commission,  and 
the  defendants  on  the  15tli  of  May  sold 
the  cargo  to  C.  sending  him  a  bought  note, 
stating  that  he  had  bought  of  them  1180 
quarters  of  Salonica  Indian  corn,  of  fair 
average  quality  when  shipped  on  board 
The  Kezia  Page  from  Salonica,  bill  of 
lading  dated  February  22  :  at  27s.  per 
quarter,  free  on  board  and  including 
freight  and  insurance  to  a  safe  port  in  the 
United  Kingdom,  the  vessel  calling  at 
Cork  or  Falmouth  for  orders,  payment  to 
be  upon  handing  shipping  documents  ;  it 
was  Jield  {Pollock,  C.  B.  dissenting)  that 
tlie  meaning  of  the  contract  was  that  the 
purchaser  bought  the  cargo  if  it  existed  at 
the  date  of  the  contract,  but  that  if  dam- 
aged or  lost  he  bought  tiie  benefit  of  the 
insurance,  and  therefore  although  upon 
the  voyage  the  corn  had  become  fermented 
and  so  heated  that  it  was  unfit  to  be  car- 
ried, and  was  sold  on  the  24th  April  at 
Tunis  Bay,  he  was  i)ound  to  pay  tlie  stip- 
ulated price  in  a  reasonable  time  after  the 
delivery  of  the  shipping  documents,  and 
that  therefore  the  defendants  were  liable 
to  the  plaintiff,  under  their  del  credere  com- 
mission. Couturier  v.  Hastie,  16  E.  L.  & 
E.  5G2. 

(e)  2  Kent's  Com.  Lee.  39,  p.  469.  — 
The  same  rule  obtains  in  the  French  Law, 
Code  Napoleon,  No.  1601. 


I 


CH. 


IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*438 


will  pay  the  price  of  the  whole,  or  will  pay  it  with  an  abatement 
which  can  be  made  exact  by  a  mere  numerical  proportion;  as 
where  the  goods  were  all  of  one  quality,  and  a  certain  part  was 
wholly  destroyed,  and  the  residue  left  wholly  uninjured.  But  if 
a  new  price  is  to  be  made  for  the  remainder,  by  a  new  estimate 
of  its  value,  this  can  be  done  only  by  mutual  consent.  (/) 

*A  mere  contingent  possibility,  not  coupled  with  an  interest, 
is  no  subject  of  sale ;  as  all  the  wool  one  shall  ever  have ;  (g-) 
or  the  sheep  which  a  lessee  has  covenanted  to  leave  at  the  end 
of  an  existing  term.  If  rights  are  vested,  or  possibilities  are 
distinctly  connected  with  interest  or  property,  they  may  be 
sold.  (/<)  But  if  one  sells  what  he  has  not  now,  and  has  made 
no  contract  for  purchasing,  and  has  no  definite  right  to  expect, 
as  by  consignment,  but  intends  to  go  into  the  market  and  buy, 
it  has  been   held  that  he  cannot  enforce  this  contract ;  (i)  and 


(/)  Sec  also,  Farrcr  v.  Niglitingal,  2 
Esp.  639,  wliercLonl  Kentjon  said  :  —  "I 
liave  often  ruled  tliat  Avliere  a  person  sells 
an  interest,  and  it  appears  that  the  interest 
which  he  pretended  to  sell  was  not  the 
true  one  ;  as,  for  exainjile,  if  it  was  for  a 
lesser  number  of  years  than  he  had  con- 
ti-acted  to  sell,  the  buyer  may  consider  the 
contract  as  at  an  end,  and  bring  an  action 
for  money  had  and  received  to  recover 
hack  any  sum  of  money  he  may  have  paid 
in  part  performance  of  the  agreement  for 
the  sale ;  and  though  it  is  said  here,  that 
upon  the  mistake  being  discovered  in  the 
number  of  years  of  which  the  defendant 
stated  iiimself  to  be  possessed,  he  ottered 
to  make  an  allowance  protdiilo,  that  makes 
no  dittcrcnce  in  the  case ;  it  is  siiflicicnt 
for  the  ])Iaintift"  to  say,  that  is  not  the  in- 
terest which  I  agreed  to  purchase." 

(^)  See  Grantiiam  v.  Ilawley,  Iloh.  132. 
See  Langton  u.  llorton,  1  Ilarc,  5.')6.  Rut 
a  valid  sale  may  be  made  of  the  wine  that 
a  vineyard  is  expected  to  produce  ;  or  the 
grain  that  a  field  is  expected  to  grow  ;  or 
the  milk  that  a  cow  may  yield  dm-ing  the 
coming  year,  or  the  future  young  born  of 
a  female  animal  then  owned  l)}-  the  vendor, 
(McCartv  r.  Blevins,  .">  Yerg.  195  ;  Con- 
greve  v.  Evctts,  2G  E.  L.  &  E.  493,)  or  the 
wool  that  shall  hereafter  grow  ui)on  his 
sheep.  But  sec  Screws  v.  Roach,  22  Ala. 
675. 

(/()  See  Jones  r.  Koc,  3  T.  K.  88.— 
But  the  expectancy  of  an  heir  presumptive, 
or  apparent,  (the  fec-sini])le  i)eing  in  the 


ancestor,)  is  not  an  interest  or  a  possibility 
capable  of  being  the  subject  of  a  contract. 
Carleton  v.  Leighton,  3  Mer.  6C7. 

(/)  Bryan  v.  Lewis,  Ky.  &  Mood.  386. 
And  see  Lorvmer  r.  Smith,  1  B.  &  C.  1, 

2  D.  &  R.  23,  Abbott,  C.  J. ;  Head  r. 
Goodwin,  37  Me.  1S7  ;  Stanton  v.  Small, 

3  Sandf.  230.  But  this  doctrine  was  di- 
rectly overruled  in  the  late  case  of  liibble- 
whitc  V.  McMorinc,  5  M.  &  W.  4G2,  where 
Pdikc,  B.,  in  delivering  tlie  judgment  of 
the  court,  is  reported  to  have  said:  "I 
have  always  entertained  considerable  doubt 
and  suspicion  a.s  to  the  correctness  of  Lord 
Tenterden's  doctrine  in  Bryan  v.  Lewis  ; 
it  excited  a  good  deal  of  surprise  in  my 
mind  at  the  time  ;  and  when  examined,  I 
think  it  is  untenable.  I  cannot  see  what 
princijile  of  law  is  at  all  affected  by  a  man's 
being  allowed  to  contract  for  the  sale  of 
goods,  of  which  he  has  not  possession  at 
the  time  of  the  bargain,  and  has  no  rea- 
sonable exjiectation  of  receiving.  Such  a 
contract  docs  not  amount  to  a  wager,  inas- 
much as  both  tlie  contracting  ])artics  are 
not  cognizant  of  the  fact  that  the  goods 
are  not  in  tjic  vendor's  possession ;  and 
even  if  it  were  a  wager,  it  is  not  illegal, 
because  it  has  no  necessary  tendency  to 
injure  third  parties.  The  dicliim  of  Lord 
Tentcrden  certainly  was  not  a  iiasty  ob- 
servation thrown  out  by  him,  because  it 
appears  from  the  case  of  Lorymer  v.  Smith 
that  he  had  entertained  and  expressed 
similar  notions  four  years  before.  He  did 
not,  indeed,  in  that  case,  sav  that  such  a 

[  4Gl"j 


439' 


IHE  LAW   OF   CONTRACTS. 


[book  III. 


although  this  is  questioned,  such  a  contract  if  enforceable,  as  by 
the  later  authority  and  the  better  reason  it  seems  to  be,  must 
certainly  be  regarded  as  a  contract  for  a  future  sale,  and  not  as 
a  present  contract  of  sale  ;  and  therefore  the  property  in  the 
thing  when  it  is  acquired  by  the  proposed  vendor,  does  not  pass 
at  once  to  the  proposed  vendee  until  the  actual  sale  be  made,  (u) 
A  sale  may  be  good  in  part,  and  void  as  to  the  residue; 
*good  as  between  the  parties,  but  void  as  to  creditors  ;  good  as 
to  some  of  the  creditors,  but  void  as  to  others,  (j) 


SECTION    III. 

PRICE,    AND    AGREEMENT    OF    PARTIES. 

The  price  to  be  paid  must  be  certain,  or  so  referred  to  a  definite 
standard  that  it  may  be  made  certain  ;  —  (k)  as  what  another 


contract  was  void,  but  only  tliat  it  Avas  of 
a  kind  not  to  be  encouraged;  and  tbc 
strong  opinion  be  afterwards  expressed  ap- 
pears to  bave  gradually  formed  in  bis 
mind  during  tbc  interval,  and  was  no 
doubt  confirmed  by  tbe  effects  of  tbe  un- 
fortunate mercantile  speculations  througb- 
out  the  country  about  tbat  time.  There  is 
no  indication  in  any  of  tbe  books  of  such 
a  doctrine  having  ever  been  promulgated 
from  the  bench,  until  the  case  of  Lorymcr 
V.  Smith,  in  the  year  1822;  and  there  is 
no  case  which  has  been  since  decided  on 
that  authority.  Not  only,  then,  was  the 
doubt  expressed  hy  Bosariqiid,  J.,  in  Wells 
V.  Porter,  well  founded,  but  the  doctrine 
is  dearly  contrary  to  law."  See  also. 
Wells  V.  Porter,  2  Bing.  N.  C.  722,  Bo- 
sanqnet,  J. ;  Mortimer  i\  McCallan,  6  M. 
&  W.  58;  Stanton  v.  Small,  .3  Sandf.230. 

(ii)  Black  V.  Webb,  20  Ohio,  .304; 
Stanton  v.  Small,  3  Sandf.  230;  Lunn 
.V.  Thornton,  1  Com.  Bench,  385. 

( ;■  Bradford  v.  Tappan,  11  Pick.  76,  79. 

(k)  Brown  v.  Bellows",  4  Pick.  189, 
where  the  price  was  fixed  by  referees,  and 
the  court  said  in  giving  judgment :  "  It  is 
objected  tbat  tbe  price  should  have  been 
•fixed  by  tbe  agreement,  whereas  it  was  to 
be  ascertained  by  the  referees  ;  and  we 
are  referred  to  Inst.  3,  24,  pr.  where  it  is 
said :  "  Pretium  antem  constitui  opoitet,  7iam 

[4G2] 


nulla  cinptio  sine  pretio  esse  potest."  But 
■\ve  apply  another  rule  —  idceitum  est,  (/nod 
certum  reddi  potest.  It  was,  indeed,  for- 
merly doubted  whether,  when  a  thing  was 
to  be  sold,  at  M'hatever  price  Titius  should 
value  it,  such  contract  would  be  good  ;  but 
by  Inst.  3,  24, 1,  it  is  decided  that  it  would 
be,  '  sed  nostra  decisio  ita  hoc  constituit,  ut 
rjuotles  sic  composita  sit  venditio,  qmmti  ille 
astiniaverit,  sub  luic  conditione  staret  contrac- 
tus, id  siquidem  ille,  qui  nominatus  est,  pretium 
dejinierit,  tunc  omnimodo  secundum  ejus  ees- 
tltnationem  et  pretium  persolvatur,  et  res  tra- 
dalur,  et  venditio  ad  effectum  perducatur.' 
So  it  is  said  in  AylifFe's  Civ.  Law,  B.  4, 
tit.  4  :  —  '  The  price  agreed  on  between 
the  parties  ought  to  be  certain ;  where- 
fore a  purchase  is  not  valid  if  it  depends 
on  the  will  of  tbc  buyer  or  seller ;  though 
such  price  maybe  well  enough  referred  to 
tlic  arliitration  of  a  third  person  to  adjudge 
and  determine  the  value  of  the  thing  sold.' 
'  And  thus  the  certainty  of  a  price  may  be 
bad,  citlicr  l)y  tbe  determination  of  the 
contracting  parties  themselves,  or  else  by 
relation  had  to  some  person  or  thing.'  In 
the  case  at  bar,  the  referees  bave  fixed  the 
price,  and  according  to  these  authorities, 
and  the  reason  of  the  thing,  tlie  sale  should 
be  carried  into  effect,  unless  for  some  other 
objection  which  has  been  made  liy  the 
counsel  for  the  defendant,  it  should  be  dif- 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*440 


man  has  given ;  or  what  another  man  shall  say  should  be  the 
price ;  but  if  this  third  party  refuse  to  fix  the  price,  the  sale  is 
void.  (/)  And  the  thing  sold  must  be  specific,  and  capable  of 
certain  identification.  There  must  be  an  agreement  of  mind  as 
to  this ;  and  if  there  be  an  honest  error  as  to  the  price,  or  as  to 
the  substantial  and  essential  qualities  of  the  thing  sold,  (not  as 
to  its  mere  worth  or  condition,)  the  sale  may  be  treated  as 
null,  (in)  This  agreement  of  mind  may  be  expessed  orally  or 
by  letter;  and  in  the  latter  case,  the  contract  is  complete  when 
a  distinct  *proposition  made  by  letter  is  accepted  by  a  letter 
mailed  or  otherwise  sent  by  the  party  receiving  the  offer,  bond 
fide,  within  a  reasonable  time,  and  before  he  receives  informa- 
tion of  a  withdrawal  of  the  offer.  But  we  have  already  consid- 
ered these  questions  fnlly,  when  treating  of  assent ;  and  we 
would  refer  in  this  connection  to  what  we  there  said,  (n) 


SECTION     IV. 

THE    EFFECT    OF    A    SALE. 

Upon  a  completed  sale  the  jDroperty  in  the  thing  sold  passes 
to  the  purchaser;  one  of  these  things  implies  the  other;  if  the 
property  passes  then  it  is  a  completed  sale ;  and  if  a  completed 
sale  then  the  property  passes,  (o)      If  it  be  sold  for  cash,  and  the 


fercntly  <lctcrminc(l."  Sec  also,  Fla<rj:;  v. 
Mann,  2  Sumner,  539  ;  Cunnin;,'-liani  v. 
Aslibrook,  21)  Missouri,  553  ;  ^leCantllisli 
V.  Newman,  22  Pcnn.  St.  Kep.  400. 

(/)  Story  on  Sale.-^,  §  220.  A  sale  may 
be  made  of  an  artiele  ibr  what  it  is  worth, 
for  that  can  ho  ascertained  hv  exi)erts. 
Sec  Ilooilly  1-.  McLaine,  10  liin<^.  487  ; 
Acebal  c.  Levy,  id.  382.  See  also,  Dick- 
son r.  J((rdan,  12  Ire.  L.  70. 

(m)  See  Kellv  v.  Solari,  9  M.  &  W.  54; 
Lucas  V.  Worswick,  1  M.  &  Hoi).  293. 

(n)  Sec  ante,  p.  403,  rt  seq.  See  also, 
Routled-re  i-.  Grant,  4  Biiiff.  653  ;  Bean 
V.  Burluiiik,  IG  Maine,  458.  Wliere  a 
proposal  tu  purchase  jroods  is  made  hy 
letter  sent  to  another  State,  and  is  there 
assented  to,  the  contract  of  sale  is  made 
in  that  State,  and  if  it  is  valid  hvthe  laws 


of  the  latter  State,  it  will  he  enforced  in 
the  State  whence  the  letter  is  sent,  aithou};!! 
it  wouhl  liave  liecn  invalid  if  made  there. 
Mclntyre  v.  I'arks,  3  Met.  207. 

(")  Baijlpy,  J.,  in  Simmons  v.  Swift,  5 
B.  &  C.  8r.2 ;  Dixon  r.  Yates,  2  Nev.  & 
Mann.  202,  Ptirkr,  J.  ;  Atkin  r.  Barwick, 
1  Strani^e,  167,  wliere  Fortesnir,  J.,  says  : 
"  Property  hy  our  law  may  he  divested 
without  an  actual  delivery  :  as  a  liorsc  in 
a  stable."  It  is  exactly  otherwise  in  the 
Roman  civil  law,  and  the  laws  of  those 
nations  in  Europe  which  adojtt  the  civil 
law  as  the  basis  of  their  law.  The  prop- 
erty {(loiiiini'iim)  does  not  pass  until  de- 
livery. Thus,  if  a  seller  retains  the  thinpc 
sold,  to  be  delivered  a  \\eek  hence,  and  in 
the  mean  time  liecomes  insolvent,  tlic 
buyer  does  not  hold  the  tiiinjr,  l)ut  it  goes 

[463] 


441* 


THE    LAW    OF    CONTRACTS. 


[book  in. 


price  be  not  paid,  or  if  it  be  sold  on  a  credit,  but  by  tlie  terms 
of  the  bargain  is  to  remain  in  the  hands  of  the  vendor,  the  ven- 
dor has  a  lien  on  it  for  the  price  ;  (p)  and  only  payment  or  ten- 
der gives  the  vendee  a  right  to  possession.  And  if  it  be  sold  on 
credit,  and  the  buyer  by  the  terras  of  the  bargain  has  the  right 
of  immediate  possession  without  payment,  but  the  thing  sold 
actually  remains  in  the  possession  of  the  seller  until  the  credit 
has  expired,  and  the  price  is  still  unpaid,  it  seems  that  the  seller 
then  has  a  lien  for  the  price,  (pp)  If  the  property  passes,  though 
not  the  right  of  possession,  and  the  thing  sold  perish,  the  loss 
falls  on  the  purchaser,  (q)  His  lien  is  destroyed  by  a  delivery 
of  the  goods,  or  by  a  delivery  of  a  part,  without  intention  to 
separate  it  from  the  rest,  but  with  an  intention  thereby  to  give 
possession  of  the  whole,  (r)  If  sold  *for  cash,  and  the  money 
be  not  paid  within  a  reasonable  time,  the  vendor  may  treat  the 
sale  as  null,  (.v)  There  may,  however,  be  a  delay  in  the  pay- 
ment justified  by  the  terms  or  the  nature  of  the  contract. 

The  property  does  not  pass  absolutely  unless  the  sale  be  com- 
pleted; and  it  is  not  completed  until  the  happening  of  any 


with  his  assets  to  the  assignees.  All  the 
buyer  holds  is  a  claim  against  tlie  seller 
for  the  value  of  the  thing,  and  for  this 
debt  of  the  seller  the  buyer  takes  only  his 
dividend  like  other  creditors  ;  for  by  a  sale 
only,  without  delivery,  the  buyer  acquires 
only  a  jus  ad  rem  and  not  a  /»s  in  re.  See 
1  Bell's  Commentaries,  1 66,  et  seq.  But 
for  the  common  law  rule,  see  cases  cited 
in  next  note  ;  also  Noy's  Maxims,  p.  88  ; 
Hinde  t'.  Whitehouse,"?  East,  558,  Lord 
Elknhoromjh ;  Com.  Dig.  Agreement,  B. 
3;  Tarling  r.  Baxter,  6  B:  &  C.  362; 
Felton  r.  Fuller,  9  Fost.  121.  —  See,  how- 
ever, Baylev  v.  Culvenvell,  2  M.  &  Ey. 
566,  note  ;  Langfort  v.  Tiler,  1  Salk.  113. 

(p)  Bloxam  v.  Sanders,  4  B.  &  C.  948; 
Cornwall  r.  Haiglit,  8  Barb.  328  ;  Bowen 
V.  Burk,  13  Pcnn.  146.  See  also,  I^ixon 
V.  Yates,  5  B.  &  Ad.  313;  AVithers  v. 
Lvss,  4  Camp.  237  ;  Bush  v.  Davies,  2 
M.  &  S.  397 ;  Langfort  v.  Tiler,  1  Salk. 
113.  And  see  Foley  r.  Mason,  6  Maryl. 
37  ;  Henderson  v.  Lauck,  21  Penn.  St. 
Rep.  359  ;  Sweeney  v.  Owsley,  14  B. 
Monr.  413. 

(pp)  New  V.  Swain,  Danson  &  Lloyd's 
Mercantile  Cases,  193. 

[464] 


(q)  Tarling  v.  Baxter,  6  B.  &  C.  362. 
See  also,  Willis  v.  Willis,  6  Dana,  48 ; 
Macomberr.  Parker,  13  Pick.  183;  Far- 
num  V.  Ferry,  4  Law  Reporter,  276 ; 
Crawford  c.  Smith,  7  Dana,  61. 

(r)  Merc  delivery  of  part  will  not,  how- 
ever, divest  tlie  vendor  of  his  lien,  as  to 
the  whole,  if  any  thing  remains  to  be  done 
by  the  vendor  to  the  part  undelivered.  Sim- 
mons V.  Swift,  5  B.  &  C.  857.  See  on 
this  subject,  Slubey  v.  Heyward,  2  H.  Bl. 
504  ;  Hammond  v.  Anderson,  4  B.  &  P. 
69  ;  Hanson  v.  Meyer,  6  East,  614  ;  Ward 
r.  Shaw,  7  AVend.  404 ;  Payne  v.  Shad- 
bolt,  1  Camp.  427  ;  Brewer  v.  Salisbuiw, 
9  Barb.  511  ;  Weld  v.  Cutler,  2  Gray, 
195.  Of  course  if  the  vendee  obtains  pos- 
session by  fraud  he  can  derive  no  rights, 
and  the  vendor  can  lose  none  by  such  a 
deliver^'.  Earl  of  Bristol  r.  Willsmore,  1 
B.  &  C.  514.  See  also,  Hussey  v.  Thorn- 
ton, 4  Mass.  405. 

(s)  Anonymous,  Dver,  30,  a.  See  also, 
Langfort  r."  Tiler,  1  Salk.  113.  But  see 
Greaves  v.  Ashlin,  3  Camp.  426,  contra. 
See  also,  Blackburn  on  Contract  of  Sale, 
p.  328,  €t  seq. 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


-441 


event  expressly  provided  for,  or  so  long  as  any  thing  remains  to 
be  done  to  the  thing  sold,  to  put  it  into  a  condition  for  sale,  or 
to  identify  it,  or  discriminate  it  from  other  things,  or  to  deter- 
mine its  quantity,  if  the  price  depends  on  this  ;  unless  this  is  to 
be  done  by  the  buyer  alone,  (t) 

An  agreement  to  sell  is  a  different  thing  from  a  sale,  and 
therefore  no  mere  promise  to  sell  hereafter,  amounts  to  a  present 
sale  ;  so,  an  acceptance  of  a  specific  order  for  certain  chattels  is 
not  itself  a  sale  of  those  chattels  either  to  the  drawer  or  to  the 
party  in  whose  favor  the  order  is  drawn.  (U)  And  it  is  always 
a  question  of  fact  for  the  jury,  whether  a  sale  has  been  com- 
pleted or  not.  (u) 


SECTION     V, 


OF   POSSESSION   AND    DELIVERY. 


While  as  between  the  parties,  the  property  passes  by  a  sale 
without  delivery,  it  is  not  valid,  in  general,  as  against  a  third 


{t)  Tarling  v.  Baxter,  6  B.  &  C.  360 ; 
Gillctt  V.  Hill,  2  C.  &  M.  535 ;  Za<iury  v. 
Furncll,  2  Camp.  240 ;  Wallace ;;.  Breeds, 
13  East,  522;  Busk  v.  Davis,  2  M.  &,  S. 
397;  Slieplcv  v.  Davis,  5  Taunt.  017; 
Rhodes  v.  thuaitcs,  6  B.  &  C.  388; 
Alexander  v.  Gardner,  1  Binp:.  N.  C.  676. 
But  where  the  tiling  to  be  done  by  the 
vendor  is  but  trifling,  or  is  but  a  mathe- 
matical computation,  this  rule  will  not 
apply.  Thus,  where  there  was  a  sale  of 
certain  trees,  at  a  fixed  price  per  cubic 
foot,  and  the  trees  had  been  all  marked, 
and  the  cubical  contents  of  each  tree  ascer- 
tained, it  was  Iiehl  that  the  property  jiassed 
to  tlie  purchaser,  althougli  the  sum  total 
of  the  cubical  contents  had  not  been  ascer- 
tained. Tansk'v  '■•  Turner,  2  Bing.  N. 
C.  151,  2  Scott,"  238.  And  see  Cunning- 
ham V.  Ashl)rook,  20  Missouri,  553.  Tiie 
general  principle  stated  in  the  text  is 
recognized  in  the  following  American 
cases.  Dixon  v.  IMevers,  7  Grattan,240; 
Ward  V.  Shaw,  7  Wend.  404  ;  McDonald 
V.  Ilewctt,  15  Johns.  349  ;  Barrett  v.  God- 
dard,  3  Mason,  112;  Kajjclye  r.  Mackic, 
6  Cowen,  250;  Bussell  v.  Nko11,3  Wend. 


112;  Outwater  v.  Dodge,  7  Cowen,  85; 
Stevens  r.  Eno,  10  Barb.  95  ;  Damon  v. 
Osborn,  1  Pick.  476  ;  Macomber  r.  Parker, 
13  id.  175;  Houdlette  v.  Tallman,  14 
Maine,  400 ;  Cushman  v.  Holyoke,  34 
id.  289;  Stone  v.  Peacock,  35 "id.  385; 
Colder  v.  Ogden,  15  Penn.  528;  Lester 
V.  JMcDowell,  18  Penn.  91  ;  Nesbit  v. 
Burrv,  25  Penn.  St.  Rep.  208;  Riddle  v. 
Varn'um,  20  Pick.  280  ;  Davis  v.  Hill,  3 
N.  Ilamp.  382  ;  Messer  v.  Woodman,  2 
Foster,  172;  Warren  i\  Buckminstcr,  4 
Poster,  337  ;  Crawford  r.  Smith,  7  Dana, 
61.  —  But  it  is  /«/(/,  that  if  the  parties  in- 
tended that  the  sale  should  lie  complete 
before  the  article  sold  is  weighed  or  meas- 
ured, the  i)roperty  will  pass  before  this 
is  done.  Riddle  v.  Varnum,  20  Pick.  280. 
See  also,  Buttcrworth  c.  McKinly,  11 
Humph.  206  ;  Waldron  v.  Chase,  3"7  Me. 
414;  Moody  v.  Brown,  34  id.  107  ;  Cush- 
man r.  Holyoke,  id.  289.  But  see  Waldo 
i:  Belcher,  "ll  Ire.  L.  609. 

(//)  Burrall  v.  Jacob,  1  Barb.  165. 

(«)  DeRidder  r.  McKniirbt,  13  Johns. 
294. 

[4Go] 


442* 


THE   LAW   OF   CONTKACTS. 


[book  hi. 


party  without  notice,  without  delivery.  For  if  the  same  thing 
be  sold  by  the  vendor  to  two  parties  by  *conveyances  equally 
valid,  he  who  first  gets  possession  will  hold  it.  (uu)  In  general, 
where  there  is  a  completed  sale,  and  no  change  of  possession, 
this  retaining  of  possession  by  the  vendor  is  a  badge  of  fraud, 
and  will  avoid  the  sale  in  favor  of  a  party  who  subsequently 
acquires  title  to  the  property  in  good  faith,  and  with  no  knowl- 
edge of  the  sale.  In  the  days  of  Mansfield  and  Buller,  posses- 
sion retained  by  the  seller  or  mortgagor  of  chattels,  gave  rise  to 
an  inference  of  law  of  fraud.  This  severe  doctrine  has  certainly 
been  held  in  many  cases  down  to  the  present  day,  both  in  Eng- 
land and  in  this  country.  But  the  rule  has  been  much  modified 
in  other  cases.  And  there  seems  now  to  be  a  tendency  to  con- 
sider the  question  of  fraud  in  all  such  cases  as  a  question  of 
fact,  in  relation  to  which  the  circumstance  of  possession  is  of 
great  weight,  though  not  absolutely  conclusive.  The  question 
is  thus  taken  from  the  court  who  should  infer  it  from  a  single 
fact,  and  is  left  to  the  jury,  who  may  consider  all  the  facts,  and 
determine  how  far  the  fact  of  possession  is  explained,  and  made 
consistent  with  an  honest  purpose.(i?) 


{uu)  2  Kent's  Com.  522;  Dawes  v. 
Cope,  4  Binii.  258  ;  Babb  r.  Clcmson,  10 
S.  &  R.  419 ;  Fletcher  v.  Howard,  2  Aik. 
115. 

[v)  Although  few  questions  in  the  law 
present  a  greater  conflict  of  authorities 
than  this,  we  believe  that  reason,  analogy, 
and  the  current  of  modern  authority,  both 
English  and  American,  support  the  prin- 
ciple laid  down  in  the  text.  The  subject 
is  ably  examined  in  2  Kent's  Com.  515, 
et  seq. ;  and  Smith's  Leading  Cases,  (4th 
Am.  ed.)  vol.  1,  p.  1,  et  seq.  The  follow- 
ing authorities  adopt  the  view  of  the  text. 
Cadogan  r.  Kennett,  Cowp.  4.32  ;  East- 
wood ('.  Brown,  Ry.  &  Mood.  312  ;  Kidd 
V.  Rawlinson,  2  B.  &  P.  59  ;  Cole  v.  Da- 
vies,  1  Lord  Raym.  724 ;  Lady  Arundell 
r.Phipps,  10  Ves.  145  ;  Watkins  i'.  Birch, 
4  Taunt.  82.3  ;  Latimer  i\  Batson,  4  B.  & 
C.  652;  Steward  r.  Lombe,  1  Brod.  & 
Bing.  50G  ;  Wooderman  v.  Baldock,  8 
Taunt.  67C ;  Hoifman  v.  Pitt,  5  Esp.  22  ; 
Armstrong  v.  Baldock,  Gow,  33 ;  Storer 
V.  Hunter,  3  B.  &  C.  368  ;  Land  v.  Jef- 
fries, 5  Rand.  211  ;  Terry  r.  Belcher,  1 
Bailey,    568 ;    Howard   i".   Williams,    id. 

[466] 


575;  Smith  v.  Henry,  2  id.  118;  Callen 
V.  Thompson,  3  Yer^.  475 ;  Maney  v. 
Killough,  7  id.  440  ;  Mitchell  v.  Beal,  8 
id.  142;  Baylor  v.  Smithers,  1  Litt.  112  ; 
Goldsbury  v.  May,  id.  256  ;  Hundley  v. 
Webb,  3  J.  J.  Marsh.  643;  Walsh  v. 
Medley,  1  Dana,  269  ;  Bissell  v.  Hopkins, 
3  Cow.  166  ;  Thompson  v.  Blanchard,  4 
Corns.  303  ;  Griswold  v.  Sheldon,  id.  580; 
Brooks  V.  Powers,  15  Mass.  244;  Bartlett 
V.  Williams,  1  Pick.  288 ;  Homes  v. 
Crane,  2  id.  607  ;  Wheeler  v.  Train,  3  id. 
255 ;  Adams  v.  Wheeler,  10  id.  199 ; 
Marden  v.  Babcock,  2  Met.  99 ;  Haven  ?;. 
Low,  2  New  Hamp.  13;  Kendall  v.  Pitts, 
2  Foster,  1 ;  Walcott  i'.  Keith,  id.  198 ; 
Coburn  v.  Pickering,  3  id.  415  ;  Clark 
V.  Morse,  10  N.  H.  239  ;  Reed  v.  Jew- 
ett,  5  Greenl.  96  ;  Cutter  v.  Copeland,  18 
Maine,  127  ;  Comstock  v.  Rayford,  12  S. 
&  M.  369  ;  Field  v.  Simco,  2  Eug.  [Ark.] 
269  ;  Ervvin  v.  Bank  of  Kentucky,  5  Louis. 
Ann.  1  ;  Collins  v.  Pellerin,  id.  99  ; 
Bryant  v.  Kelton,  1  Tex.  415.  —  It  must 
be  confessed,  however,  tliat  there  is  a  host 
of  decisions  in  support  of  the  opposite 
principle,  and  that  it  still  lias  the  sanction 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


443 


The  delivery  may  be  symbolical,  or  of  a  part  for  the. 
whole ;  (vv)  and  a  delivery  of  the  key,  the  property  being 
locked  up,  is  so  far  a  delivery  of  the  goods,  that  it  will  sup- 
port an  action  of  trespass  against  a  subsequent  purchaser  who 
gets  possession  of  them,  (w)  Marking  timber  on  a  wharf,  or 
goods  in  a  warehouse,  operates  as  a  delivery ;  goods  bought  in 
a  shop,  weighed  or  measured,  and  separated,  and  left  by  the 
owner  until  called  for,  are  sufficiently  delivered  ;  (x)  and  horses 
bought  at  livery,  and  remaining  at  livery  with  the  seller  at  his 
request,  are  said  to  be  delivered  to  the  buyer,  (i/)  This  last 
case  has  been  questioned,  but  it  seems  to  come  under  the  gen- 
eral analogy,  for  the  purchaser  incurs  at  once  a  liability  for  their 
keeping.  It  is  true,  however,  that  later  cases  apply  a  stricter 
rule  than  formerly  to  constructive  delivery  ;  and  the  presumption 
of  delivery  is  not  to  be  favored,  because  it  deprives  the  seller  of 
his  lien  without  payment,  (z)    But  if  goods  are  sent,  even  under 


of  very  sound,  respectable,  and  learned 
courts.  The  doctrine  was  tirst  laid  down 
in  Twyne's  case,  3  Coke,  87,  and  has 
since  been  recognized  or  adopted  in  the 
following  among  other  cases.  Edwards 
V.  Harben,  2  T.  R.  587  ;  Paget  v.  Per- 
chard,  1  Esp.  205  ;  "WordcU  v.  Smith,  1 
Camp.  332;  Kecd  v.  Wilmott,  5  M.  &  P. 
5.53  ;  Hamilton  v.  llussell,  1  Cranch,309; 
Alexander  v.  Dencalc,  2  Munf.  341  ; 
Robertson  v.  Ewell,  3  id.  1  ;  Kennedy  r. 
Koss,  2  Rep.  Con.  Ct.  125  ;  Hudnal  r. 
Wilder,  4  McCord,  294 ;  Ragan  v.  Ken- 
nedy, 1  Overt.  91  ;  Brumniel  v.  Stockton, 
3  Dana,  134  ;  Laughlin  v.  Ferguson,  6  id. 
117  ;  Jarvis  v.  Davis,  14  B.  Monroe,  533  ; 
Young  V.  McClure,  2  W.  &  S.  147; 
Brady  v.  Haines,  18  Penn.  113;  Bowman 
V.  Herring,  4  Harring.  458  ;  McBride  v. 
McClelland,  6  W.  &  S.  94  ;  Thornton  i-. 
Davenport,  1  Scammon,  29G  ;  Chuniar  v. 
Wood,  1  Halst.  1 55 ;  Patton  v.  Smith,  5 
Conn.  Rep.  195;  Weeks  v.  Wcad,  2 
Aikens,  64;  Beattie  v.  Robin,  2  Venn. 
181  ;  Earnsworth  ik  Siiepard,  6  id.  521  ; 
Wilson  i\  Hooper,  12  id.  6.53 ;  Hutchins 
r.  Gilchrist,  23  id.  82  ;  Gibson  r.  Love,  4 
Flor.  217  ;  Sturtevant  v.  Ballard,  9  Johns. 
337. —  But  in  those  courts  where  the  doc- 
trine of  Twyne's  case  lias  i)cen  received 
with  favor,  the  rule  has  not  been  applied 
to  sales  on  execution,  whidi  are  in  tlieir 
nature  public  and  notorious.  Simerson 
V.  Branch  Bank,  12  Ala.  205  ;  Garland  r. 


Chambers,  11  Sra.  &  Marsh.  337  ;  Foster 
V.  Pugb,  12  id.  416  ;  Abney  r.  Kingsland, 
10  Ala.  355. 

(vv)  See  Chamberlain  v.  Farr,  23  Verm. 
265;  Brewer  v.  Salisbury,  9  Barb.  511  ; 
Evans  v.  Harris,  19  id.  416. 

(iv)  Chappel  V.  Marvin,  2  Aikens,  79. 
{x)  So  selecting  and  marking  sheep, 
then  in  the  possession  of  one  who  was  re- 
quested by  the  vendee  to  retain  possession 
of  them  for  him,  is  a  sufficient  delivery. 
Barney  v.  Brown,  2  Verm.  374. 

(/y)  Elmore  v.  Stone,  1  Taunt.  458. 
But  see  the  subsequent  case  of  Carter  r. 
Toussaint,  5  B.  &  Aid.  855.  In  that  case 
a  horse  was  sold  by  verbal  contract,  but 
no  time  was  fixed  for  the  payment  of  the 
price.  The  horse  was  to  remain  with  the 
vendors  for  twent}-  days  without  any 
charge  to  the  vendee.  At  the  expiration 
of  that  time,  the  horse  was  sent  to  grass, 
l)y  the  direction  of  the  vendee,  and  by  his 
desire  entered  as  the  horse  of  one  of  the 
vendors.  Upon  these  facts  the  courts 
licld  that  there  was  no  acceptance  of  the 
horse  by  the  vendee  within  the  statute  of 
frauds.  Altiiough  Elmore  v.  Stone  has 
been  much  doubted,  it  seems  not  to  luive 
been  ex])rossly  overruled.  Sec  Smith  i'. 
Surnum,  9  B."  &  C.  570,  Baijloj,  .J. 

[z)  Dole  V.  Stimpson,  21  Pick.  384. 
See  also.  Tempest  v.  Fitzgerald,  3  B.  & 
Aid.  680  ;  Baldey  v.  Parker,  2  B.  &  C.  37. 
But  these  cases  arose  under  the  statute  of 

[467] 


I 


444*  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

a  contract  of  sale,  to  be  applied  by  the  receiver  (who  was  to  be 
the  buyer,)  to  a  particular  purpose,  (as  *to  take  up  certain  bills 
of  exchange,)  to  which  purpose  they  were  not  and  could  not  be 
applied,  the  sender  does  not  lose  his  property  in  them  by  the 
delivery,  but  may  recover  them  back,  (a)  And  if  property  be 
awarded  to  one  by  arbitrators,  at  a  certain  price,  the  tender  of 
the  price  does  not  pass  the  property,  unless  the  other  party  ac- 
cept the  price,  (b) 

It  is  sometimes  a  question  of  interest  what  is  the  duty  of  the 
seller  as  to  delivery  of  the  articles  sold,  and  as  to  keeping  them 
until  delivery ;  and  also  what  is  the  duty  of  the  vendee  as  to 
receiving  them.  Usage  determines  this  in  a  considerable  de- 
gree ;  but  from  the  general  usage  and  the  adjudications  some 
rules  may  be  deduced. 

If  no  time  be  appointed  for  delivery,  or  for  payment,  these 
acts  must  be  done  within  a  reasonable  time;  and  if  neither 
party  does  any  thing  within  that  period,  the  contract  is  deemed 
to  be  dissolved,  (c)  If  the  goods  are  to  be  delivered  when  re- 
quested, the  purchaser  may  sue  for  non-delivery  without  proving 
a  request,  provided  the  seller  have  incapacitated  himself  from 
delivering  them,  as  by  resale  or  the  like,  (d)  but  in  general  a 
request  must  be  made  before  the  seller  can  be  sued  for  non- 
delivery, (dd)  And  if  the  vendee,  either  by  the  express  terms 
of  the  contract  or  from  its  nature,  is  to  designate  the  manner  or 
place  of  delivery,  he  must  do  this  before  he  can  maintain  his 
action,  (e)  If  a  day  be  fixed  either  for  delivery  or  payment, 
the  party  has  the  whole  of  it ;  and  if  any  one  of  several  days, 
the  whole  of  all  of  them.     It  is  said  he  must  endeavor  to  do 

frauds,  and  turned  upon  what  was  a  suffi-  tliat  which  is  actually  transferred  by  the 

cient   acceptance,   within    that    act.      But  contract  of  the  owner  tiirougii  the  medium 

there  may  be,  perhaps,  a  delicery  good  at  of  his  agent." 

common   law,  which  would  not   amount  (c)    Langfort   v.   Tiler,   1    Salk.     113. 

to   an  acceptance   within  the    statute    of  And  see  Lanyon  v.    Toogood,  13  M.  «Sb 

frauds.           '  W.  27  ;  Fletcher  v.  C^ole,  23  Verm.  114. 

(a)  Moore  v.  Barthop,   1    B.  &  C.  .5;  (d)  Bowdell  v.  Parsons,  10  East,  359; 

Thompson  v.  Tiles,  2  B.  &  C.  422  ;  Giles  Amory  v.  Brodrick,  5  B.  &  Aid.  712. 

V.  Perkins,  9  East,  12  ;  Bent  v.  Fuller,  5  (dd)  Bach  v.  Owen,  5  T.  R.  409.     See 

T.  R.  294 ;  Zinck  v.  Walker,  2  W.  Bl.  Radford  v.  Smith,  3  M.  &  W.  254 ;  Ben- 

1154;  Parke  I'.  Eliason,  1  East,  544.  ners  v.  Howard,  1   Taylor,  149. — As  to 

(6)  Hunter  y.  Rice,  15  East,  100.    And  a  demand   by   a  servant,   see  Squier  v. 

Lord  Ellenhorough  said  :  "  There  is  a  dif-  Hunt,  3  Price,  68. 

ference  between  property  awarded  to  be  (e)  See  West  v.  Newton,  1  Duer,  277  ; 

transferred  by  the  owner  to  another,  and  Armitage  v.  Insole,  14  Q.  B.  728. 

[468  ] 


CH.  lY.] 


SALE  OF  PERSONAL  PROPERTY. 


*445 


the  needful  act  at  a  convenient  hour  before  midnight;  early 
enough,  for  instance,  for  the  other  party  to  count  the  money,  or 
examine  the  goods,  and  give  a  receipt;  but  this  very  general 
rule  does  not  seem  anywhere  defined.  If  on  a  certain  day,  at 
a  certain  place,  then  it  must  be  done  at  a  convenient  time  be- 
fore sunset,  because  the  presence  of  the  other  party  is  necessary 
*and  the  law  does  not  require  him  to  be  there  through  the 
twenty-four  hours,  (ee) 

The  seller  is  to  keep  the  thing  sold  until  the  time  for  delivery, 
with  ordinary  care,  and  is  liable  for  the  want  of  that  care,  or  of 
good  faith  ;  but  if  he  does  so  keep  it,  he  is  not  liable  for  its 
loss,  (ef)  unless  it  perish  through  a  defect  against  which  he  has 
warranted.  If  the  parties  are  distant  from  each  other,  the  seller 
must  follow  the  directions  of  the  buyer  as  to  the  way  of  send- 
ing the  thing  sold  to  him,  and  then  a  loss  in  the  transportation 
will  fall  on  the  buyer,  (/)  unless  attributable  to  the  negligence 
of  the  seller;  if  the  seller  disregards  such  orders,  the  loss  in 
transportation  falls  on  him,  though  it  do  not  happen  through 
his  neglect.  If  the  directions  be  general,  as  "  by  a  carrier," 
without  naming  any  one,  usual  and  proper  precautions  must  be 
taken,  and  will  protect  the  seller,  (g-)     And  it  is  a  part  of  his 


(ee)  Sec  Startup  r.  McDonald,  2  M.  & 
Gr.  395. 

(<?/")  Where  A  bought  of  B  three  hun- 
dred han-els  of  resin  "  to  be  delivered 
when  called  for  within  a  week,"  and  paid 
for  the  same,  and  within  a  week  B  manu- 
factured more  than  that  rpiantity,  which  ho 
had  ready  for  delivery,  but  did  not  set 
apart  any  specific  quantity  for  A,  the  resin 
being  destroyed  by  fire  after  the  end  of 
the  week,  it  was  held  that  A  was  bound  to 
call  during  the  week  ;  tliat  B  was  not 
bound  to  set  apart  for  A  any  sj)ccitic  three 
hundred  barrels,  and  that  A  having  failed 
to  perform  his  part  of  the  contract,  could 
not  recover  against  B  cither  upon  the  con- 
tract to  deliver  or  for  money  had  and  re- 
ceived, to  recover  the  purcha-^c-money 
Eaid.  Willard  v.  Perkins,  1  Busbee's 
awR.  (N.  C.)  25.3. 

(/)  Vale  V.  Baylc,  Cowp.  294  ;  Gassett 
V.  Godfrey,  t>  Fost!  415  ;  Orcutt  r.  Nelson, 
1  Grav,  536  ;  Jones  v.  Sims,  6  Port.  I'JS. 
In  Godfrey  r.  Fur/.o,  3  P.  Wms.  186,  and 
in  Vale  v.  Bayle,  supra,  Lord  Chief  Jus- 

VOL.  I.  40 


tice  El/re  is  said  to  liave  held,  "  That 
though  a  trader  in  the  country  does  not 
appoint  a  carrier,  yet  if  the  goods  be  em- 
bezzled he  shall  be  liable,  because  he 
leaves  it  in  the  brea.st  of  the  person  to 
whom  he  gives  the  order  to  send  them  by 
whom  he  jjleases."  The  carrier  is  gener- 
ally considered  the  agent  of  the  buyer,  and 
not  of  the  seller.  Dutton  r.  Solomonson, 
3  B.  &  P.  584  ;  Anderson  i-.  Hodgson,  5 
Price,  630.  As  soon  therefore,  as  the 
goods  are  in  the  due  and  regular  course  of 
conveyance,  they  are  at  the  risk  of  the 
])urchaser,  and  not  before.  Ullock  i\ 
Rcdelin,  Dan.  &  Lloj'd,  6;  and  see  Bull 
V.  Robison,  28  E.  L.  &  E.  586. 

{'/)  The  vendor,  in  delivering  goods  to 
a  carrier,  must  exercise  due  care  and  dili- 
gence, so  as  to  provide  the  consignee  with 
a  remedy  over  against  the  carrier.  See 
Buckman  r.  Levi,  3  Camp.  414;  Clarke 
V.  Hutchins,  14  East,  475  ;  Alexander  v. 
Gardner,  1  Bin-.  N.  C.  671  ;  Dawes  v. 
Peck,  8  T.  R.  3;30. 

[469] 


446* 


THE    LAW    OF   CONTRACTS. 


[book  III. 


duty  to  give  such  notice  of  the  sending  them  by  ship  or  other- 
wise as  will  enable  the  buyer  to  insure  or  take  other  precau- 
tions, (h)  If  the  contract  be  to  deliver  the  thing  ordered  at  the 
residence  or  place  of  business  of  the  buyer,  the  seller  is  liable, 
although  such  delivery  becomes  impossible,  unless  it  becomes  so 
through  the  act  of  the  buyer,  (i)  If  the  seller  refuse  to  deliver 
it  at  a  *time  and  place  agreed  on,  and  it  perish  afterwards  with- 
out his  fault,  he  is  liable  for  it.  But  if  be  be  ready,  and  the 
vendee  wrongfully  refuse  or  neglect  to  receive  it,  the  seller  is 
not  liable,  unless  the  thing  perishes  through  his  gross  and  wan- 
ton negligence.  And  if  the  vendee  unreasonably  neglect  or 
refuse  to  comply  with  conditions  precedent  to  delivery,  or  to 
receive  the  goods  on  delivery,  the  seller  may,  after  due  delay 
and  proper  precautions,  resell  them,  (and  it  seems  to  be  a  com- 
mon usage  to  sell  them  at  auction,)  and  hold  the  buyer  respon- 
sible for  any  deficit  in  the  price,  (j)  If  the  seller  sell  on  credit, 
the  goods  are  to  be  delivered  without  payment ;  but  if  the  buyer 
become  insolvent  before  the  time  of  delivery,  the  seller  may 
demand  security,  and  refuse  to  deliver  the  goods  without  it.  {k) 
If  no  place  of  delivery  be  specially  expressed  in  the  contract,  the 
store,  shop,  farm,  or  warehouse,  where  the  article  is  sold,  made, 
grown,  or  deposited,  is  in  general  the  place  of  delivery.  (/)     If 


(h)  Cotliay  V.  Tute,  3  Camp.  129  ; 
Brown  oti  Sales,  §  526 ;  2  Kent's  Com. 
500.  —  If  it  has  been  the  usage  between 
the  parties,  in  former  dealings,  for  the 
vendor  to  insure,  or  if  he  receive  specific 
instructions  to  insure  in  any  particular 
case,  lie  is  bound  to  insure.  Id.  ;  London 
Law  Mag.  vol.  4,  p.  359.  And  see 
Smith  ?•.  Lascelles,  2  T.  R.  189. 

((■)  Hay  ward  v.  Scougall,  2  Camp.  56, 
and  note;  Atkinson  v.  Ritcliic,  10  East, 
530;  Uc  Medeiors  v.  Hill,  5  C.  &  P.  182. 
It  was  here  held  that  where  a  shipowner, 
knowing  that  a  port  is  blockaded,  enters 
into  a  contract  with  a  merchant  for  the 
delivery  of  a  cargo  there,  if  he  afterwards 
refuses  to  go,  he  is  liable  to  an  action  for 
the  breach  of  the  contract ;  but  whether 
the  damages  are  to  be  nominal  or  other- 
wise must  depend  upon  the  opinion  of  the 
iury,  as  to  whether,  if  the  vessel  had  gone 
to  the  place,  she  would  have  been  able  to 
get  in.  —  So  it  is  no  defence  to  a  breach  of 


a  contract  to  deliver  certain  goods  at  a 
certain  time,  that  such  goods  could  not  ho 
had  in  the  market  at  that  time.  Gilpins 
V.  Consequa,  Pet.  C.  C.  85 ;  Youqua  v. 
Nixon,  id.  221. 

( /)  Maclean  i\  Dunn,  4  Bing.  722; 
Mertens  ?».  Adcock,  4  Esp.  251  ;  Girard 
V.  Taggart,  5  S.  &  R.  19  ;  Sands  v.  Tay- 
lor, 5  Johns.  395.  • 

(k)  Tooke  i'.  HoUingworth,  5  T.  II. 
215.  And  sec  Bloxam  r.  Sanders,  4  B. 
&  C.  948  ;  Hanson  v.  Meyer,  6  East,  614. 
And  if  the  seller  has  despatched  the  goods 
to  the  buyer,  and  he  becomes  insolvent, 
the  seller  has  a  right,  by  virtne  of  his 
original  ownership,  to  stop  the  goods  if 
yet  in  transitu.  Mason  i\  Lickbarrovv,  1 
H.  Bl.  357  ;  Ellis  v.  Hunt,  3  T.  R.  464. 

(/)  2  Kent's  Com.  505  ;  LobdcU  v.  Hop- 
kins, 5  Cow.  516;  Goodwin  v.  Holbrook, 
4  Wend.  380  ;  Barr  v.  Myers,  3  Watts  & 
Scrg.  295.  If,  however,  a  particular 
place  be  appointed  by  the  contract,  the 


i 


[470] 


CII.  IV.]  SALE  OF  PERSONAL  PROPERTY.  *447 

expressly  deliverable  to  the  vendee,  but  no  place  is  named,  it 
may  be  delivered  to  him  where  he  is,  or  at  his  house,  or  at  his 
place  of  business,  except  so  far  as  this  option  of  the  seller  is 
controlled  by  the  nature  of  the  article.  For  if  the  purchaser 
bought  a  load  of  cotton  to  be  worked  in  his  mill,  it  cannot, 
under  an  agreement  of  delivery,  be  delivered  at  his  distant 
dwelling-house;  nor  should  a  load  of  hay  for  his  stable,  or  a 
cooking  range  for  his  kitchen,  be  delivered  at  his  store  on  the 
wharf.  Some  cases  distinguish  between  the  duty  of  delivery 
arising  from  a  contract  of  sale,  and  a  contract  to  deliver  goods 
in  payment  of  a  precedent  debt.  In  the  first  case  *the  buyer 
must  take  them  where  they  are,  and  in  the  latter  the  owner 
must  deliver  them  at  such  place  as  shall  be  reasonable  from  the 
nature  of  the  case,  or  shall  be  pointed  out  by  the  party  receiv- 
ing them,  (in)  But  in  the  latter  case,  if  the  contract  be  merely 
that  the  creditor  "  may  have  them,"  with  no  words  or  acts  im- 
plying that  they  were  to  be  carried  to  him,  it  should  be  enough 
if  they  are  ready  for  him  when  he  comes  for  them.  There 
seems  to  be  also  a  distinction  between  the  case  of  very  cumber- 
some goods  and  those  more  easily  portable  ;  and  the  seller  is 
held  more  strictly  to  the  duty  of  transporting  the  latter,  and  fen- 
dering  them  in  specie.  («) 

In  general,  if  any  thing  be  ordered  of  a  mechanic  or  manu- 
facturer, the  maker  may  deliver  it  where  he  makes  it,  unless  he 
have  a  shop  or  depository  where  his  manufactured  articles  are 
usually  taken  for  sale  or  delivery,  in  which  case  such  place 
may  be  the  place  of  delivery. 

The  vendee  is  bound  to  receive  and  pay  for  the  thing  sold  at 
the  time  and  place  expressed  or  implied  in  the  contract  of  sale, 
and  to  pay  all  reasonable  charges  for  keeping  it  after  sale  and 


floods  imist   he  (k'livcrcd  there  hcforc  an  wliero,  he  wouUl  receive  tlic  trooils ;  and  if 

netioii   will  lie    for    their    |)riee.      Savage  this   he   not  done,  tiie  mere  faet  that  the 

Man.   Co.  v.  Arinstron;:,  I'J  Maine,  147  ;  dchtor  had  tiic  artieies  at  his  own  ihvell- 

Iloward  v.  Miner,  20  id.  .'!25.  in;jC-housc    at    that    time    is    no    defenee. 

(m)  liean   r.   Simpson,  IG    Maine,  49.  And   .sec   Bixhy  r.   Whitney,    5    (jlreeid. 

In  this  ea.se  it  wa.s  lidd  tliat  if  no  jihiec  ho  192. 

apjioinied  in  tlie  eontraet  fur  the  delivery         («)  Stone    v.    Gilliam,    1    Show.    149; 

of  sjieeitie  artieies,  it   is   tlie  dnty   of  the  Cnrrier  r.  Cnmer,  2  Kew  llamp.  75  ;  2 

dchtor    to    a.seertain    from    tlie    ereditor  Kent's  Com.  508. 

[471] 


448*  THE   LAW   OF   CONTRACTS.  [BOOK   III. 

before  delivery,  (o)  And  if  he  refuse  so  to  take  or  pay  for  the 
goods  sold,  he  will  be  liable  in  an  action  for  the  price,  or  in  a 
special  action  for  damages,  unless  he  can  show  incapacity  to 
contract,  or  sufficient  error,  duress,  or  fraud. 

When  payment  of  a  debt  is  to  be  made  by  some  specific 
article,  it  is  not  quite  settled  where  the  article  is  to  be  *deliv- 
ered ;  whether  by  the  payor  at  his  own  residence  to  the  payee 
who  must  come  for  it,  or  to  the  payee  at  his  residence  or  place 
of  business,  whither  the  payor  must  carry  it.  It  might  seem 
from  some  statements  that  local  usages  affect  or  decide  this 
question  in  some  cases.  And  possibly  the  distinction  between 
bulky  and  portable  articles  might  be  carried  so  far  as  to  lead  to 
the  conclusion  that  one  who  has  thus  to  deliver  an  article  easily 
carried,  as  a  watch  or  a  book,  might  be  bound  to  take  it  to  the 
payee.  Bat  we  consider  the  law  in  general  to  be,  that  it  is 
enongh  if  the  payor  delivers  the  article  at  his  own  residence 
or  shop.  And  if  he  there  tenders  it  to  the  payee,  and  it  be  in 
all  respects  the  article  he  should  have  tendered,  and  the  payee 
refuse  or  neglect  to  receive  it,  with  no  valid  objection  grounded 
on  the  article  itself,  or  on  a  stipulation  in  the  contract,  then  the 
payor  is  no  further  responsible  for  what  may  happen  to  it.  If 
it  were,  for  instance,  a  carriage,  and  he  had  tendered  it  as  it 
stood  in  his  barn  or  warehouse,  he  would  have  no  right  —  cer- 
tainly none  without  sufficient  notice  to  the  payee,  —  to  roll  it 
out  into  the  street,  and  there  let  it  perish.  For  this  would  be  a 
wanton  injury.  But  if  it  way  in  the  street  when  he  tendered  it, 
and  he  said,  I  offer  it  to  you  as  your  carriage,  and  I  shall  have 
no  more  to  do  with  it,  he  would  not  be  bound  to  take  any  fur- 
ther care  of  it. 

Bat  questions  of  this  kind  generally  arise  in  the  defence  to 

(o)  In  Co'.e  V.  Kerr,  20   Venn.   21,   it  tained  hj'  \vei^lii;ig,  liut  without  any  e.r- 

w'iis  held  that  thoi-L'  is  no  implied  contract  press  contract  as  to  who  .shonid  1)C  at  the 

npon  the  sale  of  personal  property  that  expense  of  sacking: ;  the  phiintills  sacked 

the  vendee  shall  i>ay  tlic  vendor  for  any  the  wool  in  sacks  fnrnished  by  tlie  defend- 

services,  in  relation  to  the  property,  ren-  ants,   and  then  caused  it  to  bo  weighed 

d2rQcl- prerious  to  the  conii)letion  of  the  sale  and  ship])ed  to  the  defendants  ;  and  it  was 

by  delivery.      In  this  case  the  plaintiffs  hekl,  tliat  as  the  sackinji;  preceded  the  deliv- 

.  sold  to  the  defendants  the  wool  lyin^^  nn-  cry  of  the  wool,  the  law  wonld  not  impli/ 

sacked   in   three   rooms,   to   be  paid   for  a  contract  on  the  i)art  of  the  defendants  to 

upon  delivery,  the  quantity  to  be  ascer-  pay  the  plaintiffs  for  sacking. 

[472] 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*449 


actions  founded  upon  such  contracts ;  and  we  shall  again  con- 
sider the  subject  of  contracts  for  the  delivery  of  specific  articles, 
in  our  second  volume,  under  the  head  of  Defences. 


SECTION    VI. 

CONDITIOiSrAL   SALES. 

In  every  sale,  unless  otherwise  expressed,  there  is  an  implied 
condition  that  the  price  shall  be  paid,  before  the  buyer  has  a 
right  to  possession  ;  and  this  is  a  condition  precedent,  (p)  But 
it  seems  that  in  an  action  for  non-delivery  the  buyer  *need  only 
aver  that  he  was  ready  and  willing  to  receive  and  pay  for  them, 
and  a  refusal  to  deliver,  without  averring  an  actual  tender,  (q) 
But  where  the  right  to  receive  payment  before  delivery  is 
waived  by  the  seller  and  immediate  possession  given  to  the 
purchaser,  and  yet  by  express  agreement  the  title  is  to  remain 
in  the  seller  until  the  payment  of  the  price  upon  a  fixed  day, 
such  payment  is  strictly  a  condition  precedent,  and  until  per- 
formance   the    right    of    property    is    not    vested    in    the    pur- 


(/>)  Sec  Noy's  Miixinis,  p.  88,  wlicrc  it 
is  said  :  "  If  I  sell  my  liorse  for  money,  I 
may  keep  liim  mitil  I  am  paid."  Sec 
also,  Ilindc  v.  AVliiteiiotise,  7  East,  571  ; 
Cornwall  r.  IIai<;lit,  8  IJarh.  328.  —  This 
implied  eonditioii  that  the  priec  shall  be 
paid  before  delivery  is  said  to  give  tlie 
vendor  a /;>/!  on  the  artielc  sold  until  the 
payment.  —  Rut  although  the  vendee  may 
not  have  a  ri;iht  of  imsscssinn  in  tlie  article 
bouirht  iVitil  the  price  is  paid,  yet  the  njrlit 
of  projH'iti/  ])asses  Inj  tin'  fxin/itin  ;  and  if 
the  property  is  lost  while  yet  in  the  i)OS- 
scssion  of  the  vendor,  without  liis  fault, 
the  loss  will  fall  on  the  purchaser.  Willis 
<•.  Willis,  G  Dana,  41) ;  Win-:  r.  Clark,  24 
Maine,  :WC, ;  Pleasants  v.  Tendleton,  6 
Hand.  473.  !Sec  also,  ante,  p.  *441,  n. 
(o),  rt  sftj. 

('/)  Waterhouse  v.  Skinner,  2  li.  &  P. 
447 ;  Kawson  r.  Johnson,  1  East,  203. 
The  case  of  Morton  r.  Lamb,  7  T.  H.  12.'5, 
is  not  inconsistent  with  the  doctrine  laid 
down  in  the  te.xt,  as  it  is  explained  by  the 
suhsecjuent  case  of  Rawsou  r.  Johnson,  1 

40* 


East,  203.  And  there  arc  many  cases 
where  rpodiness  to  perform  is  ec[uivalent*to 
performance.  Tims  in»  the  case  of  West 
V.  Emmons,  5  Johns.  170,  A  covenanted  to 
convey  by  a  r^ood  and  sutlicient  deed  a 
certain  lot  of  land  to  15,  on  or  before  a  cer- 
tain day,  and  B  covenanted  to  reconvey 
the  same  to  A  by  a  mortpifre,  at  the  same 
time,  as  security,  and  also  to  execute  a 
bond  for  tlie  consideration  money;  and  B 
afterwards  brouf^ht  his  action  of  covenant 
a'^ainst  A,  and  in  Ins  declaration  averred 
that  he  was,  at  the  time,  and  always 
had  been,  ready  to  execute  the  mortgage 
and  bond,  &c.  It  was  held,  that  the 
covenants  were  mutual  and  dependent ; 
that  the  avcrnn-nt  of  readiness  to  per- 
form by  the  plaintiff  was  sutlicient ;  and 
that,  from  the  nature  of  the  covenant,  he 
was  not  bound  to  seal  and  tender  the 
mortgage  before  A  iiad  conveyed  the  bind 
to  him,  or  had  ottered  a  conveyance.  Sec 
also  Miller  r.  Drake,  1  Caines,  4.') ;  Peet- 
crs  r.  Opie,  2  Wms.  Saund.  350,  and 
n.  3. 

[473] 


449- 


THE   LAW   OF   CONTRACTS. 


[book  ni. 


chaser,  {qq)  And  generally,  wherever  in  a  contract  of  sale,  it 
]«  stated  that  some  precise  fact  is  to  be  done  by  either  party, 
this  may  amount  to  a  condition,  though  not  so  expressed.  As, 
where,  in  a  contract  for  sale  of  goods,  the  words  are  "  to  be  de- 
livered on  or  before"  a  certain  day,  this  is  a  condition  prece- 
dent, and  if  they  are  not  delivered  on  or  before  that  day,  (r)  the 
purchaser  is  not  bound  to  take  the  goods.  So  if  the  goods  are 
to  be  delivered  "  on  request,"  the  buyer  must  allege  and  prove 
a  request,  this  being  a  condition  precedent  to  his  acquiring  a 
complete  right,  [s)     But  if  the  seller  has  incapacitated  himself 


{qq)  Porter  v.  Pettengill,  12  New 
Hamp.  299 ;  Sargent  v.  Gile,  8  New 
Hani]).  325;  Gaml)ling  v.  Rcail,  1  Meigs, 
281 ;  Bigelow  v.  Huntley,  8  Verm.  1.51  ; 
Barrett  v.  rritchard,  2  Pick.  512  ;  Aver  v. 
Bartlett,  9  Pick.  15G  ;  Tibbetts  r.  Towle, 
3  Fairf.  341  ;  Bennett  v.  Sims,  Rice,  421  ; 
Smith  V.  Lvnes,  1  Seldeii,  41  ;  Herring  v. 
Hopjjoek,  3  Duer,  20  ;  Brewster  v.  Baker, 
20  Barb.  364;  Parris  v.  Roberts,  12 
Ire.  L.  208;  Smith  v.  Foster,  18  Verm. 
182;  Buckmaster  v.  Smith,  22  id.  203; 
Root  V.  Lord,  23  id.  568 ;  Aubin  v. 
Bradley,  24  id.  55 ;  Buson  v.  Dough- 
erty, 11  Humph.  50.  In  most  of  these 
cases  the  question  whether  the  property 
had  passed  arose  between  the  parties 
themselves  or  between  the  vendor  and  at- 
taching creditors  of  the  conditional  vendee, 
ana  the  weight  of  authority  is  as  above. 
And  in  Sargent  u.-Gile,  8  N.  H.  325,  such 
a,  conditional  sale  was  held  to  leave  the 
right  of  pi'operty  in  the  vendor  against 
subsecpient  bona  jide  purchasers  from  the 
conditional  vendee,  on  the  evident  gi-ound 
that  the  vendee  had  no  power  to  transfer 
any  right  not  his  own.  The  same  view 
appears  to  be  taken  by  Washinqton,  J.,  in 
Cophinil  v.  Bosquet,  4  Wash.  C.  C.  594. 
But  ILtggcrty  i\  Palmer,  6  Johns.  Ch. 
•437  ;  Keeler  v.  Field,  1  Paige,  315  ;  and 
Smith  V.  Lynes,  1  Sclden,  41,  seem  to 
have  settled  it  for  New  York  law  that 
such  bonafida  purchaser  without  notice  of 
the  conditional  sale  holds  the  property. 
And  in  Martin  v.  Mathiot,  14  Serg.  &  R. 
214;  Rose  r.  Story,  1  Barr,  190,  it  is  de- 
cided that  although  under  a  conditional 
sale  the  property  does  not  ])ass  to  the 
■vendee,  as  between  the  parties,  yet  that 
such  condition  is  fraudulent  and  void  as  to 
creditors  of  the  vendee  who  may  seize  and 
hold  the  propertv  upon  execution.     And 

[474  ] 


at  all  events  if  an  additional  bill  of  ?hle  be 
given  and  the  conditional  vendee  be  thus 
invested  with  all  the  indicia  of  ownership, 
the  vendor  is  estopped  to  set  up  the  con- 
dition against  a  purchaser  in  good  faith, 
for  valuable  consideration.  Davis  r. 
Bradley,  24  Verm.  55.  And  whenever  a 
vendor  in  a  conditional  sale  claims  the 
property  against  the  creditors  of  the  ven- 
dee, the  burden  of  proof  is  upon  him  to 
show  the  condition  and  [that  it  has  not 
been  complied  with.  Leighton  v.  Stevens, 
19  Maine,  154.  —  It  has  been  decided  that 
such  conditional  sales  are  not  in  elfect  chat- 
tel mortgages,  and  therefore  void,  because 
not  recorded.  Buson  v.  Dougherty,  11 
Humph.  50.  And  where  upon  a  sale  and 
delivery  it  was  agreed  that  the  vendor 
should  retain  a  lien  upon  the  property  un- 
til the  price  was  paid,  it  was  held  that 
this  agreement  of  the  parties  created  a 
valid  lien  in  the  vendor  against  the  ven- 
dee, and  purchasers  from  him,  and  tWat 
such  lien  was  not  within  the  purview  of 
the  statute  requiring  mortgages  of  chattels 
to  be  recorded.  Saw3'cr  v.  Fisher,  32 
Maine,  28. 

(r)  Startup  v.  McDonald,  2  M.  &  Gr. 
395.  And  the  delivery  must  have  been 
made  at  a  reasonable  time  on  that  day,  or 
the  vendee  is  not  bound.     Id. 

(.s)  Bach  r.  Owen,  5  T.  R.  409,  as  ex- 
plained in  Radford  v.  Smith,  3  JNl.  &  W. 
258,  where  Lord  Abiih/er  said  :  "  In  Bach 
V.  Owen,  the  plaintiff  was  not  entitled  to 
the  horse  until  he  ottered  his  own  and  de- 
manded the  other.  Where  by  the  ex/n-ess 
terms  of  the  contract  a  rci(uest  must  pre- 
cede delivery,  or  where  that  is  to  be  im- 
plied from  "t!ie  nature  of  the  contract,  a 
request  must  be  alleged  and  proved,  but 
not  otherwise." 


CH.  IV.] 


SALE  OF  PEKSOXAL  PROPERTY. 


*450 


*from  delivering  by  reselling,  or  otherwise,  no  request  is  neces- 
sary. (/) 

There  is  another  class  of  sales  on  condition,  often  called 
"  contracts  of  sale  or  return."  In  these  the  property  in  the 
goods  passes  to  the  purchaser,  subject  to  an  option  in  hitn  to 
return  them  within  a  fixed  time,  or  a  reasonable  time  ;  and  if  he 
fails  to  exercise  this  option  by  so  returning  them,  the  sale  be- 
comes absolute,  and  the  price  of  the  goods  may  be  recovered  in 
an  action  for  goods  sold  and  delivered,  (u) 

In  sales  at  auction  there  are  generally  conditions  of  sale  ; 
and  where  these  are  distinctly  made  known  to  the  buyer,  they 
are  of  course  binding  on  him,  and  the  auctioneer  or  the  owner 
of  the  goods  is  bound  on  his  part.  The  question  whether  they 
were  sufficiently  made  known  to  the  buyer  would  be  one  rather 
of  fact  than  of  law ;  as  where  a  horse  is  sold  by  warranty,  and 
it  is  the  uniform  custom  of  the  auctioneer  to  limit  all  objections 
to  the  space  of  twenty-four  hours  from  the  sale.  If  these  terms 
are  a  part  of  all  the  advertisements  of  the  auctioneer,  and  were* 
announced  by  him  at  the  beginning  of  the  sale,  and  the  pur- 
chaser had  come  in  after  such  announcement,  and  no  direct 
proof  of  his  knowledge  of  this  limitation  was  offered,  evidence 
would  probably  be  admitted  that  he  took  a  paper  containing 
such    advertisement,  and   of  any  other  facts   tending  to  show 


(t)  Ranay  v.  Alexander,  Yelverton,  76, 
and  Metcaif's  note;  Amory  »".  Urodrick, 
5  B.  &  Aid.  712;  Nowcomb  r.  Brackott, 
16  Mass.  101  ;  Webster  v.  Coffin,  14  Mass. 
190.     See  also  (inte,  note  (J),  j).  44.5. 

{u)  Moss  r.  8\veet,  3  E.  L.  &  E.  ]lep. 
311,  (overnilin;;  Iley  i'.  Frankenstein,  8 
Se.  N.  11.  839,  and  Lyons  r.  Barnes,  2 
Stark.  39)  ;  Beverley  v.  Tilt  Lincoln  Gas 
Lio;lit  and  Coke  Co.  6  Ad.  &  El.  829 ; 
Bayley  r.  Gouldsniitli,  Peake,  .50;  Dear- 
born r.  Tnrni'r,  16  Maine,  17.  See  .Mel- 
drura  V.  Snow,  9  Pick.  441  ;  Blood  v. 
Palmer,  2  Fairf.  414  ;  ICldridge  c.  Benson, 
7  Ciisli.  48.5  ;  Neate  r.  Ball,  2  East,  116. 
And  what  is  a  reasonable  time  within 
which  a  contract  is  to  be  performed,  or  an 
act  to  be  done,  i<,  in  the  absence  of  any 
contract  between  the  parties,  u  (|ucstioii  of 
law  for  the  court,  to  be  determined  by  a 
view  of  all  the  circumstances  of  the  par- 


ticular ease.  See  Attwood  v.  Clark,  2 
Greenl.  249;  Hill  r.  Ilobart,  16  Maine, 
164;  Murry  v.  Smith,  1  Hawks,  41.  But 
see  Cocker  v.  Franklin  llcinp  and  Flax 
JIan.  Co.  3  Smnner,  530;  Ellis  r.  Thomp- 
son, 3  M.  &  W.  445.  —  Parol  evidence  of 
the  convei-sations  of  the  ])arties  is  admis- 
sible to  show  the  circumstances  under 
which  the  contract  wa.s  made,  and  what 
the  i)arties  thou^'-lit  a  rrtisniKilile  time. 
Cocker  r.  Franklin  Hemp  and  Flax  Man. 
Co.  .s'»/»vj.  And  where  A  delivers  jirop- 
erty  to  B,  on  condition  that  if  damaged, 
while  in  B's  possession,  B  shall  keep  it 
and  pay  for  it,  this  is  a  conditional  sale; 
and  if  the  property  is  so  damajred  the  sale 
becftmes  ab.>;olutc,  ami  as-jninjisit  for  <roods 
sold  and  dcliveri'd  will  lie.  Bianchi  c. 
Xa.-h,  1  M.  &  W.  545.  See  also  Perkins 
r.  DouLrlass,  20  Maine,  317. 

[475] 


451* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


such  knowledge  *and  the  jury  would  be  permitted  to  infer  the 
knowledge  from  them  if  they  deemed  them  sufficient. 

If  it  be  provided  in  the  conditions  of  sale  that  no  error  or 
misstatement  shall  avoid  the  sale,  but  that  there  shall  be  a  pro- 
portionate allowance  on  the  purchase-money,  this  condition 
will  not,  in  general,  save  a  sale,  where  the  error  is  of  a  material 
and  substantial  nature,  although  not  fraudulent,  {v)  The  test 
of  this  question,  as  matter  of  law,  seems  to  be,  whether  the 
error  or  misstatement  is  so  far  material  and  substantial  that  it 
may  be  reasonably  supposed  the  buyer  would  not  have  made 
the  purchase  had  he  not  been  so  misled.  And  such  misstate- 
ment will  also  avoid  a  sale  if  no  reasonably  accurate  estimate 
can  be  made  of  the  compensation  which  should  be  allowed 
therefor,  (iv)  Any  misstatement,  made  fraudulently,  and  capa- 
ble of  having  any  effect  on  the  sale,  will  avoid  it.  Nor  will 
the  conditions  of  sale  be  binding  against  a  purchaser,  if  so 
framed  as  to  give  the  seller  advantages  which  the  buyer  could 
•not  readily  apprehend  or  understand  without  legal  knowledge 
or  advice  ;  for  a  buyer  is  discharged  from  a  purchase  made 
under  "  catching  conditions."  (x) 


{v)  TIic  Duke  of  Noifolk  v.  Worthy,  1 
Camp.  340;  Flight  v.  Booth,  1  Bhig.  N. 
C.  370;  Leach  v.  Mullctt,  3  C.  &  P.  115. 
See  also,  Robinson  r.  Miisgvove,  2  M.  & 
Rob.  92,  8  C.  &  P.  469,  where  it  was  held 
that  a  condition  of  sale,  "  that  if  any  mis- 
take shall  bq  made  In  the  description  of 
the  premises,  or  any  other  error  whatever 
shall  appear  in  the  particulars  of  the  prop- 
erty, such  mistake  or  error  shall  not  annul 
the"  sale,  but  a  compensation  shall  be 
o-iven,  &c.,"  does  not  apply  where  any 
substantial  part  of  the  property  turns  out 
to  have  no  existence,  or  cannot  be  found ; 
or  where  the  vendor  has  mala  fide  given  a 
very  exaggerated  description  of  the  prop- 
erty. The  purchaser  may  in  such  a  case 
rescind  the  contract  in  ioto.  See  also, 
ante,  p.  416,  n.  [v],  et  seq. 

[w)  See  Sherwood  v.  Robins,  1  ]\I.  & 
Mai.  194,  3  C.  &  P.  339,  where  it  was  de- 
termined that  a  condition  in  articles  of 
sale,  "  that  any  error  in  the  particulars 
shall  not  vitiate  the  sale,  but  a  compensa- 
tion shall  be  made,"  applies  only  to  cases 
where  the  circumstances  afford  a  principle 

[476] 


by  wliich  this  compensation  can  be  esti- 
mated. Therefore  on  the  sale  of  a  rever- 
sion expectant  on  the  death  of  A.  B.  with- 
oid  ddldren,  an  error  in  the  statement  of 
A.  B.'s  age  does  not  come  within  the  con- 
dition, (as  it  would  if  the  reversion  were 
simply  expectant  on  A.  B.'s  death,)  be- 
cause it  aU'ccts  the  probability  of  the  other 
contingency,  which  is  not  a  subject  of  cal- 
culation ;  and  the  purchaser  is  entitled  to 
rescind  the  contract. 

(x)  Adams  ;•.  Lambert,  2  Jur.  1078  ; 
Dykes  v.  Blake,  4  Bing.  N.  C.  463.  In 
the  case  of  Dobell  v.  Hutchinson,  3  Ad.  & 
El.  3.5.5,  on  a  sale  of  a  leasehold  interest  of 
lands,  described  in  the  particulars  as  held 
for  a  term  of  twenty-three  years,  at  a  rent 
of  £55,  and  as  comprising  a  yard,  one  of 
the  conditions  was,  that  if  any  mistake 
should  be  made  in  the  description  of  the 
property,  or  any  other  error  whatever 
should  appear  in  the  particulars  of  the 
estate,  such  mistake  or  error  should  not 
annul  or  vitiate  the  sale,  but  a  comiiensa- 
tion  should  be  made,  to  be  settled  liy  ai-- 
bitration  ;  and  the  yard  was  not  in  fact 


en.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*452 


♦SECTION    VII. 


MORTGAGES    OF   CHATTELS. 


Sales  of  chattels,  by  way  of  mortgage,  constitute  a  very  im- 
portant, and,  in  recent  times,  a  very  frequent  class  of  sales  on 
condition,  (xx)  There  has  not  been  as  yet  much  adjudication 
in  respect  to  them.     Whether  a  mortgage  of  personalty  has  at 


comprehended  in  the  property  held  for  (he 
term  at  £55,  but  was  held  i)y  the  vendor 
from  year  to  year,  at  an  additional  rent ; 
and  sucli  yard  was  essential  to  the  enjoy- 
ment of  the  property  leased  for  the  twenty- 
three  years.  It  was  hrlcl,  thou<:h  it  did  not 
appear  that  the  vendor  knew  of  tlie  defect, 
that  this  defect  avoided  tlie  sale,  and  was 
not  a  mistake  to  he  compensated  for  under 
the  above  condition,  althouirh  after  the 
day  named  in  the  conditions  for  complet- 
ing the  purchase,  and  before  action  brought 
by  the  vendee,  the  vendor  procured  a 
lease  of  the  yard  for  the  term  to  the 
vendee,  and  offered  it  to  him.  —  But 
where  the  particulars  of  sale  described  the 
property  as  a  family  residence,  with  the 
rijrht  of  a  pew  in  the  centre  aisle  of  the 
parisli  church,  and  the  title  of  the  jiew 
was  defective,  as  the  use  of  the  pew  was 
not  essential  to  the  enjoyment  of  tiie  jirop- 
crty,  this  error  gave  a  ri;^ht  to  compensa- 
tion only.     Cooper  v. ,  2  Jur.  29. 

And  where  there  was  a  written  afrreement 
to  sell  and  assii^n  "the  unexpired  term  of 
eii/lit  i/f(irs'  lease  and  frood-will  "  of  a  ])ub- 
lic-ii(uisc  ;  it  was  /i<li/  that  the  ]iurchaser 
could  not  refuse  to  perform  the  ajxrccmcnt 
on  the  ground  that  wlien  it  was  entered  into 
there  were  only  seven  years  and  seven 
months  of  the  term  unex])ired.  Lord  IClUn- 
boroiif/li  said  :  "The  parties  caimot  l)e  sii])- 
poseil  to  iiavc  meant  that  there  was  tiic 
exact  term  of  eiglit  years  uncx))ired,  nei- 
ther more  nor  less  by  a  singh;  (lay.  The 
agrccn\ent  must  therefore  receive  a  R-a- 
sonalile  construction  ;  and  it  secius  not 
unreasonable  that  the  ])eri(id  mentioned  in 
the  agreement  shoidd  be  calculated  from 
the  last  preccdiui:'  day  when  the  rent  was 
payable,  and  includinir  therefore  the  cur- 
rent half  year.  Any  fraud  or  material  mis- 
descriplion,  thou;;ii  unintentional,  would 
vacate  the  airreement,  i)Ut  the  defendant 


might  have  had  substantially  what  he 
agreed  to  purchase."  Belworth  v.  Has- 
sell,  4  Camp.  140. 

(xx)  See  4  Kent's  Com.  138,  where  the 
distinction  between  a  pledge  and  a  mort- 
gage of  personal  property  is  fully  set  forth. 
A  mortgage  of  goods  is  a  conveyance  of 
title  npon  condition,  and  if  the  condition  is 
not  performed  such  title  becomes  absolute 
in  law,  l)ut  equiti/  will,  it  seems,  interfere 
to  compel  a  redemption.  Story  on  Bailm. 
!j  287;  Flanders  v.  Barstow,"  18  Maine, 
357;  2  Story,  Eq.  Jur.  ^  1031.  As  to 
what  intruments  will  be  construed  as  a 
mortgage,  and  what  as  merely  a  pledge, 
see  Lan<:don  v.  Buel,  9  Wend."  80  ;  Wood 
V.  Dudley,  8  Verm.  435  ;  Barrow  i-.  Pax- 
ton,  5  Johns.  258 ;  Coty  r.  Barnes,  20 
Verm.  78 ;  ^Vliitaker  >■.  Sumner,  20  Pick. 
399,  and  post,  Bailments,  under  the  head 
of  Pledge.  A  mortgage  of  personal  prop- 
erty, like  that  of  real  estate,  may  consist 
of  an  absolute  bill  of  sale,  and  a  separate 
instrument  of  defeasance,  given  at  the 
same  time.  Brown  v.  Bemcnt,  8  Johns. 
96  ;  IIoi)kins  r.  Thompson,  2  Porter,  433; 
AViiislow  )-.  Tart.ox,  18  Maine,  132; 
Williams  r.  Koser,  7  Missouri,  556 ;  Barnes 
V.  Ilolcomb,  12  S.  &  M.  306.  Knight  r. 
Nichols,  34  Me.  208.  Ami  although  the 
bill  of  sale  is  absolute,  and  no  wrilinr/  of 
defeasance  is  given  back,  parol  testimony 
is  still  admissible  to  jirove  that  it  was  in- 
tended only  as  collateral  security.  Heed 
V.  Jewett,  5  GiTcid.  96  ;  Carter  /•.  Burris, 
10  S.  &  M.  527  ;  Freenuui  v.  Baldwin,  13 
Ala.  246.  But  see  Whitakcr  r.  Sumner, 
20  Pick.  399;  Montany  r.  IJf.ck,  10  Mis- 
souri, .006.  It  is  well  settled  that  mort- 
ga;_'c's  of  personal  pro]ierty  need  not  be 
under  seal.  Despatch  Line  i\  Bellamy 
Co.  12  New  Hamp.  205  ;  Milton  r.  Mosher, 
7  Mete.  244;  Florv  r.  Dennv,  11  E.  L. 
&  E.  584. 

[477] 


453* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


common  law  any  equity  of  redemption  does  not  seem  to  be 
positively  determined ;  but  it  is  believed  that  equity  would 
interfere  to  prevent  gross  injustice,  (y)  This  subject  *is  regu- 
lated in  many  of  the  States  by  statute,  and,  in  general,  record 
is  required  if  possession  of  the  goods  be  retained  by  the  mort- 
gagor ;  and  an  equity  of  redemption  is  allowed,  (z)  It  seems 
that  a  mortgage  of  personal  property,  where  the  mortgagor  re- 
tains possession,  is  not  valid  against  a  subsequent  bond  fide 
purchaser  or  attaching  creditor,  if  there  be  neither  record  of  the 
mortgage,  nor  actual  knowledge  of  it  on  the  part  of  the  pur- 
chaser or  creditor,  {a) 

It  has  been  frequently  attempted  to  make  a  mortgage  of  per- 
sonalty extend  over  chattels  not  then  owned  by  the  mortgagor. 


(y)  In  Hinman  v.  Judson,  13  Barb.  629, 
which  was  an  action  brought  by  the  mort- 
gagee of  personal  property,  against  a 
party  claiming  under  the  mortgagor,  for 
conversion  of  the  property,  it  was  held  that 
a  mortgagor  of  chattels  may  redeem  them 
after  condition  broken,  and  before  they  are 
sold  on  the  part  of  the  mortgagee,  and 
that  in  the  present  action  the  defendant 
might  exercise  this  right  by  reducing  the 
damages  to  be  recovered,  to  the  amount 
actually  due  upon  the  mortgage  debt. 

(z)  Thus,  in  Massachusetts,  an  equity  of 
redemption  of  sixty  days  is  allowed  the 
mortgagor  after  condition  broken,  or  after 
notice  of  an  intention  to  foreclose  given  by 
the  mortgagee  for  such  breacli.  Mass. 
Rev.  Stat.  c.  107,  ^  40;  Stat,  of  1843,  c. 
72.  Nearly  similar  provisions  exist  in 
Maine.     Maine  Rev.  Stat.  e.  125,  §  30. 

(a)  As  between  mortgagor cmd moi-tgar/ee, 
a  mortgage  of  personal  property  is  valid, 
although  there  be  no  delivery  of  the  prop- 
erty, and  no  ])Ossession  by  the  mortgagee, 
or  record  of  the  mortgage  on  the  registry. 
Smith  V.  Moore,  1 1  New  Hamp.  55 ; 
Winsor  r.  McLellan,  2  Story,  492  ;  Hall 
V.  Snowhill,  2  Green,  8.  But  as  to  sub- 
sequent puirhasers,  and  attaching  creditors 
of  the  mortgagor,  without  notice  of  the 
existence  of  the  mortgage,  by  statute  in 
several  States,  the  mortgagee  must  either 
have  and  retain  possession  of  the  mort- 
gaged property,  or  the  mortgage  must  be 
recorded  in  the  town  where  the  mortgagor 
resided  at  the  time  of  its  execution. 
Smith  V.  Moore,  supra.  —  And  where 
such  provision  is  made  by  statute,  the  re- 
cording is  equivalent  to  actual  delivery. 

[478] 


Forbes  v.  Parker,  16  Pick.  462.  But  in 
New  York  it  has  been  decided  that  the 
record  of  a  mortgage  does  not  rebut  the 
presumjjtion  of  fraud  occasioned  by  the 
mortgagor's  retention  of  the  propeity,  such 
record  being  merely  an  additional  require- 
ment. Otis  V.  Sill,  8  Barb.  102.  The 
necessity  of  delivery  to  the  mortgagee  or 
of  a  record,  is  wholly  the  effect  of  statu- 
tory provisions,  and  at  common  law  a 
mortgage  of  personal  property  might  be 
valid,  in  the  absence  of  fraud,  even  against 
subsequent  hunajide  purchasers  and  attach- 
ing creditors,  although  the  mortgagor  re- 
mained in  possession,  and  although  no 
record  of  the  mortgage  existed.  Hol- 
brook  V.  Baker,  5  Greenl.-  3U9  ;  Bissell  v. 
Hopkins,  3  Cow.  166  ;  Biicklin  v.  Thomp- 
son, 1  J.  J.  Marsh.  223;  Letcher  v.  Nor- 
ton, 4  Scam.  575  ;  Ash  v.  Savage,  5  New 
Hamp.  545;  Homes  vj  Crane,  2  Pick. 
610.  Such  continued  .possession  l)y  the 
mortgagor-may  be  sufficient  evidence  of 
fraud,  but  it  would  not  alone  be,  in  most 
States,  conclusive.  Id.  In  Vermont  it 
would  be.  Russell. I'.  Fillmore,  15  Verm. 
130.  Although  iha  mortgagor  remain  in' 
possession,  and  \vithout  any  record  of  the 
mortgage,  it  seems  that  a  subsequent  pur- 
chaser, or  attaching  creditor,  hacing  actual 
notice  of  the  existence  of  the  mortgages, 
acquires  no  rights  against  the  mortgagee, 
the  latter  being  guilty  of  no  fraud.  San- 
ger V.  Eastwood,  19  Wend.  514  ;  Stowe  v. 
Meserve,  13  New  Hamp.  46;  Gregorys. 
Thomas,  20  Wend.  17.  Tlie  contrary  has 
been  held  in  Massachusetts.  Travis  r. 
Bishop,  13  Met.  304.  And  see  Denny  i'. 
Lincoln,  id.  200. 


CH.  IV.] 


SALE  OF  PERSONAL  PROPERTY. 


*454 


but  to  be  subsequently  purchased.  As  where  a  shopkeeper 
makes  a  mortgage  of  "  all  the  goods  in  his  store,  and  of  all 
which  shall  be  bought  to  replace  or  renew  the  present  stock." 
Such  a  mortgage  might  operate  against  the  'mortgagor  some- 
what by  way  of  estoppel ;  but  it  has  been  decided  that  it  is  not 
valid  against  a  third  party,  (b)  And,  where  the  mortgagee  per- 
mitted the  mortgagor  to  remain  in  possession,  for  the  purpose 
and  with  the  power  of  selling  the  goods,  such  mortgage, 
although  recorded,  would  not  avoid  the  sale,  even  if  it  did  not 
express  in  any  way  such  purpose  and  power,  if  they  could  be 
inferred  from  the  circumstances.  Supposing  the  whole  transac- 
tion to  be  bond  fide,  the  mortgagor  would  be  considered  as  sell- 
ing the  goods  as  the  agent  of  the  mortgagee,  and  the  proceeds 
would  belong  to  him  ;  and,  if  sold  on  credit,  the  debt  could  not 
be  reached  by  an  attaching  creditor  through  the  trustee  pro- 
cess, (c) 


(b)  Jones  V.  Richardson,  10  Met.  481 .  In 
this  case  the  property  niortfrafrod  was  thus 
described,  namely:  "  Tlie  whole  stock  in 
trade  of  said  A.,  as  well  as  cacli  and  every 
article  of  inerdiandise  wliich  the  said  A. 
(the  mortgagor)  bouglit  of  one  T.  W.,  as 
every  other  article  constituting  said  A.'s 
stock  in  trade,  in  the  sliape  tlie  same  is 
and  mai/  bpr.ome,  in  the  usual  course  of  the 
said   A.'s  business  as  a  trader."     It  was 
admitted  that  the  goods  in  question,  wliich 
had  been  attached   by  a  creditor  of  the 
mortgagor,  were  at  the  time  of  the  atlncli- 
ment  the  stock  in  trade  of  the  said  A.,  but 
that   only  a  i)art  of  them  was  owned  by 
him,  until  after  he  made  said  mortgage. 
The  court,  after  a  critical  review  of  the 
autliorities  bearing  upon   tills  point,  held 
that  tlic  mortgagee  could  not,  as  against 
third  persons,  acrpiire  under  this  mortgage 
any  valid  title  to  tliose  goods  purchased  by 
the  mortgagor  after  the  giving  of  the  mort- 
gage.   The  same  view  is  supported  by  the 
late  case  of  Lunn  v.  Tiiomton,   1  C.  B. 
379 ;  Khines   v.  Phelps,  3    Oilman,   4.').'3 ; 
Barnard  v.  Eaton,  2  Cush.  294  ;  Pctiis  r. 
Kellogg,  7  Cush.  471  ;   Winslow  v.  Mer- 
chants' Ins.  Co.  4  Met.  300  ;  Otis  v.  Sill,  8 
Barb.  102.     The  case  of  Abbott  v.  Good- 
win,  20   Maine,  408.  which   may  seem  to 
conflict   witli   the   rule  laid  down  in   the 
text,  docs  not  seem  to  us  correct,  and  is 


apparently  inconsistent  with  the  views  of 
the  same  court  as  expressed  in  the  later 
case  of  Goodenow  v.  Dunn,  21  Maine,  9G. 
(<•)  Unless  there  is  some  stijiulation  in 
the  mortgage,  allowing  the  mortgagor  to 
remain  in  possession  of  the  gpods,  the 
right  of  immediate  possession  vests,  to- 
gether with  the  property,  in  tlicm,  in  the 
mortgagee ;  and  he  may  have  an  action 
against  any  one  taking  them  from  the 
mortgagor.  Pickard  v.  Low,  1.")  Maine, 
48;  Brackctt  v.  Bullard,  12  :\Iet.  308; 
Coty  V.  Banies,  20  Verm.  78.  And  parol 
proof  is  not  admissible  to  show  an  agree- 
ment that  the  mortgagor  should  remain  in 
posscss^ion  ;  the  mortgage  itself  lieing  silent 
upon  the  sultject.  Case  v.  Winship,  4 
Blackf.  423.  And  altliougli  the  mortgage 
contains  an  express  stipulation  that  the 
mortgagor  shall  remain  in  ])ossession,  un- 
til default  of  payment,  and  with  a  power 
to  sell  for  the  jiayment  of  the  mortgage 
debt,  the  mortgagee  may  nevertlieless  sus- 
tain trover  against  an  oflicer  attaching  the 
goods  as  the  pro])erty  of  the  mortgagor. 
Melody  v.  Chandler,  .3  Fairf.  282 ;  Forbes 
r.  Parker,  16  Pick.  462  ;  Welcli  v.  Whittc- 
more,  25  Maine,  86  ;  Ferguson  r.  Thoir.as, 
26  Maine,  499.  In  the  late  case  of  Bar- 
nard V.  Eaton,  2  Cush.  294,  where  a  mort- 
gage was  made  of  all  the  goods  tlicn  in 
the  mortgagor's  store,  and  of  all  goods, 

[479] 


455^ 


THE   LAW   OF   CONTRACTS. 


[book   III. 


&c.,  which  mi_<;hthc  afterwards  siilistituted 
by  the  mortga<;or  ibr  those  whicli  he  then 
possessed,  —  the  mortgage  providing  that 
until  default  the  mortgagor  might  use  and 
make  sales  of  the  mortgaged  projicrty, 
other  goods,  &c.,  of  equal  value  being 
substituted  therefor,  — it  was  held,  that  the 
mortgage  could  not  apjdy  to  goods  not  in 
existence,  or  not  capable  of  being  identi- 
fied, at  the  time  it  was  made,  or  to  goods 
intended  to  be  afterwards  *purchased  to 
replace  those  which  should  be  sold.  It 
was  also  held  in  the  same  case  that  an 
agreement,  in  a  mortgage  of  the  stock  of 
goods  then  in  the  mortgagor's  store,  that, 
until  default,  the  mortgagor  might  retain 
possession  of  the  property,  and  make  sales 
thereof  in  the  usual  course  of  his  trade, 
other  goods  of  equal  value  being  substitut- 
ed by  him  for  those  sold,  will  not  author- 

[480] 


izc  the  mortgagor  to  put  the  mortgaged 
property  hito  a  partnership,  as  his  share  of 
the  capital.  In  New  York,  unless  the 
mortgage  is  filed  in  pursuance  of  the 
statute,  the  mortgagor  cannot  remain  in 
possession  for  the  purpose  of  selling  the 
goods.  Camp  v.  Camp,  2  Hill,  628. 
See  also,  Collins  v.  Myers,  16  Ohio,  547. 
And  in  Edgcll  v.  Hart,  13  Barb.  380, 
where  a  mortgage,  although  recorded,  was 
intended  to  cover  property  afterwards  to  lie 
procured  by  the  mortgagor,  and  in  it  the 
mortgagee  gave  him  the  right  to  sell  the 
goods  for  ready  pay,  without  being  under 
any  obligation  to  apply  the  proceeds  to 
the  discharge, of  the  mortgage,  or  any 
other  debt,  it  was  held  that  the  mortgage 
was  void  as  calculated  to  delay,  hinder, 
and  defraud  other  creditors  of  the  mortga- 


CH.  v.]  TVARRAXTY.  *457 


CHAPTER  V. 


WARRANTY. 


The  warranties  which  accompany  a  sale  of  chattels  are  of 
two  kinds  in  respect  to  their  subject-matter;  they  are  a  war- 
ranty of  title  and  a  warranty  of  quality.  They  are  also  of  two 
kinds  in  respect  to  their  form,  as  they  may  be  express  or  im- 
plied. 

Blackstone  says,  "  a  purchaser  of  goods  and  chattels  may 
have  a  satisfaction  from  the  seller,  if  he  sells  them  as  his  own, 
and  the  title  proves  deficient,  without  any  express  warranty  for 
that  purpose."  {d)  But  he  also  says  afterwards,  "  in  contracts 
for  sales,  it  is  constantly  understood,  that  the  seller  undertakes 
that  the  commodity  he  sells  is  his  own,  and  if  it  proves  other- 
wise, an  action  on  the  case  lies  against  him  to  exact  damages 
for  the  deceit."  (e)  From  this  it  might  be  inferred  that  the 
action  is  grounded  on  the  deceit,  and  therefore  does  not  lie 
where  there  is  no  deceit,  as  where  one  sells  as  his  own  that 
which  is  not  his  own,  but  which  he  verily  believes  to  be  his  own. 
But  although  the  English  authorities  are  somewhat  uncertain 
and  conflicting,  we  consider  that  a  rule  is  recognized  in  the  Eng- 
lish courts,  or  in  some  of  them,  whichj  although  not  distinctly 
and  positively  asserted,  nor  so  well  supported  by  direct  decision 
as  the  American  rule,  may  yet  be  regarded  as  essentially  the 
same.  (/)    And  in  this  *country«it  seems  to  be  now  well  settled, 


(cl)  2  Bl.  Com.  451.  Exch.  500.     There  a  person  having  hired 

(e)  3  Bl.  Com.  166,  Wendoirs  ed.  and  a  harp,  pledged  it  with  a  p.iwnlnokcr  for  his 

note.  own  debt,  without  authority  from  the  true 

(/)  Medina  v.  Stoughton,  1  Salk.  210;  owner.     The  harp  not  being  redeemed  at 

Crosse  v.  Gardner,  Carth.  90.     This  sub-  the  stipulated  time,  the  pawnbrolccr  sold 

jcct  was  much  diseusscd  in  England,  in.  it  at  auction  at  liis  u.'^ual  quarterly  sales. 

the  late  case  of  Morlcy  r.  Atteuborough,  3  The  harp  was  adyertiscd  .ns  forfeited  prop- 

voL.  I.  41  [481] 


458' 


THE   LAW   OF   CONTRACTS. 


[book   III. 


by  adjudications  in  many  of  our  States,  that  the  seller  of  a 
chattel,  (g-)  (if  in  possession,)  warrants  by  implication  that  it  is 
his  own,  and  is  *answerable   to  the  purchaser  if  it  be  taken 


erty,  pledged  with  the  broker.  The  pur- 
chaser at  the  auction  bought,  not  knowing 
that  the  harp  did  not  belong  to  tlie  party 
pledging  it ;  but  after  the  sale,  being  sued 
by  the  former  owner,  he  gave  up  the  liarp, 
and  paid  the  costs.  He  then  conimeucecl 
an  action  against  the  pawnbroker  for  the 
price  at  whicli  he  bid  off  the  harp,  on  a 
warranty  of  title.  It  was  agreed  that 
there  was  no  express  warranty;  and  the 
court  held  tliat  nvdcr  these  circumstances 
there  was  no  implied  warranty  of  an  abso- 
lute and  perfect  title,  on  the  part  of  tlie 
pawnbroker,  but  only  that  the  subject  of 
the  sale  was  a  pledge,  and  irredeemable, 
and  tliat  tlie  pawnbroker  was  not  cogni- 
zant of  any  defect  of  title  to  it.  This  case 
has  sometimes  been  cited  as  deciding  the 
general  principle  that  in  all  cases  of  sales 
of  personal  property  there  is  no  implied 
warranty  of  title,  and  it  has  been  thought 
to  be  opposed  to  the  American  doctrine  on 
this  subject ;  and  some  of  the  language  of 
Parke,  B.,  who  delivered  the  judgment, 
may  go  somewhat  to  sustain  such  a  view. 
But  we  conceive  that  the  case,  as  an 
aiithoriti/,  cannot  be  pressed  farther  than 
the  actual  facts  and  circun^tances  war- 
rant ;  and  in  this  light  tlie  decision  itself 
seems  not  in  conflict,  l)Ut  in  harmony 
with  the  American  cases.  For  a  sale  by 
a  pawnbroker,  under  tlie  circumstances 
detailed  in  that  case,  may  be  analogous  to 
that  of  a  sale  of  a  chattel  by  a  sheriff  on 
execution.  And  here  iill  authorities,  Eng- 
lish and  American,  agree  that  the  sheriff 
does  not  impliedly  warrant  the  title  of  the 
execution  debtor  to  the  property  seized  on 
execution ;  but  only  that  he  does  not 
know  that  he  had  not  title  to  the  goods. 
Peto  V.  Blades,  5  Taunt.  657  ;  Hensly  v. 
Baker,  10  Missouri,  157  ;  Chapman  i\ 
Speller,  19  Law  J.  Rep.  (N.  S.)  Q.  B. 
239  ;  Yates  v.  Bond,  2  McCord,  382 ; 
Bashore  v.  Whisler,  3  Watts,  490 ;  Stone  v. 
Pointer,  5  Munf  287  ;  Morgan  v.  Fencher, 
1  Blackf.  10 ;  Davis  v.  Hunt,  2  Bailey,  412  ; 
Friedly  v.  Scheetz,  9  S.  &  R.  156  ;  Rod- 
gers  V.  Smith,  2  Carter,  (Ind.)  526  ;  Bos- 
tick  V.  Winton,  1  Sueed,  525.  So  a  sale 
by  an  executor,  administrator,  or  other 
trustees,  does  not  raise  an  implied  war- 
ranty of  title ;  such  person  does  not  sell 
the  property  as  his  own ;  he  docs  not  offer 
it  as  his  own  ;  and  unless  guilty  of  fraud, 

[482] 


he  would  not  be  responsible,  if  the  title 
failed.  Ricks  v.  Dillahuntv,  8  Porter, 
134  ;  Forsythe  v.  Ellis,  4  J.  J.  Marsh. 
298;  Bingham  v.  Maxcy,  15  111.  295; 
Prescott  V.  Holmes,  7  Rich.  Equity,  9. 
On  consideration  of  all  the  cases  on  this 
subject,  we  must  believe  the  language  of 
Blackstone  to  be  correct,  that  if  a  person 
in  possession  of  a  chattel  sells  it,  as  his 
own,  there  is  an  implied  warranty  of  title. 
That  the  case  of  Morley  v.  Attenborongh 
should  not  be  considered  as  an  authority, 
further  than  the  actual  facts  of  the  case 
M'arrant,  see  the  late  case  of  Simms  i.'. 
Marryatt,  7  E.  L.  &  E.  R.  330,  where, 
however,  there  was  an  express  warranty. 
Lord  Campbell  said :  "  It  does  not  seem 
necessary  to  inquire  what  is  tlie  law 
as  to  implied  warranty  of  title  on  the 
sales  of  personal  property,  ivhich  is  not 
quite  satisfactorily  settled.  According  to 
Morley  v.  Attenborongh,  if  a  pawnbroker 
sells  unredeemed  pledges  he  docs  not  war- 
rant the  title  of  the  pawner,  but  merely 
undertakes  that  the  time  for  redeeming  the 
pledges  has  expired,  and  he  sells  only 
such  right  as  belonged  to  the  pawner. 
Beyond  that  the  decision  does  not  go,  but 
a  great  many  questions  arc  suggested  in 
the  judgment  which  still  remain  open. 
Although  the  maxim  of  caveat  emptor  ap- 
plies generally  to  the  purchaser  -of  per- 
sonal property,  there  may  be  cases  where 
it  would  be  difficult  to  apjily  the  rule."  It 
seems  always  to  have  been  held  that  if  a 
vendor  sells,  knowing  he  has  no  title,  and 
conceals  that  fact,  he  is  liable  as  for  a  fraud. 
Early  v.  Garret,  9  B.  &  C.  932 ;  Sprig- 
well  V.  Allen,  Aleyn,  91.  And  in  Robin- 
son V.  Anderton,  Peake,  94,  a  purchaser 
of  fixtures,  the  title  of  which  was  not  in 
the  vendor,  was  allowed  to  recover  their 
price  as  money  had  and  received,  although 
the  vendor  was  not  guilty  of  fraud,  and 
bona  fide  believed  himself  the  owner. 
•  (y)  This  must  be  confined  to  sales  of 
chattels.  In  the  sale  of  real  estate  by  deed 
there  are  no  implied  warranties.  The 
words  "  containing  so  many  acres,"  &c., 
do  not  import  a  covenant  of  quantity. 
Huntley  v.  Waddell,  12  Ircd.  32  ;  Ric^kets 
V.  Dickens,  1  Murph.  343  ;  Powell  v. 
Lyles,  1  id.  348 ;  Roswel  i;.  Vaughan,  Cro. 
Jac.  196. 


CH.  v.] 


WARRANTY. 


*459 


from  him  by  one  who  has  a  better  title  than  the  seller,  whether 
the  seller  knew  the  defect  of  his  title  or  not,  and  whether  he 
did  or  did  not  make  a  distinct  affirmation  of  his  title.  But  if 
the  seller  is  out  of  possession,  and  no  affirmation  of  title  is 
made,  then  it  may  be  said  that  the  purchaser  buys  at  his  peril. 
And  this  we  think  the  established  rule  of  law  in  this  coun- 
try. (//) 

*A11  warranties,  however  expressed,  are  open  to  such  construc- 


(/()  No   case  more  directly  asserts  the 
implied  warranty  of  title,  in  all  cases  of 
sales  of  personal  property,  than  that  of 
Defreeze    v.    Truinpcr,    1     Johns.    274, 
(1806).     There  the  purchaser  of  ahorse 
hrought  a  suit  aLTninst  the  vendor  to  re- 
cover damaj,^es ;  the  title  having  been  in 
a  third  person,  and  not  in  the  vendor  at 
the  time  of  the  sale.    The  principal  olijec- 
tion  at  the  trial  was,  that  tlie  evidence  did 
not  j)rove  any  warranty,  nor  any  fraud  in 
the  sale.     But  the  court  said  :    "  We  are 
of  opinion  that  an  express  warranty  was 
not  re(iuisite,  for  it  is  a  general  rule  that 
the  law  will  imply  a  warranty  of  title  upon 
the  sale  of  a  chattel."     And  this  doctrine 
lias  been  steadily  adhered  to  and  uniformly 
followed  by  the  courts  of  New  York.    See 
Ileermance  v.  Vernov,  6  Johns.  .'>,  (1810)  ; 
Vibbard  r.  Johnson,  19  Johns.  77,  (1821 ) ; 
vSwett  i\  Colgate,  20  Johns.   lOG,   (1822); 
Keid  V.  Barber,  3   Cowcn,  272,  (1824); 
McCoy  I'.  Artcher,  .3  Barb.  323,  (1848). 
In  this  case  a  very  able  judgment  was  pro- 
nounced, in  favor  of  the  doctrine  of  the 
text,   namely,  that   in   sales  of  personal 
property,  in  the  possession  of  tlie  vendor, 
there  is  an  imidied  warranty  of  title,  for 
the   possession  is  equivalent  to  an  affirma- 
tion  of  title.     But   it  is    held   otherwise 
where  the  ]iroperty  sold  is  then  in  the  pos- 
session of  a  third  person,  and  the  vendor 
made  no  aflirmation  or  assertion  of  owner- 
ship.    And  tlie  same  was  again  distinctly 
aflirmed  in  the  still  later  case  of  l-xliclv  v. 
Crim,    10   Barb.   44.").     Dresser  v.  Ains- 
worth,  9  Barb.  619,  is   a  valuable  case 
upon  this  point.     It  is  there  liehl  that  this 
implied  warranty  of  title  not  only  means 
that  the  vendor  has  a  right  to  sell,  but  it 
extends   to  a  ])rior  lien  or   incninbrancc. 
The  essence  of  the  contract  is,  that  the 
vendor  has  a  perfect  title   to  the   goods 
sold;   that  the   same   are   unincumbered, 
and  that  the  jnirchaser  will  acquire  by  the 
sale  a  title  free  and  clear,  and  shall  enjoy 
the    possession    without    disturbance    by 


means  of  any  thing  done  or  suffered  by 
the  vendor.     So  in  Coolidge  v.  Brigham, 
1   Met.   b^\,  Wilde,  J.,  says:    "In   con- 
tracts of  sales  a  warranty  of  title  is  im- 
plied.    The  vendor  is  always  understood 
to  affirm  that  the  property  he  sells  is  his 
own.   And  this  implied  affirmation  renders 
iiim  responsible,  if  the  title   proves  defec- 
tive.    This  responsibility  the  vendor  in- 
curs,  although  the  sale  may  be  made  in 
good  faith,  and  in  ignorance  of  the  defect  of 
his  title.    This  rule  of  law  is  well  estahlished, 
and  does  not  trench  unreasonably  upon  the 
rule  of  the  common  law,  caveat  emptor." 
The  general  doctrine  of  the  text  is  also  di- 
rectly asserted  or  recognized  in  Bucknam 
f.  Goddard,  21  Pick.  70  ;  Hale  v.  Smith,  6 
Greenl.  420;  Butler  v.  Tufts,  13  Maine, 
302 ;    Thompson    v.    Towle,   32    Maine, 
87  ;    Huntingdon   v.   Hall-,  36  I^Ie.  .'JOI  ; 
Kobinson    c.    Bice,    20    Missouri,    229 ; 
Ijines  V.  Smith,  4  Florida,  47  ;  Lackey  r. 
Stouder,  2  Carter,  (Ind.)  376;  Gookin  v. 
Graham,  .5  Huiii])h.  480  ;  Trigg  v.  l''aris, 
.5  Humph.  343  ;  Dorsev  v.  Jackman,  1  S. 
&  K.  42  ;  Eldridgc  r.  Wadleigh,  3  Fairf. 
372  ;  Cozzins  i-.  Whitaker,  3  Stew.  &  Port. 
322  ;  Mockbee  r.  Gardner,  2  HaiT.  &  Gill, 
176  ;  Pavner.  Kodden,  4  Bibb,  304  ;  Inge 
V.  Bond",  3   Hawks,   103,    Tmilor,   C.  J.; 
Cliism  V.  Woods,  Hardin,  531  ;  Scott  v. 
Scott,  2  A.  K.  Marsh.  217  ;  Cliancellor  r. 
Wi-gins,  4  B.  Mon.  201  ;  Bovd  v.  JJopst,  2 
Dair.  91  ;  Colcock  v.    Good",  3   I^lcCord, 
513;  Picks  r.  Dillahunty,  8   Porter,    134. 
See  also  a  well  reasoned  article  in  12  Am. 
Jur.  311  ;  2  Kent's  Com.  478.     We  have 
been  tlius  full  in  the  citation  of  authorities 
upon  this  ajiparently  well  settled  point, 
because  there  is  still  some  conflict  of  opin- 
ion upon  it,   and  because  the  American 
doctrine  has  been  thought  not  to  rest  upon 
good   foundation.      The  -arguments   and 
authorities  njion  the  opposite  side  of  tlic 
rpiestion  are  very  ably  stated  in  11  Law 
Kcporter,  (Boston,)  272,  ct  seq. 

[483] 


460* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


tion  from  surrounding  circumstances,  and  the  general  character 
of  the  transaction,  and  the  established  usage  in  similar  cases,  as 
will  make  the  engagement  of  warranty  conform  to  the  inten- 
tion and  understanding  of  the  parties ;  provided,  however,  that 
the  words  of  warranty  are  neither  extended  nor  contracted  in 
their  significance  beyond  their  fair  and  rational  meaning.  For 
these  words  of  warranty  are  usually  subjected  to  a  careful,  if 
not  a  precise  and  stringent  interpretation,  as  it  is  the  fault  of 
the  buyer  who  asks  for  or  receives  a  warranty,  if  it  does  not 
cover  as  much  ground  and  give  him  as  effectual  protection  as 
he  intended,  (i) 

If  there  be  no  express  warranty,  the  common  law,  in  general, 
implies  none.  Its  rule  is,  unquestionably,  both  in  *England  and 
in  this  country,  caveat  emptor,  (J)  —  let  the  purchaser  take  care 


(i)  A  fjeneral  waiTaiity  is  said  not  to 
cover  defects  plain  and  obvious  to  the 
purchaser,  or  of  which  he  had  cognizance  ; 
thus,  if  a  horse  be  warranted  perfect,  and 
want  a  tail  or  an  ear.  13  H.  4, 1  b,  pi.  4  ; 
11  Edw.  4,  6  b,  pi.  10;  Southerne  v. 
Howe,  2  Rol.  E.  5;  Long  v.  Hicks,  2 
Hump.  305 ;  Schuyler  v.  Euss,  2  Caines, 
202 ;  Margetson  v.  Wright,  5  M.  &  P. 
606  ;  Dillard  v.  Moore,  2  Eng.  (Ark.)  166. 
The  same  rule  applies  whether  the  war- 
ranty is  express  or  whether  a  warranty  is 
implied  by  law,  from  a  sound  price,  as  is 
the  case  in  some  States.  Kichardson  v. 
Johnson,  1  Louis.  Ann.  Rc]).  389.  But 
care  should  be  taken  not  to  misunderstand 
nor  misapply  this  rule.  A  vendor  iuay 
Avarrant  against  a  defect  which  is  patent 
and  obvious,  as  well  as  against  any  other. 
And  a  general  warranty  that  a  Iiorse  was 
sound,  for  instance,  would  in  our  judgment 
be  broken,  if  one  e3''e  was  so  badly  injured, 
or  so  malfoi'raed,  as  to  be  entirely  useless, 
and  although  this  defect  might  have  been 
noticed  by  the  purchaser  at  the  time  of  sale. 
He  may  choose  to  rely  upon  the  warranty 
of  the  vendor,  rather  than  ui)on  his  own 
judgment,  and  wc  see  not  why  he  should 
not  be  permitted  to  do  so.  A  warranty 
that  a  horse  is  sound  is  broken  if  he  can- 
not see  with  one  eye.  House  v.  Fort,  4 
Black.  293.  Why  may  not  the  vendor  be 
equalh'  liable  if  one  eye  was  entirely  gone  ? 
In  Margetson  v.  Wiight,  8  Bing.  454,  7 
Bing.  603,  a  horse  warranted  sound  had  a 
splint  then ;  this  was  visible  at  the  time  of 
sale ;  but  the  animal  was  not  then  lame 

[484] 


from  it.  He  afterwards  became  lame  from 
the  effects  of  it ;  and  the  warranty  was 
held  to  be  broken.  •  In  Liddard  v.  Kain,  2 
Bing.  183,  an  action  was  brought  to  recover 
the  value  of  horses  sold  and  delivered. 
The  defence  was,  that  at  the  time  of  the 
purchase  the  plaintiff  agreed  to  deliver  the 
horses  at  the  end  of  a  fortnigiit,  sound  and 
free  from  blemish,  and  that  at  the  end  of 
the  fortnight,  one  had  a  cough,  and  the 
other  a  swelled  leg;  but  it  also  appeared 
that  tlie  seller  informed  the  buyer  that  one 
of  the  horses  had  a  cold  on  him,  and  that 
this  as  well  as  the  swelled  leg  was  appar- 
ent to  every  observer.  The  jury  having 
found  a  verdict  for  the  defendant,  a  rule 
for  a  new  trial  was  moved  for,  on  the 
ground  that  where  defects  are  ])atent  a 
warranty  against  them  is  inoperative.  The 
court  refused  tiie  rale,  on  the  ground  that 
the  warranty  did  not  apply  to  the  time  of 
the  sale,  but  to  a  subsequent  period.  —  In 
Stucky  i;.  Clyburn,  Cheves,  186,  a  slave 
sold  had  a  hernia ;  this  was  known  to  the 
buyer.  Yet  it  was  held  to  be  within  an 
express  wan-anty  of  soundness.  So  of 
a  swelling  in  the  abdomen,  plainly  visible 
and  known  to  the  purchaser.  Wilson  v. 
Eerguson,  Cheves,  190.  So  where  a  slave 
had  the  scrofula  at  the  time  of  s.ale. 
Thompson  v.  Botts,  8  Missouri,  710. 
And  where  a  defect  is  obvious,  yet  if  the 
purcliascr  be  misled  as  to  its  cliaracter  or 
extent,  a  warranty  is  implied.  Wood  v. 
Ashe,  3  Strob.  L.  64. 

(/)  Mixer  v.    Coburn,    11    Met.    559; 
Wiiisor  r.  Lombai-d,  18  Pick.  59;  Paxk- 


CH.  v.]  WAERANTY.  *461 

of  his  own  interests.  This  rule  is  apparently  severe,  and  it 
sometimes  works  wrong  and  hardship  ;  and  it  is  not  surprising 
that  it  has  been  commented  upon  in  terms  of  strong  reproach, 
not  only  by  the  community,  but  by  members  of  the  legal  pro- 
fession ;  and  these  reproaches  have  in  some  instances  been 
echoed  from  tribunals  which  acknowledge  the  binding  force  of 
the  rule.  But  the  assailants  of  this  rule  have  not  always  seen 
clearly  how  much  of  the  mischief  apparently  springing  from  it 
arises  rather  from  the  inherent  difficulty  of  the  case.  As  a  gen- 
eral rule,  we  must  have  this  or  its  opposite  ;  and  we  apprehend 
that  the  opposite  rule,  —  that  every  sale  implies  a  warranty  of 
quality,  —  would  cause  an  immense  amount  of  litigation 
and  injustice.  It  is  always  in  the  power  of  a  purchaser  to  de- 
mand a  warranty  ;  and  if  he  does  not  get  one,  he  knows  that 
he  buys  without  warranty,  and  should  conduct  himself  accord- 
ingly ;  for  it  is  always  his  duty  to  take  a  proper  care  of  his  own 
interests,  and  to  use  all  that  precaution  or  investigation  which 
such  case  requires;  and  he  must  not  ask  of  the  law  to  indemni- 
fy him  against  the  consequences  of  his  own  neglect  of  duty. 

The  decisions  under  the  rule  of  caveat  emptor  have  fluctuated 
very  much,  and  there  is  a  noticeable  conflict  and  uncertainty 
in  respect  to  many  points  of  the  law  of  warranty  upon  sales. 
But  some  exceptions  and  qualifications  to  the  general  rule  are 
now  nearly,  if  not  quite,  established,  both  in  England  and  in 
this  country;  and  the  rule  oi  caveat  emptor^  thus  modified,  may 
perhaps  be  regarded  as  upon  the  whole  well  adapted  to  protect 
right,  to  prevent  wrong,  and  to  provide  a  remedy  for  a  wrong 
where  it  has  occurred. 

One  important  and  universal  exception  is  this  :  the  rule  never 
applies  to  cases  of  fraud ;  never  proposes  to  protect  a  *seller 
against  his  own  fraud,  nor  to  disarm  a  purchaser  from  a  defence 
or  remedy  against  a  seller's  fraud,  {k)  It  becomes,  therefore, 
important  to  know  what  the  law  means  by  fraud  in  this  respec^, 
and  what  it  recognizes  as  such  fraud  as  will  prevent  the  appli- 

inson  v.  Lee,  2  East,  321 ;  Stuart  v.  Wil-  r.  Cuniiinj^ham,  9  Porter,   104 ;  Moris  v. 

kins,  Dou^l.   20;    Johnston   v.    Cojje,  3  Mead,  I  Dcnio,  378;  McKinncy  v.  Fort, 

liar.  &  Johns.  89  ;  Seix;is  r.   Woods,   2  -10  Tex.  220. 

Caiucs.  48;  Hohlen  c.   Dakin,  4  Jolins.  {k)  Irving  r.  Thomas,  18  Maine,  418  ; 

421  ;  Dean  v.  MiXflOn,  4  Conn.  428  ;  West  Otts  v.  Aldereou,  10  S.  &  M.  470. 

41  *  [  485  ] 


461-  THE   LAW   OF   CONTRACTS.  [BOOK   III. 

cation  of  the  general  rule.  If  the  seller  knows  of  a  defect  in 
his  goods,  which  the  buyer  does  not  know,  and  if  he  had  known 
would  not  have  bought  the  goods,  and  the  seller  is  silent,  and 
only  silent,  his  silence  is  nevertheless  a  moral  fraud,  and  ought 
perhaps  on  moral  grounds  to  avoid  the  transaction.  But  this 
moral  fraud  has  not  yet  grown  into  a  legal  fraud.  Iji  cases  of 
this  kind  there  may  be  circumstances  which  cause  this  moral 
fraud  to  be  a  legal  fraud,  and  give  the  buyer  his  action  on  the 
implied  warranty,  or  on  the  deceit.  And  if  the  seller  be  not 
silent,  but  produce  the  sale  by  means  of  false  representations, 
there  the  rule  of  caveat  emptor  does  not  apply,  and  the  seller  is 
answerable  for  his  fraud.  But  the  weight  of  authority  requires 
that  this  should  be  active  fraud.  The  common  law  does  not 
oblige  a  seller  to  disclose  all  that  he  knows,  which  lessens  the 
value  of  the  property  he  would  sell.  He  may  be  silent,  leaving 
the  purchaser  to  inquire  and  examine  for  himself,  or  to  require 
a  warranty.  He  may  be  silent,  and  be  safe ;  but  if  he  be  more 
than  silent ;  if  by  acts,  and  certainjy  if  by  words,  he  leads  the 
buyer  astray,  inducing  him  to  suppose  that  he  buys  with  war- 
ranty, or  otherwise  preventing  his  examination  or  inquiry,  this 
becomes  a  fraud  of  which  the  law  will  take  cognizance.  The 
distinction  seems  to  be  —  and  it  is  grounded  upon  the  apparent 
necessity  of  leaving  men  to  take  some  care  of  themselves  in 
their  business  transactions  —  the  seller  may  let  the  buyer  cheat 
himself  ad  libUum,  but  must  not  actively  assist  him  in  cheating 
himself.  (J) 


(I)  The  case  of  Laidlaw  v.  Organ,  2  such  news  did  not  exist,  and  under  the 

Wheat.  178,  is  the  leading  case  on  this  circumstanc'es    the    bargain   was    struck, 

subject  in  America.     The  facts  were  that  j\farsha]/,  C.  J.,  delivered  the  opinion  of 

one  Shepherd,  interested  witli  Organ,  and  the  court,  to  the  effect  that  the  l)uyer  was 

in  treaty  with  Girault,  a  memlier  of  tlie  not  bound  to  communicate  intelligence  of 

firm  of  Laidlaw  &  Co.,  at  New  Orleans,  extrinsic   circumstances   which  might  in- 

for  a  (juantity  of  tobacco,  had  secretly  re-  flueiico  the  price,  though  it  were  exclu- 

ceived  intelligence  over  night  of  the  peace  sivclj  in  his  possession,  and  that  it  would 

of  1815,  between  England  and  the  United  be   difficult  to  circumscribe  tlie  contrary 

States,  which  I'aised  the  value  of  the  arti-  doctrine   within   proper  limits,  irhere   the 

cle  from  thirty  to  fifty  per  cent.     Organ  means  of  intelligence  are  ec/ualli/  accessible  to 

called  on  Girault  on   Sunday  morning,  a  both  parties.    Bench  ?'.  Sheldon,  14  Barb, 

little  after  sunrise,  and  was  asked  if  there  6G  ;  Kintzing  v.   McElrath,   .5  Barr,  467, 

was  any  news,  by  which   the  price   of  it  also  well  illustrate  the  principle  of  the  text, 

might  be   enhanced  ;    but   there   was   no  that  where  the  means  of  knowledge  is  ac- 

evidencc  that  Organ  had  asserted  or  sug-  cessible  to  both  parties,  each  must  judge 

gested  any  thing  to  induce  a  belief  that  for  himself,  and  it  is  neither  the  duty  of 

[486] 


CH.  v.] 


TTAHRANTY. 


•462-*4  63 


*As  mere  silence  implies  no  warranty,  neither  do  remarks 
which  should  be  construed  as  simple  praise  or  commendation  ;(??i) 
but  any  distinct  assertion  or  affirmation  of  *quality  made  by  the 
owner  during  a  negotiation  {n)  for  the  sale  of  a  chattel,  which 
it   may  be   supposed  was  intended   to   cause  the  sale,  and  was 


the  vendor  to  communicate  to  the  vendee 
any  superior  knowledfre  which  he  may 
have  of  the  value  of  the  commodity,  nor 
of  the  vendee  to  disclose  to  the  vendor  a;iy 
facts  whicli  he  may  have,  renderin<;  the 
property  more  valuable  than  the  vendor 
supposed.  And  in  the  case  of  Irvine  v. 
Ivirkpatrick,  3  E.  L.  &  E.  17,  it  was  de- 
cided by  the  House  of  Lords  that  a  con- 
cealment upon  a  sale'  of  real  estate,  to 
avoid  the  sale,  must  he  of  something  that 
the  partv  concealinf^  was  bound  to  disclose. 
See  also,  Blvdcnburgh  v.  Welsh,  1  Bald- 
win, 331  ;  Calhoun  v.  Vechio,3  Wash.  C. 
C.  R.  10)5  ;  Eichelberger  i'.  Barnitz,  1 
Yeates,  307  ;  Pearce  i-."Blackwcll,  12  Ire. 
L.  49.  The  case  of  Hill  i-.  Gray,  1  Stark. 
434,  nii^dit  .seem  at  first  view  to  conflict 
with  this  doctnne.  There  a  picture  was 
sold,  which  the  buyer  W(Vi-e(/ had  been  tlie 
property  of  Sir  Felix  Agar,  a  circum- 
stance which  might  have  enhanced  its 
value  in  liis  eyes.  The  seller  knew  that 
the  purchaser  was  laboring  under  this  de- 
lusion, but  did  not  remove  it,  and  it  did 
not  appear  tliat  lie  either  induced  or 
strcngtiicncd  it.  In  an  action  for  the  ])ricc. 
Lord  Ellcnborough  nonsuited  the  plaintiff, 
saying  the  picture  was  sold  under  a  de- 
ception. The  seller  ought  not  to  have 
let  in  a  suspicion  on  the  jiart  of  the  pur- 
chaser wliicli  he  knew  enhanced  its  value. 
He  saw  the  purchaser  had  fallen  into  a 
delusion,  but  did  not  remove  it.  From 
the  report  itself,  it  might  seem  that  Lord 
Ellcnborough  here  held  that  silence  alone 
was  a  fraudulent  concealment,  sufficient  to 
vitiate  the  contract.  But  the  ca.se  is  ex- 
plained in  the  late  English  case  of  Kcates 
V.  Cadogan,  2  E.  L.  &  E.  318,  Jervis,  C. 
J.,  saying  in  Hill  v.  Gray,  there  was  a 
"positive  atjyressive  deceit.  Not  removing 
the  delusion  miglit  be  equivalent  to  an  ex- 
press niisrepresentation."  And  in  that 
case  it  was  laid  that  wliere  the  intended 
lessor  of  a  particular  house  knows  that  the 
house  is  in  a  ruinous  state,  and  dangerous 
to  occupy,  and  that  its  condition  is  un- 
known to  the  intended  lessee,  and  that  the 
intended  lessee  takes  it  for  the  purpose  of 
residing  in  it,  he  is  not  bound  to  dusclose 


the  state  of  the  house  to  the  intended 
lessee,  unless  he  knows  that  the  intended 
lessee  is  influenced  by  his  belief  of  the 
soundness  of  the  house  in  agreeing  to  take 
it,  or  unless  the  conduct  of  the  lessor 
amounts  to  a  deceit  practised  upon  the 
lessee.  See  also.  Fox  ;•.  JLickretli,  2  Bro. 
C.  C.  420.  —  On  the  other  hand,  the  ven- 
dor must  not  practise  any  artifice  to  con- 
ceal defects,  nor  make  any  repivsentations 
for  the  purpose  of  throwing  the  buyer  off 
his  guard.  See  JIatthews  v.  Bliss,  22 
Pick.  48;  Arnot  v.  Biscoe,  1  Ves.  Sen. 
95.  For  it  is  well  settled  that  misrepre- 
sentations of  material  fiicts,  by  whicii  a 
purchaser  is  misled,  vitiate  the  contract. 
Bencli  r.  Sheldon,  14  Bar!).  66  ;  Doggett 
!•.  Emerson,  3  Story,  700 ;  Daniel  v. 
Mitchell,  1  id.  172  ;  Small  v.  Attwood,  1 
Younge,  407  ;  Hough  r.  Richardson,  3 
Story,  659 ;  Warner  v.  Daniels,  1  W.  & 
M.  90.  The  whole  subject  is  ably  exam- 
ined in  2  Kent's  Com.  482,  et  sc(j.  See 
also,  Bean  r.  Ilerrick,  3  Faiif.  262 ;  Fere- 
bee  V.  Gordon,  13  Ire.  L.  350;  AVood  v. 
Ashe,  3  Strob.  L.  64. 

(w)  Thus,  in  Arnott  i:  Hughes,  Chitty 
on  Cont.  393,  note,  an  action  was  lirought 
on  a  warranty  that  certain  goods  were  fit 
for  the  China  market.  The  j)laintift'  pro- 
duced a  letter  from  tiie  defendant,  saying 
that  he  had  goods  fit  for  the  China  market, 
which  he  offered  to  sell  cheap.  Lord 
Ellcnlioroucjh  held  that  such  a  letter  was  not 
a  warranty,  but  merely  an  invitaticjn  to 
trade,  it  not  having  any  s])ecific  refe'rence 
to  the  goods  actually  bought  iiv  the  phjin- 
tifl'. 

(")  It  is  essential  that  a  warranty,  to  be 
binding,  be  made  dnrimj  the  negotiation  ; 
if  made  after  the  sale  is  completed  it  is 
without  consideration  and  void.  Roscorla 
V.  Thomas,  3  Q.  B.  234;  Bloss  v.  Kit- 
tridge,-5  Verm.  28;  Towcll  >-.  Gatcwood, 
2  Scainmon,  22.  —  If,  however,  the  ven- 
dor, in  a  negotiation  between  the  parties 
a  few  da}-s  before  the  sale,  offer  to  warrant 
the  article,  the  warranty  will  be  !>inding. 
Wilniot  !•.  Ilurd,  11  Wend.  584  ;  Lysncy 
V.  Sclby,  Ld.  Rayni.  1120.  But  see 
Hopkins  r.  Taiuiuerav,  26  E.  L.  &  E. 
[487] 


464* 


THE   LAAV    OF   CONTRACTS. 


[eOOK  III. 


operative  in  causing  it.  will  be  regarded  either  as  implying  or 
as  constituting  a  warranty.  If  such  affirmation  were  made  in 
good  faith,  it  is  still  a  warranty  ;  and  if  made  with  a  knowledge 
of  its  falsity,  it  is  a  warranty,  and  it  is  also  a  fraud. 

It  is  certain  that  the  word  warrant  need  not  be  used,  nor  any 
other  of  precisely  the  same  meaning.  It  is  enough  if  the  words 
actually  used  import  an  undertaking  on  the  part  of  the  owner 
that  the  chattel  is  what  it  is  represented  to  be ;  or  an  equivalent 
to  such  undertaking,  (o)    It  may  be  often  *difficult  to  distinguish 


254.  Ill  this  case,  the  defendant  having 
sent  his  horse  to  Tattersall's  to  be  sold  by 
auction,  on  tlie  day  previous  to  the  sale, 
saw  the  ])laintitF,  (with  whom  he  was  ac- 
quainted,) examining;  the  horse,  and  said 
to  him  bond  Jide,  "  You  have  nothinfj-  to 
look  for,  I  assure  j'ou ;  he  is  sound  in 
every  respect ;  "  to  which  the  phiintiff  re- 
plied, "  If  you  say  so  I  am  satisfied,"  and 
desisted  from  his  examination.  The  iiorse 
was  put  u])  the  next  day  to  auction,  and 
the  plaintilf  bought  him,  being  induced, 
as  he  said,  by  the  defendant's  assurance  of 
soundness.  Held,  in  an  action  for  breach 
of  warranty,  tliat  there  was  no  evidence 
to  go  to  the  jury  of  a  warranty,  the  repre- 
sentation not  being  made  in  the  course  of, 
or  M'ith  reference  to  tlie  sale. 

(o)  The  authon'ties,  from  Chandclor  v. 
Lopus,  Cro.  Jac.  4,  to  the  present  day,  all 
agree  that  a  bare  affirmation,  not  intended 
as  a  warranty,  will  uot  make  the  vendor 
liable.  Bacon  v.  Browil,  3  Bibb,  35 ; 
Davis  V.  Meeker,  5  Johns.  354 ;  Budd  r. 
Fairmaner,  8  Bing.  52,  where  a  receipt 
for  " a  grey  four  j'car  old  colt"  was  held 
only  an  afhrmation  or  representation  that 
he  was  four  years  old,  but  was  no  warranty 
to  that  elTect.  See  also,  Seixas  v.  Woods, 
2  Caines,  48,  a  very  strong  case ;  Holdcu 
I'.'Dakin,  4  Johns.  421  ;  Swctt  v.  Colgate, 
20  id.  196;  Conner  v.  Henderson,  15 
Mass.  320  ;  SteAvartr.  Doughcrtv,  3  Dana, 
479;  House  v.  Fort,  4  Blackf.  293; 
Adams  i\  Johnson,  1 5  111.  345.  So  where  a 
horse  was  sold  under  the  following  adver- 
tisement :  "  To  be  sold,  a  black  gelding, 
five  years  old  ;  has  been  constantly  driven 
in  the  plough.  WaiTanted,"  the  warranty 
was  held  to  apply  only  to  his  soundness, 
and  the  statement  as  to  age  was  considered 
only  as  an  affirmation  or  rejjrescntation  of 
his  age,  and  as  creating  no  liability  unless 
there  was  deceit.  Kichardson  r.  Brown, 
1  Bing.  344.     For  similar  instances,  see 

[488] 


Dunlop  V.  Waugh,  Peake,  123;  Power  i'. 
Barham,  4  Ad.  &  El.  473  ;  Jendwine  r. 
Slade,  2  Esp.  572  ;  Willard  v.  Stevens,  4 
Foster,  271.  On  the  other  hand,  any  af- 
firmation of  the  quality  or  condition  of  the 
thing  sold,  (not  intended  as  matter  of 
opinion  or  belief,)  made  by  the  seller  at 
the  time  of  sale,  for  the  purpose  of  assur- 
ing the  buyer  of  the  truth  of  the  fact  af- 
firmed, and  inducing  him  to  make  the 
purchase,  if  so  received  and  relied  upon 
by  the  purchaser,  is  an  express  warranty. 
Osgood  V.  Lewis,  2  Har.  &  Gill,  495,  a 
very  important  case  on  the  subject  of  war- 
ranty. Hawkins  r.  Bcrrv,  5  Oilman,  36  ; 
Hillman  v.  Wilcox,  30  Maine,  170;  Otts 
V.  Alderson,  10  S.  &  M.  476;  McGregor 
V.  Penn,  9  Yei'g.  74  ;  Kinley  v.  Fitzpatrick, 
4  Howard,  (Miss.)  59  ;  Beals  v.  Olmstead, 
24  Verm.  115.  Sec  also,  Towell  v.  Gatc- 
wod,  2  Scammon,  22  ;  Pennock  v.  Til- 
ford,  17  Penn.  456.  In  Kobcrts  v.  Mor- 
gan, 2  Cow.  438,  the  plaintiff  and  de- 
fendant being  in  negotiation  for  an  ex- 
change of  horses,  the  former  said  "he 
would  not  exchange  unless  the  latter 
would  warrant  his  hoi'se  to  be  sound." 
The  defendant  ansv/ered :  "  He  is  sound 
except  the  bunch  on  his  leg."  The  horse 
had  the  glanders.  Held,  that  this  was  an 
express  warranty.  See  also,  Oneida 
JNIanuf.  Society  v.  Lawrence,  3  Cow.  440  ; 
Chapman  v.  Murcli,  19  Johns.  290.  In 
Cook  v.  Mosely,  13  Wend.  277,  (a  sale  of 
a  mare,)  the  buyer  asked  the  seller  if  the 
marc  was  lame ;  the  latter  answered,  "  She 
was  not  lame,  and  that  he  would  not  be 
afraid  to  warrant  that  shewas  sound  every 
way,  as  far  as  he  knew."  Held  to  amount 
to  a  wan-anty.  In  Beeman  v.  Buck,  3 
Verm.  53,  the  same  principle  is  adopted. 
So  in  Wood  v.  Smith,  4  C.  &  P.  45,  the 
buyer  of  a  horse  said  to  the  seller,  "  She 
is  sound,  of  course  ?  "  The  latter  said, 
"  Yes,  to  the  best  of  my  knowledge."    On 


CH.   v.] 


WARRANTY. 


-464 


between  such  warranty  as  this,  and  the  naked  praise  {nuda  laiis,) 
or  a  simple  commendation,  [simplex  commendatio)  which  neither 
by  the  common  law  nor  by  the  civil  law  impose  any  obligation  ; 
but,  as  matter  of  law,  the  distinction  is  well  settled.  If  a  bill 
of  sale  be  given,  in  which  the  article  sold  is  described,  we  con- 
sider it  now  settled  that  this  description  has  the  full  cflcct  of 
warranty,  [p) 


being  asked  if  he  would  warrant  her,  he 
replied  :  "  I  never  wan-ant.  I  would  not 
even  waiTant  myself."  This  was  held  to 
amount  to  a  (jualificd  warranty.  The 
general  rule  of  the  text  is  well  stated  in 
Kicks  V.  Dillahunty,  8  Porter,  134.  See 
also,  Carley  v.  Wilkins,  6  Barl).  557, 
where  it  was  held  that  a  representation 
made  by  a  vendor,  upon  a  sale  of  flour  in 
barrels,  that  it  is  in  quality  superfine,  or 
extra  superfine,  and  worth  a  shilling  a 
barrel  more  than  common,  coupled  with 
the  assurance  to  tlie  buyer's  agent  that  he 
may  rely  upon  such  representation,, is  a 
warranty  of  the  quality  of  tiie  flour.  In 
Cave  f.  Coleman,  3  M!  &  11.  2,  the  vendor 
of  a  horse  told  the  vendee,  "  you  may  de- 
pend upon  it,  the  horse  is  perfectly  quiet, 
and  free  from  vice."  This  was  held  to 
amount  to  an  express  wan-anty.  But  see 
Erwin  v.  Maxwell,  3  MurpliV,  241.  In 
JacLson  v.  Wcthcrill,  7  Serg'.  &  liawle, 
480,  the  Supreme  Court  of  Pennsylvania, 
althougli  recognizing  the  rule  that  no  par- 
ticular words  were  necessary  to  constitute 
a  wananty,  hdd,  that  when  the  vendor  of 
a  horse  told  the  purcliaser  before  the  sale 
that  he  icas  sure  she  teas  pfrfectli/  safe,  kind, 
and  gentle  in  harness,  tliis  created  no  war- 
ranty, being  I)ut  a  hire  aj/trmation  of  qual- 
ity. See  also,  ^IcParland  i\  Newman,  9 
■\^atts,  50,  S.  P.  In  Siiepcrd  c.  Temple, 
3  N^'w  Ilanip.  455,  the  vendor  of  a  lot  of 
timber,  most  of  which  was  covered  with 
sr.oiN',  declared  that  it  was  of  as  good 
quality  as  some  of  the  sticks  whidi  were 
visit)lc  ;  held  tiiat  tliis  did  not  necessarily 
amount  to  a  wairanty.  See  Stevens  v. 
Puller,  8  N.  Ilainp.  403,  as  to  what  is 
competent  evidence  to  prove  a  warranty. 
A  statement  that  a  horse's  eyes  "  are  as 
good  as  any  horse's  eyes  in  the  world," 
does  not,  of  itself,  necessarily  amount  to  a 
warranty.  House  v.  Port,  4  Blackf.  29.3. 
The  question  whether  any  particular  aflir- 
mation  amounts  to  a  warranty  is  for  the 
jury.  The  criterion  is  the  understanding 
and  intention  of  the  parties.  Durtec  v. 
Mason,  8  Cow.  25 ;  Morrill  v.  Wallace,  9 


New  Hamp.  Ill ;  Chapman  v.  Murch,  19 
Johns.  290.  It  is  for  the  jury  to  say 
whether  the  language  used  was  intended 
as  a  mere  expression  of  opinion,  or  belief, 
or  as  a  rejjresentation.  Whitney  v.  Sutton, 
10  Wend.  411;  Poster  r.  Ctildwcll,  18 
Verm.  170;  Bradford  v.  Busli,  10  Ala. 
386  ;  Baum  v.  Stevens,  2  Led.  411  ;  Pog- 
gart  V.  Blackweller,  4  id.  238.  A  bare 
aflimiation  of  soundness  of  a  horse  which 
is  then  exposed  to  the  purchaser's  inspec- 
tion, is  not,  per  se,  a  waiTanty.  It  is  of 
itself  only  a  representation.  To  give  it 
the  effect  of  a  warranty,  it  must  be  shown 
to  tlie  satisfaction  of  the  juiy  that  the  par- 
ties intended  it  to  have  that  eflfect.  House 
V.  Port,  4  Blackf  296.  See  also  Tyre  v. 
Causey,  4  Harring.  425.  The  affirmation 
must  be  made  to  assure  the  buyer  of  the 
truth  of  the  fact  asserted,  and  induce  him 
to  .make  the  purchase,  and  must  be  so  re- 
ceived and  relied  upon  by  him.  Ender  v. 
Scott,  11  Illinois,  35  ;  Humphreys  v.  Corn- 
line,  8  Blackf  508.  • 

(/»)  Ilensliaw  v.  Robins,  9  Met.  83,  is 
one  of  tiie  best  considered,  «is  well  as  one 
of  the  most  recent  cases  upon  this  subject. 
There  tiie  bill  of  sale  was  as  follows  : 
"  Henshaw  &  Co.  bo't  of  T.  W.  S.  &  Co. 
tiro  cuse^  of  indigo,  8272.35."  The  article 
sold  was  not  indigo,  but  princijially  Prus- 
sian blue.  There  was  no  fraud  imputed 
to  the  vendor,  and  the  article  was  so  pre- 
pared as  to  deceive  skilful  dealers  in  indigo. 
The  naked  question  was  presented  whether 
the  bill  of  sale  constituted  a  warranty  that 
the  article  was  indigo.  The  court,  after 
an  ai)le  analysis  of  the  cases  upon  this 
point,  decided  in  the  aflirmativc.  The 
same  question  had  been  very  alily  con- 
sidered by  the  same  court  in  the  prior  case 
of  Hastings  v.  Lovering,  2  Pick.  214.  In 
that  case,  the  bill  of  parcels  was:  "  Sold 
E.  T.  H.  2,000  gallons  prime  qnidity 
winter  oil."  The  article  sold  was  oil,  but 
was  not  prime  quality.  In  this  respect  the 
case  dilVers  from  tlie  prccciljng.  There 
the  kind  of  coniniodity  was  dilfcrent  ;  here 
only  the  quality.     The  court  applied  the 

[489] 


465 


THE   LAW   OF   CONTRACTS. 


[book  III. 


One  exception   to    the  rule  of   caveat  emptor   springs  from 
the  rule   itself.     For  a  requirement  that  the  purchaser  should 


same  rule,  and  held  the  -writing  to  he  a 
wan-anty  that  tlie  article  was  of  the  quality 
described.  So,  in  Yates  v.  Pyni,  6  Taunt. 
446,  the  article  was  described  in  the  sale 
note  as  "  58  bales  of  prime  singed  bacon." 
It  was  held  to  amount  to  a  warranty  that 
the  bacon  was  prime  singed.  Osgood  v. 
Lewis,  2  liarr.  &  Gill,  495,  supports  the 
same  view  ;  in  that  case  the  words  in  tlie 
bill  of  parcels  were,  "  winter  pressed  sperm 
oil."  This  was  considered  as  a  warranty 
that  the  oil  was  winter  pressed.  So  in 
The  Richmond  Trading,  &c.  Co.  v.  Far- 
quar,  8  Blackf.  89,  it  was  held,  where 
wool  was  sold  in  sacks,  and  the  sacks 
marked  by  the  seller  and  described  in  tlie 
invoice  as  being  of  a  certain  quality,  thafr 
this  is  an  express  warranty  that  it  is  of 
such  quality.  And  where  a  vessel  was 
advertised  for  sale  as  being  "  copper  fast- 
ened," this  was  held  to  be  a  warranty  that 
she  was  so,  according  to  the  understanding 
of  the  trade.  Shepherd  v.  Kain,  5  B.  & 
Aid.  240.  See  Paton  v.  Duncan,  3  C.  & 
P.  336  ;  Teesdale  v.  Anderson,  4  id.  198  ; 
Wilson  V.  Backhouse,  Pcake's  Add.  Cas. 
119.  — So  in  Pennsylvania  it  is  held,  that 
in  a  sale  of  goods  described  in  a  bill  or 
sold  note,  there  is  an  implied  warranty 
that  the  commodity  sold  is  the  same  in 
specie  as  the  description  given  of  it  in  the 
bill.  •Borrekins  v.  Bevan,  3  Rawle,  23. 
But  the  courts  of  that  State  refuse  to  ex- 
tend the  same»doctrine  to  a  statement  of 
quality  of  the  articles  sold.  Therefore, 
where  the  article  was  described  in  the  bill 
of  sale  as  "superior  sioeet-scented Kentucky 
leaf  tobacco,"  the  seller  was  held  not  liable 
on  a  warranty,  if  the  tobacco  was  Ken- 
tucky leaf,  though  of  a  very  low  quality, 
ill-flavored,  untit  for  the  market,  and  not 
sweet-scented.  Fraley  r.  Bispham,  10 
Barr,  320.  And  see  Jennings  v.  Gratz,  3 
Rawle,  168.  See  also,  HyaU  v.  Boyle,  5 
Gill  &  Johns.  110.  A  contract  for  "good 
fine  wine "  has  been  held  to  import  no 
warranty,  these  words  being  too  uncertain 
and  indefinite  to  raise  a  warranty.  Hogins 
V.  Plymton,  11  Pick.  97.  A  warranty 
that  certain  oil  "  sliould  stand  the  climate 
of  Vermont  without  cliilling,"  means  that 
the  oil  will  not  chill,  when  used  inVer-. 
mont,  in  the  ordinary  manner  lamp  oil  is 
used.  Hart  i'.  Hammett,  18  Verm.  127. 
So  a  bill  of  saJe  describing  the  article  sold 
simply  as  "  tallow,"  raises  no  implied 
warriiuty  that  the  tallow  should  be  of  good 

[  490  ] 


qualitv  and  color.  Lamb  v.  Crafts,  12 
Met.  353.  And  in  a  bill  of  sale  of  "  cer- 
tain lots  of  boards  and  dimension  stuff  now 
at  and  about  the  mills  at  P.,"  there  is  no 
implied  warranty  that  the  boards  are  mer- 
chantable. Whitman  v.  Freese,  23  Maine, 
212.  A  bill  of  sale  of  a  negro  described 
her  as  "  being  of  sound  wind  and  limb, 
and  free  from  all  disease."  Held,  an  ex- 
press warrant}'  that  she  was  sound.  Cramer 
V.  Bradshaw,  10  Johns.  484.  But  a  bill 
of  sale  of  a  horse,  as  follows:  "  T.  W. 
bought  of  E.  R.  one  bay  horse,  five  years 
old  last  July,  considered  sound,"  signed  by 
the  vendor,  creates  no  warranty  of  the 
soundness  of  the  horse.  Wason  v.  Rowe, 
16  Verm.  525.  See  also,  Towell  v.  Gate- 
wood,  2  Scammon,  22  ;  Baird  v.  Matthews, 
6  Dana,  129.  So  in  AVinsor  v.  Lombard, 
18  Pick.  57,  the  bill  of  sale  described  the 
article  as  so  many  "  barrels  No.  1  mack- 
erel,<ind  so  many  barrels  No.  2  mackerel." 
The  mackerel  sold  were  in  fact  branded 
by  the  inspector  as  No.  1  and  No.  2.  It 
was  held  there  was  no  implied  warranty 
that  they  were  free  from  rust  at  the  time 
of  sale,  although  it  was  proved  that  mack- 
erel atfected  by  rust  are  not  considered 
No.  1  and  No.  2.  But  the  general  doc- 
trine of  this  note  was  expressly  recognized 
by  Shaiv,  C.  J.,  who  said  :  "  The  I'ule 
being,  that  upon  a  sale  of  goods  by  a 
written  memorandum  or  bill  of  parcels,  the 
vendor  undertakes,  in  the  nature  of  war- 
ranting, that  the  thing  sold  and  delivered 
is  that  which  is  described,  this  rule  ap- 
plies whether  the  description  be  more  or 
less  particular  and  exact  in  enumerating 
the  qualities  of  the  goods  sold." .  In  some 
early  cases  in  America,  it  was  held  that 
the  description  given  to  property  in  adver- 
tisements, bills  of  sale,  sold  notes,  &c., 
did  not  enter  into  the  contract,  and  there- 
fore being  but  matters  of  description, 
created  no  warranty.  Such  are  the  cases 
of  Seixas  i\  Woods,  2  Caines,  48 ;  Bar- 
rett V.  Hall,  1  Aikens,  269  ;  Sweet  v.  Col- 
gate, 20  Johns.  196,  and  some  others  ;  but 
we  think  the  more  modern  cases  have 
decided  that  a  rule  of  law,  in  itself  sound, 
was  in  those  instances  erroneously  applied. 
See  Henshaw  v.  Robins,  9  Met.  83,  and  2 
Kent's  Com.  489.  See  also  the  valuable 
notes  to  Chandelor  v.  Lopus,  1  Smith's 
Lead.  Cas.  76,  et  seq.,  where  will  be  found 
an  able  examination  of  the  whole  subject 
of  warranty. 


CH.  v.]  WARRANTY.  *466-*467 

*"  beware,"  or  should  take  care  to  ascertain  for  himself  the  quality 
of  the  thing  he  buys,  becomes  utterly  unreasonable,  under  cir- 
cumstances which  make  such  cojre  impossible.  If,  therefore, 
the  seller  alone  possesses  the  requisite  knowledge,  or  the  means 
of  knowledge,  and  offers  his  goods  for  sale  under  circumstances 
which  compel  the  purchaser  to  rely  upon  the  judgment  and 
honesty  of  the- seller,  without  any  examination  on  his  own  part 
as  to  the  quality  of  the  thing  offered,  it  has  been  held  that  the 
rule  of  caveat  emptor  does  not  apply,  because  it  cannot  apply, 
and  that  the  seller  warrants  that  the  goods  he  offers  for  sale  are 
in  respect  to  their  qualities  what  the  purchaser  rriay  fairly  un- 
derstand them  to  be ;  in  other  words,  that  they  are  of  merchant- 
able value,  and  proper  subjects  of  trade,  (q) 

It  might  seem  that  the  reason  of  this  rule  should  apply  to  all 
cases  where  an  article  is  sold  of  which  the  value  is  materially 
affected  by  some  defect  which  the  buyer  cannot  know  or  dis- 
cover. But  it  is  not  yet  conceded  that  in  all  such  cases 
there  is  an  implied  warranty.  The  implication  does  not  *ap- 
pear  to  extend  to  cases  where  an  examination  would  be  fruit- 
less, but  only  to  those  in  which  there  can  be  no  examination. 
It  is  true,  that  in  the  fluctuation  which  has  marked  the  course 
of  adjudication  on  the  subject  of  warranty  with  sale  there  is  a 
series  of  cases,  in  which,  for  a  considerable  time,  a  principle 
seemed  to  be  acquiring  favor,  which  was  almost  equivalent  to 
a  rule  that  every  sale  carried  with  it  an  implied  warranty  of  the 

(7)  Hanks  1-.  McKec,  2  Litt.  227.     Gar-  hill."     See  also,  the  case  of  Gallagher  v. 

diner  J'.  Gray,  4  Camp.  144,  is  the  Icadintj  Waring,    9  Wend.  20,  where    the   court 

case  n\)on  this  point.     In  that  case,  Lord  were  inclined  to  extend   the  rule  to  the 

Ellcniioroni/h,  speaking  to  this  point,  says  :  case  of  a  sale  of  cotton  in  Imhs,  lying  in  the 

"  I  am  of  opinion  tliat  under  such  circuin-  storehouse  of  the  vendor,  situate   in  the 

stances  the  jnirchasur  has  a  right  to  exjiect  place  ^vhere  both  vendor  and  vendee  ro- 

u  salable  article  answering  the  description  sided,    notwithstanding  that    the    vendor 

in  the  contract.     Without  any  particular  had  no  !)etter  opi)ortunity  than  the  vendee 

warranty,  this  is  an  implied  term  in  every  for  the  ins])ectiou  of  the  article.    The  case 

such  contract.     Where  there  is  no  opj>or-  of  Hyatt  !-.  Boyle,  .'5  Gill  &  Johns.  110, 

tunity   to    inspect    the    commodity,    the  also  liolds  that  the  rule  of  caveat  emptor 

maxim  of  cavtat  nnjitor  does  not  apply,  does  not  a])ply,  if  the  buyer  lias  no  opj)or- 

lle  cannot  without  a  warranty  insist  that  tunity  to  inspect  the  goods,  and  in  such 

it  shall   be  of  any   particular  quality  or  case  the  seller  impliedly  warrants'  them  to 

fineness,  but  the  intention  of  both  jiarties  be  mercliantable.     I5ut  the  mere  fact  that 

must  be  taken  to  be,  that  it  shall  be  sal-  the  examination  is  attcndtd  icith  inconmi- 

able   in   the   market  umler  the  denomina-  iaice   to  the  jiurchaser  is  not  sntlieient  to 

tion  mentioned  in  the  contract  between  dispense  with  the  rule.   It  must  be  morally 

them.    The  purchaser  cannot  be  supposed  impracticable, 
to  buy  goods  to   place  them  on  a  dung- 

[491] 


468" 


THE    LAW    OF    CONTRACTS. 


[book  ni. 


merchantable  quality  of  the  goods  sold.  Of  course  such  a  rule 
would  in  fact  annul  that  of  caveat  emptor.  But  of  late  the 
courts  seem  to  be  retracing  their  steps  ;  and,  in  this  country  at 
least,  we  consider  the  ancient  rule  as  distinctly  established,  (r) 
There  are  but  two  of  our  States  in  which  it  is  an  acknowledged 
rule  of  law  that  a  sale  of  a  chattel  for  a  full  price  carries  with  it 
an  implied  warranty.  And  in  one  of  these  the  civil  law,  of 
which  this  is  a  principle,  prevails,  {s) 

If  goods  are  sold  by  sample,  there  can  be  no  examination  of 
the  goods,  but  there  may  be  of  the  sample.  There  is,  therefore, 
an  implied  warranty  that  the  goods  correspond  to  the  sam- 
ple, [t)     But  if  they  do  correspond,  and  the  sample  *itself  has  a 


(r)  The  weight  of  authority  decidedly 
determines  that  a  sale  for  a  sound  price 
implies  no  warranty  of  quality,  or-that  the 
article  is  merchantable.  Dean  v.  Mason, 
4  Conn.  428,  an  able  case  on  this  subject; 
Holden  v.  Dakin,  4  Johns.  421  ;  SncU  v. 
Moses,  1  id.  9G  ;  Jolmston  v.  Cope,  3  Harr. 
&  Johns.  89 ;  Cozzins  v.  Whitaker,  3 
Stew.  &  Port.  322  ;  La  Neuville  v.  Nourse, 
3  Camp.  351  ;  West  v.  Cunningham,  9 
Port.  104;  Wetherill  v.  Neilson,  20  Peun. 
St.  Eeps.  448. 

(s)  South  Carolina  and  Louisiana  alone, 
of  American  States,  hold  that  a  sale  of  a 
chattel  for  a  sound  ]3rice  creates  a  warranty 
against  all  faults  known  or  unknown  to 
the  seller.  Timrod  v.  Shoolbrcd,  1  Bay, 
324  ;  Dewees  v.  Morgan,  1  Martin,  1  ; 
State  V.  Gaillard,  2  Bay,  19;  Barnard  v. 
Yates,  1  N.  &  McC.  142;  Misroon  v. 
Waldo,  2  id.  76  ;  Melaufon  r.  Robichaux, 
17  Louisiana  R.  97.  I5ut  this  does  not 
extend  to  sales  of  real  estate.  Rupart  v. 
Dunn,  1  Richardson,  101.  And  in  sales 
of  personal  property,  if  the  buyer  is  in- 
formed fully  of  all  the  circumstances,  and 
has  a  fair  opportunity  of  informing  liim- 
self,  he  is  bound  by  his  contract,  although 
it  be  a  losing  one.  Wliitetield  v.  McLeod, 
2  Bay,  380.  xVnd  sec  Caruoeluui  v. 
Gould,  1  Bailey,  1 79  ;  Rose  v.  Beatie,  2 
N.  &  McC.  538.  And  if  the  ])arties  ex- 
pressly agree  that  the  buyer  shall  take  the 
property  at  his  own  risk,  the  vendor  is  not 
answerable  for  its  soundness.  Thompson 
V.  Lindsay,  3  Brev.  305.  And  a  sound 
price  does  not  imply  a  ixduc.  of  tlie  prop- 
erty equal  to  the  price,  but  only  that 
there  is  no.  unsoundness.  And  such  un- 
soundness must  materially  affect  the  ar- 
ticle.    Smith  V.  Rice,  1  Bailey,  648. 

[492] 


(t)  Bradford  v.  Manley,  13  Mass.  139, 
a  leading  case  in  America  upon  this  jDoint. 
Oneida  Manuf.  Co.  v.  Lawrence,  4  Cow. 
440;  Andrews  v.  Knccland,  6  id.  354; 
Gallagher  v.  Waring,  9  Wend.  20  ;  Beebee 
v.  Robert,  12  id.  413;  Boorman  y.  Jen- 
kins, 12  id.  566;  Moses  v.  Mead,  1 
Denio,  386;  Brower  v.  Lewis,  19  Barb. 
574 ;  Beirne  v.  Dord,  1  Seld.  95  ;  Har- 
gous  V.  Stone,  id.  73  ;  Borrekins  v.  Bevan, 
3  Rawle,  37  ;  Rose  v.  Beatie,  2  N.  &  McC. 
538 ;  Beirne  v.  Dord,  2  Sandf.  89,  an  excel- 
lent case  upon  this  point.  It  is  there  held 
that  in  order  t6  constitute  a  sale  by  sample, 
it  must  appear  that  the  parties  contracted 
solely  in  reference  to  the  sample,  or  arti- 
cle exhibited,  and  that  both  mutually  un- 
derstood they  were  dealing  with  the  sam- 
ple, and  with  an  understanding  that  the 
bulk  was  like  it.  And  in  the  same  case 
upon  appeal,  1  Selden,  95,  and  in  Har- 
gous  V.  Stone,  1  id.  73,  it  is  decided  that 
the  mere  exhibition  of  a  sample  is  not 
sufficient  to  constitute  a  warranty  that  the 
bulk  of  the  goods  is  of  the  same  quality 
with  the  sample,  that  such  exhibition  is 
but  a  representation  that  the  samj)le  has 
been  fairly  taken  from  the  bulk  of  the 
commodity,  and  that  for  the  production 
of  the  sample  to  have  the  effect  of  a  strict 
warranty  it  must  bo  shown  that  the  par- 
ties mutually  understood  that  there  was 
an  agreement  on  the  part  of  the  seller  that 
the  bulk  of  the  commodity  should  corre- 
spond with  the  sample.  —  An  opportunity 
for  a  personal  examination  of  the  bulk  is 
a  strong  circumstance  against  considering 
the  sale  to  have  been  made  by  sample. 
Hargous  v.  Stone,  1  Seld.  73 ;  Beirne  v. 
Dord,  1  id.  95.  See  also.  Waring  v. 
Mason,  18   Wend.  434.     In  Williams  v. 


en.  v.] 


WARRANTY. 


*469 


defect,  even  if  this  defect  be  nnkiiown,  and  not  discoverable  by 
examination,  there  is  no  implied  warranty  against  this  defect, 
and  the  seller  is  not  responsible.  (//)  If  there  be  an  express 
warranty,  an  examination  of  samples  is  no  waiver  of  the  war- 
ranty ;  nor  is  any  inquiry  or  examination  into  the  character  or 
quality  of  the  things  sold  ;  for  a  man  has  a  right  to  protect 
himself  by  such  inquiry,  and  also  by  a  warranty,  (uu) 

If  a  thing  be  ordered  of  the  manufacturer  for  an  especial  pur- 
pose, and  it  be  supplied  and  sold  for  that  purpose,  there  is  an 
implied  warranty  that  it  is  fit  for  that  purpose,  (v)     *This  prin- 


Spafford,  8  Pick.  250,  a  leather  bag  of 
indigo  was  sold,  wliich  the  bill  of  sale  de- 
scribed as  "  one  scroon  of  indigo."  There 
was  a  .small  triangular  hole  on  one  side  of 
the  scroon,  where  tlic  purcliaser  might 
draw  out  a  specimen,  and  at  tlie  sale  the 
plaintiff  examined  tlie  article  in  this 
mode.  The  seroon  proved  to  be  mainly 
filled  witli  other  substances  than  indigo. 
It  was  held  a  sale  "by  sample,"  and  that 
there  was  a  warranty  that  the  bulk  was 
of  the  same  kind  and  quality  witli  the 
sample.  In  Salisbury  v.  Stainer,  19 
Wend.  159,  several  bales  of  hemp  were 
sold.  Tlie  purchu-ser  was  told  to  examine 
tlie  hemp  for  himself.  He  cut  ojjen  one 
bale,  and  ap])eared  satisfied  witii  the 
<|uality.  lie  might  have  cut  open  every 
bale,  had  he  chosen  to  do  so.  It  was 
jirovcd  that  the  interior  of  tlie  bales  con- 
sisted of  tow,  and  of  a  quality  of  hemp 
very  much  inferior  to  that  on  the  outside 
of  the  bales.  This  was  held  not  to  be  a 
sale  by  sample,  and  that  there  was  no 
waiTanty  that  the  interior  should  corre- 
spond witli  the  exterior  of  the  bales. 

(h)  Parkinson  v.  Lee,  2  East,  314;  a 
very  important  case  upon  this  subject, 
wliich  has  been  much  discussed,  and 
sometimes  doubted,  but  which,  when 
projierly  understood,  seems  to  be  well 
supported  by  iirinciple  and  analogy.  It 
wa.s  a  sale  of  live  jiockets  of  hops,  with 
express  warranty  that  the  bulk  answered 
the  samples  by  which  the}-  were  sold. 
The  sale  was  in  January,  1801  ;  at  thitt 
time  the  sdinples  fairhj  aiisircred  to  the  com- 
inodili/  in  hidk,  and  no  defect  was  at  that 
lime  peixe/itible  to  the  Imi/cr.  In  July  fol- 
lowing every  pocket  was  found  to  have 
become  unmerchantable  and  sj)oiled,  by 
heating,  caused  probably  by  the  hops 
hiiving  been  fraudulently  watered  by  the 

VOL.  I.  42 


grower,  or  some  other  person,  before  they 
were  purchased  by  the  defendant.  The 
defendant  knew  nothing  of  this  fact  at  the 
time  of  sale,  and  it  was  then  impossible  to 
detect  it.  It  was  held  that  there  was  here 
no  implied  warranty  that  the  bulk  of  the 
commodity  was  merchantable  at  the  time 
of  sale,  although  a  merchantable  price 
was  given.  —  In  the  late  case  of  Nichol  ». 
Godts,  where  the  plaintiff,  having  agreed 
to  sell  to  the  defendant  a  quantity  of  oil, 
described  as  foreign  refined  rape  oil,  but 
warranted  only  equal  to  samples,  and 
having  delivered  oil  wliich  w.as  not  foreign 
refined  oil,  but  wliich  corrcs))onded  with 
the  samples,  it  was  hehl  that  the  defendant 
was  not  bound  to  accept  the  same,  as  he 
was  entitled  to  the  delivery  of  oil  answer- 
ing to  the  description  of  foreign  refined 
rape  oil,  and  that  the  statement  in  the 
contract  as  to  samples  related  only  to  the 
quality  of  the  oil. 

{uu)  Willings  v.  Consequa,  Pet.  C.  C. 
301. 

(y)  Beals  v.  Olmstead,  24  Verm.  114; 
Jones  j\  Bright,  5  Bing.  533,  is  the  lead- 
ing Engli.sh  case  on  this  subject.  There 
the  defendant  was  a  manufuctunr  and 
vendor  of  copper.  The  plaintiff  applied 
to  him  "  for  copper  for  sheathing  a  vessel." 
The  defendant  said  :  "  I  will  sujijily  you 
well."  From  the  defendant's  warehouse 
the  plaintiff's  agent  then  selected  such 
cojiper  as  was  wanted,  and  applied  it  to 
j)laiiitiff"s  vessel.  It  proved  to  be  very 
defective,  and  lasted  only  about  four 
months,  in  place  of  four  years,  the  usual 
time  (if  wear  of  good  sheathing  ;  the  jury 
found  that  the  decay  was  caused  by  some 
intrinsic  defect  in  the  qiuility  of  the  cop- 
jier,  but  that  tliere  was  no  satisfactory  evi- 
dence of  what  the  defect  was.  No  fraud 
wiis  imputed  to  the  defendant.     After  full 

[493] 


470* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


ciple  has  been  carried  very  far.     It  must,  however,  be  limited  to 
cases  u'here  a  thing  is  ordered   for  a  special  *purpose,  and  not 


argument  and  deliberation,  it  was  held  hj 
the  whole  Court  of  Common  Pleas  that 
there  was  an  implied  warranty  that  the 
article  was  fit  for  the  purpose  for  which  it 
was  sold.  See  also,  Brenton  v.  Davis,  8 
Blackf.  317.  Laing  w.  Fidgcon,  6  Taunt. 
108,  is  also  an  important  case.  The  de- 
fendant was  a  saddle  manufacturer.  lie 
sent  the  plaintiff  a  sample  of  saddles  that 
could  be  made  for  a  certain  price.  Tiie 
plaintiff  then  gave  him  an  order  for 
"  goods  for  North  America,  3  dozen  single 
flap  saddles,  24s.  a  26s.  with  cruppers, 
&c."  The  saddles  delivered  were  inferior 
in  material  and  workmanship,  useless  and 
unmerchantahle,  and  did  not  correspond  with 
the  sample  sent.  The  court  held  the  whole 
transaction  to  amount  to  a  contract  that 
the  article  should  be  merchantable,  and 
the  plaintiff  bad  judgment.  Erown  v. 
Edgington,  2  M.  &  Gr.  279,  also  deserves 
attention.  The  defendant  was  a  dealer  in 
ropes,  and  represented  himself  to  be  a 
manufiictui'er  of  the  article.  The  plain- 
tiff, a  wine  merchant,  applied  to  him  for 
a  crane  rope.  The  defendant's  foreman 
went  to  the  plaintiff's  premises  in  order  to 
ascertain  tlie  dimensions  and  kind  of  rope 
required.  Ho  examined  the  crane  and 
the  old  rope,  and  took  the  necessary  ad- 
measurements, and  was  told  that  the  new 
rope  was  wanted  for  the  purpose  of  raising 
pipes  of  wine  out  of  the  cellar,  and  letting 
them  down  into  the  street;  when  be  in- 
formed the  plaintiff  that  a  rope  must  be 
made  on  ])urpose.  The  defendant  did  not 
make  the  rope  himself,  but  sent  the  order 
to  his  manufacturer,  who  employed  a  third 
person  to  make  it.  It  was  held  that,  as 
between  the  parties  to  tlie  sale,  the  defend- 
ant was  to  be  considered  as  the  manufac- 
turer, and  that  there  was  an  implied  war- 
ranty that  the  rope  was  a  fit  and  proper 
one  for  the  purpose  for  which  it  was 
ordered.  Tindul,  C.  J.,  said :  "  It  ap- 
pears to  me  to  bo  a  distinction  well 
founded,  both  in  reason  and  on  authority, 
that  if  a  party  purchases  an  article  upon 
his  own  judgment,  ho  cannot  afterwards 
hold  the  vendor  responsible,  on  the  ground 
that  the  article  turns  out  to  be  unfit  for 
the  purpose  for  which  it  was  required ; 
but  if  he  rehes  upon  the  judgment  of  the 
seller,  and  informs  him  of  the  use  to  which 
the  article  is  to  be  applied,  it  seems  to  me 
the  transaction  carries  with  it  an  implied 
warranty,  that   the  thing  furnished  shall 

[494] 


be  fit  and  proper  for  the  purposes  for 
which  it  was  designed."  In  Shepberd  v. 
Pybus,  3  M.  &  Gr.  868,  it  was  held  that  in 
a  sale  of  a  barge  by  the  buildei;  there  was 
an  implied  warranty  that  it  was  reasona- 
h\y  Jit  for  use,  but  it  was  left  undetermined 
whether  thei-e  was  an  implied  warranty 
that  the  barge  was  fit  for  some  pnrticalar 
purpose,  for  which  the  builder  knew  it  was 
designed  by  the  purchaser.  See  also, 
Chambers  v.  Crawford,  Addison,  150, 
that  a  boatbuilder,  constriicting  a  boat,  is 
held  to  warrant  it  sufficient  for  ordinary 
use.  —  In  Ollivant  v.  Baylej%  5  Q.  B.  288, 
the  plaintiff  was  patentee  and  manufac- 
turer of  a  patent  machine  for  pi-inting  u» 
two  coloi's.  The  defendant  saw  the  ma- 
chine on  the  plaintiff's  premises,  and 
ordered  one,  the  plaintiff  undertaking  by 
a  written  memorandum  to  make  him  "a 
two  color  printing  machine  on  my  patent 
principle."  In  an  action  for  the  price,  the 
defendant  excused  himself  from  liability 
on  the  ground  that  the  machine  had  been 
found  useless  for  printing  in  two  colors. 
The  judge,  in  suinming  up,  told  the  jury 
that,  if  the  machine  described  was  a 
known,  ascertained  article,  ordered  by  the 
defendant,  he  was  liable,  whether  it  an- 
swered his  purpose  or  not ;  but  that  if  it 
was  not  a  known,  ascertained  article,  and 
the  defendant  had  merely  ordered,  and  the 
plaintiff  agreed  to  supply,  a  machine  for 
printing  two  colors,  the  defendant  was  not 
liable  unless  the  instrument  was  reasona- 
bly fit  for  the  purfjose.  The  Court  of 
Queen's  Bench  held  this  to  be  a  proper 
direction  ;  and,  the  juiy  having  found  for 
the  plaintiff  under  it,  they  refused  to  dis- 
turb the  verdict.  Sec,  also,  the  next  note. 
In  Barnett  v.  Stanton,  2  Ala.  195,  it  was 
determined  that  if  manufactured  goods  are 
open  to  inspection,  and  are  actually  ex- 
amined by  the  purchaser,  before  the  sale, 
there  is  no  implied  warranty  of  quality, 
although  the  manuf;icturer  himself  be  the 
vendor.  See  Kirk  v.  Nice,  2  Watts,  367, 
that  a  manufacturer  even  does  not  always 
undertake  that  the  goods  made  are  mer- 
chantable. The  principle  of  the  text,  and 
the  distinction  between  a  sale  of  a  manu- 
factured article  by  the  manufacturer  him- 
self, and  of  an  ordinary  sale  of  a  chattel, 
as  to  implied  wan-anty,  is  recognized  in 
Misner  v.  Granger,  4  Gilman,  69  ;  and  in 
Leflore  v.  Justice,  1  S.  &  M.  381,  where 
it  is  said  that  every  person  who  contracts 


1 


CIL  v.] 


WARRANTY. 


-470 


applied  to  those  where  a  special  thing  is  ordered,  although  this 
be  intended  for  a  special  purpose.  For  if  the  thing  is  itself 
specifically  selected  and  ordered,  there  the  purchaser  takes  upon 
himself  the  risk  of  its  effecting  its  purpose.  But  where  he 
orders  a  thing  for  a  special  purpose,  or  to  do  a  specific  work, 
there  he  puts  this  risk  upon  the  person  who  is  to  supply  the 
thing,  (iv) 


to  do  a  piece  of  work,  impliedly  undcr- 
uxkiss  to  apply  sufficient  skill  and  dexter- 
ity to  its  peribrmancc  to  coni})lcte  it  in  a 
just  and  workmanlike  manner.  So  in 
'Howard  r.  Hoey,  23  Wend.  .'351,  the  dis- 
tinction between  manufactured  articles  and 
others  is  recognized.  Sec  also,  Hart  v. 
Wriglit,  17  Wend.  267,  18  id.  449. 

(w)  "If  a  man  says  to  another,  '  Sell 
me  a  liorsc  fit  to  carry  me  "  and  the  other 
sells  a  horse  which  he  knows  to  be  unfit  to 
ride,  he  may  be  liable  for  the  consequences  ; 
but  if  a  man  says,  '  Sell  me  that  gray  horse 
to  ride,'  and  the  other  sells  it,  knowing 
that  the  former  will  not  be  able  to  ride  it, 
that  would  not  make  him  liable."  Maiilc, 
J.,  in  Keates  v.  Cadogan,  2  E.  L.  &  E.  11. 
320.  Sec  also.  Chanter  v.  Hopkins,  4  M. 
&  W.  399,  which  fully  establishes  the  dis- 
tinction taken  in  the  text,  and  is  a  leading 
case  on  the  subject.  There  the  defendant 
sent  to  the  jjlaintitf,  the  patentee  of  an  in- 
vention, known  as  "  Chanter's  smoke-con- 
suming furnace,"  the  following  written 
order  :  "  Send  me  your  i)atent  hopper  and 
apparatus,  to  fit  up  mj*  brewing  copper  with 
your  smoke-consuming  furnace.  Patent 
right,  .£15  15.S. ;  ironwork  not  to  exceed 
.£.5  5.'?.  ;  engineer's  time  fixing,  7.s.  Gd. 
per  day."  The  plaiiitilf  accordingly  put 
up  on  the  defendant's  jjremises  one  of  his 
patent  furnaces,  Iiut  it  was  found  not  to 
be  of  any  use  for  tlie  ])urposes  of  brewery, 
and  was  returned  to  the  ])laintirt'.  It  wjis 
held,  (no  fraud  being  imputed  to  the  plain- 
tiff,) tliiit  there  was  not  an  imj)lied  war- 
ranty on  his  ])art  that  the  furnaio  supplied 
should  be  lit  for  the  purposes  of  brewery; 
but  that,  the  defendant  having  defined  by 
the  oriler  the  jiarticular  machine  to  be 
sup|)lied,  the  plaintift'  lurfornied  his  jiart 
of  tile  contract  by  sui)|iiying  that  machine, 
and  was  entitled  to  recover  the  whole  .£15 
15s.,  the  price  of  the  patent  rigiit.  IJliictt 
<•.  Osborne,  1  Stark.  384,  siipi>orts  this 
distinction.  In  that  case  the  plaintiff  sold 
the  defendant  a  bowsprit.  It  appeared  at 
the  time  to  be  in  every  respect  good  and 
jieifect.     The  defendant  had  an)i)le  oppor- 


tunity to  inspect  it.  Soon  after  the  bow- 
sprit wa.s  cut  up  and  found  to  be  rotten. 
The  defendant  resisted  payment,  on  tlie 
ground  that  there  was  an  iin))lied  war- 
ranty by  the  vendor  that  the  article  should 
be  made  of  good  and  sutficient  materials. 
No  fraud  was  attributed  to  the  vendor. 
The  defence  was  not  sustained,  and  the 
plaintilf  had  a  verdict  for  the  whole  price. 
Here  there  was  a  sale  of  a  sprcijic  chattel 
—  intended,  it  is  true,  for  a  particular  pur- 
pose by  the  purchaser,  but  not  furnished 
or  made  for  that  purpose  by  the  vendor. 
See  also,  Gray  v.  Cox,  4  B.  &  C.  108  ; 
Dickson  ^^  Jordan,  11  Ired.  IG6;  Burns 
i\  Fletcher,  2  Cart.  (Ind.)  372. —It  has 
been  very  generally  supposed  that  in  all 
sales  of  provisions  there  is  an  implied  war- 
ranty that  they  arc  wholesome.  But  it 
seems  now  to  be  well  settled  that  such  im- 
plied warranty  must  be  confined  to  those 
eases  where  provisions  are  sold  for  imme- 
diate domestic  use.  Moses  v.  Mead,  1 
Denio,  378.  And  it  seems  not  to  matter 
that  they  are  purchased  for  domestic  use, 
unless  they  were  exposed  to  sale  for  that 
purpose,  or  the  seller  was  a  provision 
detdir.  Burnby  v.  Bollett,  IG  M.  &  W. 
644.  In  this  case  A,  a  farmer,  bought  in 
the  ]nilili('  market  of  a  country  town,  from 
B,  a  butclicr  keeping  a  stall  there,  the 
carcass  of  a  dead  pig  for  consumption,  and 
left  it  hangiiig  up,  intending  to  return 
after  completing  other  business  and  take  it 
away.  In  his  absence,  C,  a  farmer,  see- 
ing it  and  wishing  to  buy,  was  refcnvd  to 
A  .as  the  owner,  and  subsequently,  on  the 
same  day,  bought  it  of  A,  the  original 
buyer,  without  any  warranty.  It  did  not 
ajjpear  that  any  secret  defect  in  it  was 
known  to  any  of  the  ])arties.  It  turned 
out  to  be  unsound,  and  unlit  for  human 
consiuTiption.  It  was  luld  that  no  war- 
ranty of  soundness  was  implied  by  law 
between  the  farmers  A  and  C.  See  also, 
Van  Bracklin  r.  Fonda,  12  Johns.  468; 
Emerson  v.  Bri^ham,  10  Mass.  197  ;  Hart 
V.  Wright,  17  Wend.  267,  18  id.  449; 
Winsor  v.  Lombard,  18  Pick.  57;  Hum- 

[495] 


471-*472 


THE   LAW   OF   CONTRACTS. 


[book  hi. 


But  whatever  may  be  the  law  as  to  an  implied  warranty  that 
personal  property  bought  and  sold,  or  ordered  and  manufac- 
tured for  a  particular  purpose,  shall  be  reasonably  fit  for  such  a 
purpose,  —  no  such  rule  applies  to  real  estate.  It  seems,  indeed, 
to  be  quite  well  settled,  that  in  a  lease  or  purchase  of  a  house 
and  land,  there  is  no  implied  warranty  that  it  shall  be  reason- 
ably fit  for  habitation,  occupation,  or  cultivation  ;  still  less  that 
it  shall  be  fit  for  the  purpose  for  which  it  was  taken,  (x) 

No  warranty  can  be  implied  from  circumstances,  if  there  be 
an  express  refusal  to  warrant,  (y)  And  where  the  contract  of 
sale  is  in  writing,  and  contains  no  warranty,  there  parol  evi- 
dence is  not  admissible  to  add  a  warranty,  (z)     And  *if  there 


phreys  v.  Comeline,  8  Blackf.  508.  —  If 
an  innkeeper  agree  with  a  brewer  to  take 
all  his  beer  of  iiim,  he  is  bound  to  furnish 
him  with  beer  of  a  wholesome  quality. 
Holcombe  v.  Hewson,  2  Camp.  391  ;  Coo- 
per i:  Twihill,  3  Camp.  286. 

(;r)  Hart  v.  Windsor,  12  M.  &  W.  68 ; 
Sutton  V.  Temple,  12  M.  &  W.  52,  where 
the  subject  is  very  ably  examined  and 
discussed.  In  the  last  case,  A  hired  in 
writing  the  eatage  of  twenty-four  acres  of 
land  from  B  for  seven  montlis  at  a  i"ent  of 
£40,  and  stocked  the  lands  with  beasts, 
several  of  whicli  died  a  few  daj's  after- 
wards, from  the  effect  of  a  poisonous  sub- 
stance which  had  been  accidentally  spread 
over  the  land  without  B's  knowledge. 
Seld  tliat  A  could  not  abandon  the  land 
for  breach  of  an  implied  contract  in  B, 
but  continued  liable  for  the  whole  rent. 
These  decisions  may  be  in  conflict  with, 
and  if  so,  doubtless  overrule,  the  case  of 
Smith  V.  Marrable,  11  M.  &  W.  5,  where 
it  was  held  that  in  a  lease  of  a  house  and 
furniliire  for  a  temporary  residence  at  a 
watering-place,  and  where  the  furniture 
formed  tlie  greater  part  of  the  considera- 
tion of  the  contract,  there  was  an  im])licd 
warranty  that  the  house  and  furniture 
should  be  fit  for  the  purpose  for  wliich  it 
was  liii-ed ;  and  Lord  Aliiiu/cr,  in  Sutton 
V.  Temple,  attempted  to  distinguish  the 
two  cases.  The  other  judges,  liowever, 
were  inclined  to  tliink  botli  in  Su.tton  r. 
Temple,  and  Hart  i\  Windsor,  that  SmJth 
V.  Marrable  coald  not  be  supported.  And 
the  same  mav  be  said  of  Edward.s  v.  Eth- 
erinicton,  Ry'  &  M.  268,  7  D.  &  R.  117  ; 
Collins  v.  Barrow,  1  M.  &  Rol).  112; 
Salisbury  v.  Marshall,  4  C.  &  P.  65.  The 
doctrine  of  the  text  is  sustained  also  in 
[496] 


two  recent  cases  in  INIassachusetts.  Thus, 
in  Button  v.  Gerrisli,  4  Law  Reporter,  N. 
S.  516,  the  defendant  being  the  owner  of 
a  store  in  April,  1849,  leased  the  same  to 
the  plaintiffs,  M'ho  filled  it  with  dry  goods. 
In  June,  1849,  the  roof  and  walls  of  the 
store  fell  in,  and  buried  the  plaintiff's 
goods  in  the  ruins ;  and  to  recover  the 
price  of  these  goods  the  plaintifi's  brought 
their  action.  The  lease  of  the  plaintiffs 
contained  no  express  wan-anty  that  the 
building  was  fit  for  a  dry  goods  ware- 
house, or  for  any  other  purpose.  The 
plaintiffs  disclaimed  any  imputation  of 
fraud  or  misrepresentation  on  the  part  of 
the  defendant.  The  court  held  that  as 
the  lease  contained  no  express  warranty, 
the  plaintiff's  could  not  recover,  there  be- 
ing no  warranty  implied  in  law  on  the 
part  of  the  lessor  of  real  estate,  that  it  is 
fit  or  suitable  for  the  purposes  for  which 
it  is  leased  or  occupied.  They  also  held 
that  decisions  in  reference  to  leases  of 
furnished  lodgings,  and  to  warranties  im- 
plied ujion  the  sale  of  goods,  were  not  ap- 
plicable to  this  case.  The  same  doctrine 
is  held  in  Foster  v.  Peyser,  5  Law  Re- 
porter, N.  S.  155.  See  also,  the  learned 
note  to  this  last  case,  where  the  authorities 
on  this  point  are  reviewed.  See  also,  ante, 
p.  422,  n.  (,y) 

(ij)  Rodrigues  v.  Habersham,  1  Spears, 
314.  See  also  By  water  v.  Richardson,  1 
Ad.  &  El.  508  ;  Atkins  v.  Howe,  18  Pick. 
16. 

(z)  This  was  distinctly  adjudged  in  Van 
Ostrand  v.  Reed,  1  Wend.  424.  It  rests 
u])on  the  familiar  principle  that  the  writ- 
ing is  supposed  to  contain  all  tlie  contract. 
Reed  r.  Wood,  9  Verm.  285;  Mamibrd 
V.  McPherson,   1  Johns.  414;  Wilson  r. 


CH.    v.] 


WARRANTY. 


-472 


be  a  warranty  in  writing,  it  cannot  be  enlarged  or  varied  by 
parol  evidence,  (a).  But  although  there  be  a  writing  between 
the  parties,  if  it  does  not  amount  to  a  contract  of  sale,  as  if  it 
be  an  ordinary  bill  of  sale,  merely  intended  as  an  acknowledg- 
ment of  the  receipt  of  the  price,  then  it  seems  that  parol  evi- 
dence is  admissible  to  show  the  actual  terms  of  the  sale,  and 
that  there  was  a  warranty,  (aa) 

Ships  often  are,  and  any  property  may  be,  sold  "with  all 
faults."  This  is  an  emphatic  exclusion  of  all  warranty.  But  it 
gives  the  seller  no  right  to  commit  a  fraud,  nor  will  it  prevent 
the  sale  from  being  avoided  on  proof  of  fraud.  And  it  is  fraud 
if  the  seller  conceals  existing  faults,  and  draws  the  attention  of 
the  buyer  away  so  as  to  prevent  his  discovering  them,  or  places 
the  property  in  such  circumstances  that  discovery  is  impossible, 
or  made  very  difficult,  (b) 


M.irsh,  1  Johns.  503  ;  Lamb  v.  Crafts,  12 
Met.  .1.').3  ;  Dean  v.  Mason,  4  Conn.  43-2  ; 
Kandall  v.  Rhodes,  1  Curti.s  90. 

(a)  Kain  c.  Old,  2  B.  &  C.  634;  Piek- 
cring  V.  Duwson,  4  Taunt.  T79  ;  Pender  r. 
Fobes,  1  Dev.  &  Batt.  2.^30  ;  Smith  c.  Wil- 
liams, I  Mnrpli.  426.  —  So,  an  express 
warranty  will  not  be  extended  by  impli- 
cation from  other  parts  of  the  contract  in 
\\hich  it  occurs.  Dickson  v.  Zizinia,  2  E. 
L.  1.^  E.  314.  In  tins  case  the  declaration 
stated  that  the  defendants  sold  to  the 
j)lainti(f  a  cargo  of  corn  then  shipped  at 
Orfano  on  board  the  0.,  at  a  certain  price, 
including  freight  to  Cork,  Liverpool,  or 
London ;  that  it  was  agreed  that  the 
quality  should  be  of  a  certain  average,  and 
that  the  corn  had  been  shii^pcd  on  boanl 
in  good  and  merchantable  condition. 
Breach,  that  it  was  not  shipped  in  good 
and  mcrdiantable  condition  for  the  per- 
formance of  the  said  voyage.  ILld,  that 
it  was  a  misdirecliou  to  ask  the  jur}' 
whether  the  vorn  was  good  and  merihanta- 
ble  for  a  foreign  voj'age.  And  Maulc,  J., 
said :  "  It  would  be  most  mischievous 
to  superadd  a  tacit  condition  relating  to  a 
circumstance  provided  for  by  the  express 
Words  of  the  ])arties.  If  a  man  sold  a 
horse  and  warranted  it  sound,  and  the 
vendor  knew  that  it  wa.s  intended  to  carry 
a  lady,  .nnd  the  horse  wa,s  sound,  but  was 
not  lit  to  carry  a  lady,  there  would  be  no 
breach.  So,  with  respect  to  any  other 
warranty,  the  maxim  to  be  ajiplied  is, 
'  txpnssum  fucit   cessare  taciturn.'      Were 

42* 


the  law  otherwise,  it  would  very  much 
infringe  on  the  liljcrty  of  parties  making 
contracts.  It  would  in  sucli  case  be  neces- 
sary ti;  express  tliat  it  is  not  intended  to 
go  beyond  the  language  employed.'-' 

(an)  Allen  v.  Pink,  4  M.  &W.  140; 
Ilersom  r.  Henderson,  1  Foster,  224; 
Ilogins  i'.  Plvmpton,  11  Pick.  97  ;  Brad- 
ford r.  Manly,  13  :\Iass.  142.  So,  parol 
proof  is  admissible  to  show  a  usage  of 
trade  as  to  the  mode  of  making  sales,  the 
written  memorandum  and  bought  and  sold 
note  being  silent  upon  the  subject.  Boor- 
man  V.  Jenkins,  12  Wend.  .507.  And  to 
prove  that  the  vendor  informed  the  vendee 
at  the  time  of  sale  of  the  defect  com- 
plained of.  Schuyler  v.  lluss,  2  Caincs, 
202. 

(/»)  Bagleholc  v.  Walters,  3  Camp.  154, 
is  a  leading  ca.sc  on  this  subject.  It  was 
there  hcltl,  that  if  a  shij)  is  sold  "  with  all 
faults,"  the  seller  is  not  liable  for  latent 
defects,  which  he  kii<  ic  of,  but  did  not  dis- 
close at  the  time  of  sale,  unless  he  used  some 
atiijice  to  coiicml  th<  in  from  the  purchaser. 
The  ca.sc  of  Mellish  r.  Mottcau,  Pcakc, 
115,  where  u  contrary  rule  was  adopted 
by  Lord  Kcni/on,  was  cited,  but  Lord  Ellen- 
l>i>ruw;h  said  :  "  I  cannot  subscribe  to  the 
doctrine  of  that  case."  See  also,  Picker- 
ing r.  Dowson,  4  Taunt.  785.  The  doc- 
trine of  the  text  was  laid  down  by  JAihs- 
Jicld,  C.  J.,  in  Schneider  r.  Heath,  .3  Camp. 
508.  A  ship  was  sold,  "  to  be  taken  with 
all  faults."  Her  bottom  was  worm-eaten, 
and  her  keel  broken.     When  the  ship  was 


473*-474* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


*There  has  been  much  question  as  to  what  is  a  breach  of  the 
warranty  of  soundness;  and  what  are  the  rights  and  remedies 
of  a  party  who  bought  with  warranty,  which  warranty  has 
been  broken.  For  an  answer  to  the  first  question  we  will  refer 
to  the  definitions  and  illustrations  in  our  notes,  (c)  On  the 
second  point,  it  may  be  gathered  from  the  somewhat  conflict- 
ing authorities,  first,  that  the  buyer  may  bring  his  action  at 
once,  founding  it  upon  the  breach  of  warranty,  without  return- 
ing the   goods ;   but  his   continued    possession  *of  the  goods 


advertised  for  sale,  the  captiiin  took  her 
from  the  ways  and  kept  lier  constantly 
afloat,  so  that  these  defects  were  com- 
pletely concealed  by  the  water.  This  was 
lidd  to  be  a  fraud  upon  tlie  pureliaser,  and 
the  sale  was  avoided.  A  similar  principle 
was  applied  in  Fletcher  v.  Bowsher,  2 
Stark.  .561,  where  a  vendor  of  a  ship 
represented  her  to  have  been  l)Hilt  in  1816, 
when  she  had  in  fact  been  launched  the 
year  before.  She  was  sold  "  with  all 
faults,  as  tiiey  now  are,  without  any  allow- 
ance/o/-  anij  defect  whatsoever."  The  sale 
was  held  void.  But  in  all  these  cases 
actual  fraud  in  the  vendor  must  be  proved 
in  order  to  render  him  liable.  See  Fi-ce- 
man  v.  Baker,  5  B.  &  Ad.  797 ;  Early  i*. 
Garrett,  9  B.  &  C.  928.  As  to  the  con- 
struction of  contracts  of  the  kind  men- 
tioned in  tlie  text,  see  Fi-eeman  v.  Baker, 
supra ;  Shepherd  v.  Kain,  5  B.  &  Aid. 
240;  Taylor  v.  Bullen,  1  E.  L.  &  E.  472. 
(c)  The  question  has  been  often  raised, 
what  is  soundness  or  unsoundness  in  a 
horse  or  other  animal,  sold  with  a  war- 
ranty of  soundness.  The  sulyect  was  ably 
examined  in  Ividdell  v.  Burnard,  9  M.  & 
W.  668.  Farke,  B.,  there  said:  "The 
rule  as  to  unsoundness  is,  that  if  at  the 
time  of  sale  the  animal  has  any  disease, 
which  either  actiuiUy  does  diminish  the 
natural  usefulness  of  the  animal,  so  as  to 
make  him  less  capable  of  work  of  any 
description,  or  which,  in  its  ordinary 
progress,  will  diminish  the  usefulness  of 
the  animal ;  or  if  he  has,  either  from 
disease  or  accident,  undergone  any  altera- 
tion of  structure,  that  either  actually  does 
at  the  time,  or  in  its  ordinary  ctl'ect  will 
diminish  his  natural  usefulness,  such  ani- 
mal is  unsound."  See  also  Coates  v. 
Stephens,  2  M.  &  Rob.  157;  Elton  v. 
Jordan,  1  Stark.  127  ;  Elton  v.  Brogden, 
4  Camp.  281.  So  if  a  horse  has  at  the 
time  of  sale  the  seeds  of  disease,  which  in 
its   ordinary  progress   will   diminish   his 

[498] 


natur.al  usefulness,  this  is  unsoundness. 
Kiddcll  V.  Burnard,  9  M.  &  ^Y.  668.  But 
a  temporary  and  curable  injury,  although 
existing  at  the  time  of  sale,  //  It  does  not 
injure  the  animal  for  present  sercice,  is  not 
an  unsoun<lness.  Roberts  i>.  Jenkins,  1 
Foster,  116.  It  seems  to  be  immaterial 
whether  the  injur}"^  be  permanent  or  tem- 
porary, curable  or  incurable,  if  it  render 
the  animal  less  fit  for  present  usefulness 
and  convenience.  Roberts  v.  Jenkins, 
siqyra ;  Elton  v.  Brogden,  4  Camp.  281  ; 
Elton  V.  Jordan,  1  Stark.  127  ;  Kornegay 
V.  White,  10  Ala.  225.  But  see  Garment 
V.  BaiTS,  2  Esp.  673.  Roariiu/  has  been 
held  to  be  au  unsoundness.  Onslow  v. 
Eames,  2  Stark.  81  ;  contra,  Bassett  v. 
Collis,  2  Camp.  523.  But  "crib-biting" 
has  been  held  not  to  be  an  unsoundness. 
Broennenburgh  v.  Haycock,  Holt,  X.  P. 
630.  If  not  an  unsoundness,  it  is  a  "  vice," 
and  if  a  horse  is  warranted  free  from  vice, 
it  is  a  breach  of  the  warranty.  Baul  v. 
Hardwick,  Chitty  on  Cont.  403,  n.  (r.) 
A  "  bone-spavin "  is  an  unsoundness. 
Watson  V.  Denton,  7  C.  &  P.  85.  A 
nerved  horse  is  unsound.  Best  v.  Osborne, 
Ry.  &  M.  290.  But  a  defective  fornuition, 
or  badness  of  shape,  which  has  not  pro- 
duced lameness  at  the  time  of  sale,  al- 
though it  may  render  the  horse  liable  to 
become  lame  at  some  future  time,  (e.  ij. 
"curby  hocks,")  is  not  an  unsoundness. 
Brown  v.  Elkington,  8  M.  &  W.  132.  See 
also  Dickinson  v.  Follett,  1  M.  &  R.  299. 
The  "navicular  disease"  is  an  unsound- 
ness. Matthews  v.  Parker,  Olijiliant's  Law 
of  Horses,  228.  So  of  "  thickwiiid."  Al- 
kinson  v.  Horridge,  id.  229.  "  Ossifica- 
tion of  the  cartilages."  Simpson  v.  Potts, 
224.  The  question  of  soundness  or  un- 
soundjiess  is  particularly  for  the  jury; 
and  the  court  will  not  set  aside  a  verdict 
on  account  of  a  preponderance  of  the  tes- 
timony the  other  way.  Lewis  v.  Peak,  7 
Taunt.  153. 


CH.  v.] 


CONSIDERATION. 


-474 


and  their  actual  value  would  be  considered  in  estimating  the 
damages,  (d)  Secondly,  he  may  return  the  goods  forthwith, 
and  if  he  does  so  without  unreasonable  delay,  this  will  be  a 
rescinding  of  the  sale,  and  he  may  sue  for  the  price  if  he  has 
paid  it,  or  defend  against  an  action  for  the  price,  if  one  be 
brought  by  the  seller.  And  if  the  vendor  refuses  to  receive  the 
goods  back,  when  tendered,  the  purchaser  may  sell  them;  and 
if  he  sells  them  for  what  they  are  reasonably  worth,  and  within 
a  reasonable  time,  he  may  recover  of  the  vendor  the  loss  upon 
the  resale,  with  the  expense  of  keeping  the  goods  and  of  selling 
them,  (dd)  We  should  say,  on  the  reason  of  the  thing,  that  if 
the  buyer  sells  the  goods  with  all  proper  precautions  as  to  time, 
place,  and  manner,  to  insure  a  fair  sale,  the  vendor  will  be 
bound  by  the  price  the  goods  bring,  whether  that  be  in  fact 
equal  to  their  value  or  not;  but  this  may  not  yet  be  established 
by  adjudication.  If  he  has  a  right  to  return  the  goods,  his 
tender  of  them  completes  his  right  to  sue  for  the  price,  whether 


(fl)  Fielder  v.  Starkin,  H.  Bl.  17,  a  Icad- 
injj  case  iijion  this  point.  A  ucLrlcct  to 
inlbrni  the  VL-ndor  of  the  discovered  hreacli 
of  the  warranty  for  several  montlis  after 
the  sale,  will  not  bar  the  purchaser's  rh^ht 
to  an  action  for  breach  of  warrantv.  Pate- 
shall  V.  Tranter,  3  Ad.  &  El.  10.3."  Kutter 
!;.  Ulake,  2  II.  &,  Johns.  .3.j;3,  is  a  strong 
Aincricau  case,  that  an  action  may  lie 
maintiiined  for  breach  of  warranty  without 
rcturnin<r  tiic  goods,  but  it  was  iiere  held 
that  the  purchaser  ought  to  give  the  ven- 
dor notice  where  tlie  goods  were  deposited. 
In  Kellogg  !'.  Ue'nslow,  14  Conn.  411, 
where  tlie  autliorities  are  very  elaboratel}- 
anil  critically  examined  by  Shcrinan,  •)., 
the  rule  of  tlie  te.xt  is  adopted.  There  A 
agreed  to  furnish  B  with  sundry  articles 
of  machinery,  to  be  delivcred.subseipicntly, 
and  to  be  free  from  defect.  A  delivered 
the  articles  accordingly,  whiih  were  re- 
ceived and  used  by  B  for  nearly  a  year, 
without  notice  to  A  of  any  defects  therein. 
In  an  action  brought  by  B  against  A  on 
the  warranty,  claiming  damages  for  defects 
iu  tlie  articles  at  the  time  of  delivery,  it 
was  hvkl  that  the  effect  of  B's  not  having 
given  notice  of  such  defects  in  a  rea,<ona- 
ble  time,  was,  that  he  had  thereby  jitlirmecl 
the  comract,  l)ut  such  omission  constituted 
no  defence  to  tlic  action,  which  assumed 
tlie  sul)sistencc  of  the  contract.  See  also 
Waring  r.  Mason,  18  Wend.  425  ;  Thomp- 


son V.  Botts,  8  Missouri,  710 ;  Borrekins  i-. 
Bevan,  3  Rawle,  23  ;  Co/./ins  v.  Wliitaker, 
3  Stew.  &  Port.  322 ;  Carter  c.  Steimel, 
10  B.  Monroe,  250;  Parker  v.  Pringle,  2 
Strobhart,  242;  Milton  v.  Rowland,  11 
Ala.  732;  Ferguson  v.  Oliver,  8  S.  &  M. 
332.  The  weight  of  modern  authority  is 
decidedly  in  favor  of  the  rule  of  the  text, 
that  an  action  lies  for  brearh  of  a  war- 
ranty, exjiress  or  inii>lied,  without  return- 
ing the  property,  or  giving  any  notice  of  the 
defect.  In  Hills  r.  Bannister,  8  Cow.  31, 
A  sold  B  a  bell,  warranting  it  not  to 
crack  witliin  a  year,  and  promising  to  re- 
cast it  if  it  did.  He  was  Iwld  not  liable  on 
his  warranty,  witiiout  notice,  and  neglect 
to  recast  it.  Of  course,  if  the  purchiiser 
has  not  returned  the  goods,  their  real 
value  will  be  deducted  from  his  damages  ; 
the  difference  between  the  price  paid,  or 
to  be  paid,  and  the  real  value,  being  the 
measure  of  damages.  Caswell  r.  Core,  1 
Taunt.  5GG  ;  Gcnnaine  v.  Burton,  3  Stark. 
32;  Carv  r.  Gruinan,  4  Hill,  t)25;  Voor- 
hees  V.  Earl,  2  Hill,  283;  Comstock  v. 
Hutchinson,  10  Barb.  211. 

((/(/)  Chesterman  r.  Lamb,  2  Ad.  &  El. 
12!);  McKeiizie  r.  Hancock,  Kv.  t^  Mood. 
436  ;  Maclean  v.  Dunn.  4  Biug.  722,  b<st, 
C.  J. ;  Woodward  v.  Thaclier,  21  Wrm. 
580;  Buftington  i-.  Quantiii,  17  Pcnn. 
310. 

[499] 


475* 


THE  LAW    OF  CONTRACTS. 


[book   III. 


the  vendor  receives  them  or  not  [e]  But  some  authorities  of 
great  weight  limit  his  right  to  return  the  goods  for  breach  of 
warranty  to  cases  of  fraud,  or  where  there  was  an  express 
agi'eeraent  to  that  effect  between  the  parties.  (/) 

*In  general,  when  a  buyer  asserts  that  the  goods  he  pur- 
chased are  not  what  they  were  warranted  to  be,  or  are  so  differ- 
ent from  what  he  ordered,  or  from  the  seller's  representation  of 
them,  or  from  the  quality  and  value  such  articles  should  pos- 
sess, as  to  give  him  a  right  to  rescind  and  avoid  the  sale,  he 
must  forthwith  return  the  goods  if  he  would  exercise  this  right. 
Delay  in  doing  so,  or  any  act  equivalent  to  acceptance,  em- 
ployment, or  disposition  of  the  goods,  after  he  knows  or  should 
know  their  deficiency,  if  it  exists,  would  be  construed  either 
into  an  admission  that  there  was  no  such  deficiency,  or  into  a 
waiver  of  his  right  to  rescind  the  sale  because  of  such  defi- 
ciency, (g) 


(e)  Washington,  J.,  in  Thoi'iiton  v. 
Wynn,  12  Wheat.  193. 

(/)  See  Carter  v.  Walker,  2  Richard- 
son,  40.  This  is  the  rule  in  New  York. 
Gary  v.  Griiman,  4  Hill,  62.5  ;  Voorhees 
V.  Earl,  2  Hill,  288.  In  Kentucky,  Lif,rht- 
burn  V.  Cooper,  1  Dana,  27.3.  In  the 
United  States  Courts,  Thornton  v.  Wynn, 
12  Wheat.  183.  In  I'ennsylvania,  Kase 
V.  John,  10  Watts,  107.  In  Tennessee, 
Allen  V.  Anderson,  3  Humph.  5S1.  It 
has  been  said  this  is  the  English  rule.  See 
Street  r.  Ehiy,  2  B.  &  Ad.  4.56  ;  Gom- 
pertz  V.  Denton,  1  Cr.  &  M.  207  ;  Parson 
i\  Lexton,  4  C.  B.  899 ;  Ollivant  r.  Bav- 
Icy,  5  Q.  B.  288  ;  Dawson  v.  Collis,  "4 
Eng.  Law  &  Eq.  338.  And  in  an  action 
brought  for  the  price  of  goods  sold  or  ser- 
vices performed,  the  defendant  may  reduce 
the  damages  by  showing  a  breacli  of  war- 
ranty on  the  part  of  the  plaintiff.  Allen 
V.  Hooker,  25  Verm.  137. 

{</)  Thus,  in  Milner  v.  Tucker,  1  C.  & 
P.  15,  a  i)crson  contracted  to  supply  a 
chandelier,    sufficient   to   light   a    certain 

[  500  ] 


room.  Tlie  purchaser  kept  the  chandelier 
six  months,  and  then  returned  it ;  lie  was 
held  lialile  to  pay  for  it,  although  it  was 
not  according  to  the  contract.  So  in  Cash 
V.  Giles,  3  C.  &  P.  407,  a  threshing 
machine  was  kept  several  years,  witliout 
complaint,  but  only  used  twice ;  the  ven- 
dee was  held  liable  for  the  price,  although 
it  was  of  little  or  no  value.  And  in  Pcr- 
cival  V.  Blake,  2  C.  &  P.  514,  keeping 
property  two  months  without  objection 
was  Jield  to  be  an  acceptance,  and  the  pm*- 
chaser  was  bound  to  pay  for  it,  there  being 
no  fraud.  See  Grimaldi  v.  White,  4  Esp. 
95;  Groning  v.  Mendham,  1  Starkie,  257  ; 
Hopkins  r.  Appleby,  1  Starkie,  477  ;  Kel- 
logg V.  Denslow,  14  Conn.  411.  Keeping 
a  waixanted  article  for  a  length  of  time 
without  objection,  and  selling  part,  is  evi- 
dence tending  to  prove  that  it  corresponded 
with  the  warranty.  Prosser  v.  Hooper,  1 
Moore,  106.  But  the  delay  must  take 
place  after  the  discovery  of  the  deficiency 
in  the  goods.  Clements  v.  Smith's  Ad- 
ministrators, 9  Gill,  156. 


CH.  VI.] 


STOPPAGE   IX   TRANSITU. 


476-*477 


CHAPTER  VI. 


STOPPAGE   IN   TRANSITU. 


If  a  vendor,  who  has  sent  goods  to  a  purchaser  at  a  distance, 
finds  that  the  purchaser  is  insolvent,  he  may  stop  the  goods  at 
any  time  before  they  reach  the  purchaser.  This  right  is  called 
the  right  of  stoppage  in  transitu. 

This  right  exists,  strictly  speaking,  only  when  the  vendor  has 
parted  with  the  goods.  If  they  have  never  left  his  possession, 
he  has  a  lien  on  them  for  the  full  payment  of  their  price ;  but 
not  this  right  of  stoppage,  (h)  * 

Insolvency  is  necessary  to  create  this  right;  but.it  is  not 
perfectly  well  settled  what  constitutes,  for  this  purpose,  insol- 
vency. It  would  seem,  however,  that  it  should  be  not  merely 
a  general  inability  to  pay  one's  debts;  but  the  having  taken 
the  benefit  of  an  insolvent  law,  or  a  stoppage  of  payment,  or  a 
failure  evinced   by  some  overt  act.  (/)      Or,  as  it  *has  been  de- 


(A)  Parks  i'.  Hall,  2  Pick.  212.  As  to 
the  (liflforcnce  between  tliosc  rights,  sec 
MeEwan  r.  Smith,  2  House  of  Lords 
Ca.ses,  309.  Sec  also,  Gibson  v.  Carruth- 
ci-s,  8  M.  &  W.  321  ;  Jones  r.  Bradner, 
10  Barb.  1!)3. 

(/)  In  Ro<,rcrs  c.  Thomas,  20  Conn.  .54, 
StoiTs,  J.,  on  the  meaning  of  the  ])in'a>e 
insolvency,  said :  "  The  cases  on  tliis 
subject  s^'nerally  mention  insolvency  as 
one  of  the  conditions  on  wiiich  the  ri;rlit 
of  stoppace  in  traiisilii  accrues  ;  but  they 
are  wholly  silent  a.s  to  witat  constitutes 
such  insolvency ;  and  therefore  its  sense, 
as  tiius  used,  is  to  be  jxathercd  from  the 
circumstances  of  the  cases.  For  it  is  a 
term  which  is  u.sed  with  various  meajnnjrs. 
In  a  technical  sense  it  denotes  tiic  havin;r 
taken  the  liencfit  of  an  insolvent  law ;  in 
the  popular  sense,  a  general   inability  to 


pay  debts;  and  in  a  mercantile  sense,  a 
stoi)]iay;c  of  payment,  or  failure  in  one's 
circumstances,  as  evinced  liy  some  overt 
act.  Tiiat  a  technical  insolvency  i.s  suffi- 
cient to  authorize  the  exercise  of  the  right 
of  stoppage  in  fransiUi  has  always  been 
conceded.  That  it  is  not  indis])ensablc 
for  tliat  pui-pose  is  efpially  clear.  Mr. 
Smith,  in  his  Cominiulium  of"  Mcrcttiitile 
Lair,  p.  549,  n.,  expresses  his  belief  that 
merchants  have  very  generally  acted  as 
if  the  right  to  stop  goods  was  not  post- 
poned till  the  oi'currcncc  of  insolvency  in 
the  technical  sense,  and  j>ertinently  adds  : 
'  The  law  of  stoppage  in  Iransitii  is  as  old, 
it  must  be  recollected,  as  IGTO,  on  the  21st 
of  March,  in  which  year  Wiseman  r.  Van- 
deput  was  decided  ;  so  that  if  inaolreuru  is 
to  be  taken  in  a  technical  sense,  the  law 
of  sto]ipage  ill  transiln  has  been  varying 

[501] 


478* 


THE    LAW    OF    CONTRACTS. 


[book   III. 


fined,  "  an  inability  to  pay  one's  debts  in  the  ordinary  course  as 
persons  generally  do."  (j) 

The  mere  insolvency  or  bankruptcy  of  the  vendee  will  not, 
per  se,  amount  to  a  stoppage  in  transitu;  for  there  must  be  some 
act  on  the  part  of  the  consignor,  indicative  of  his  intention  to 
repossess  himself  of  the  goods,  (k)  But  if  it  was  ever  con- 
sidered necessary  for  the  consignor,  or  some  one  in  his  behalf, 
to  take  actual  possession  of  the  goods,  in  order  to  perfect  and 
execute  his  right,  that  doctrine  is  now  exploded.  Notice  of  the 
consignor's  claim  and  purpose  given  to  the  carrier  before  de- 
livery is  sufficient.  (/)      This  notice  and  *demand   on  behalf  of 


with  the  varied  enactments  of  the  legis- 
lature regarding  it.'  That  stoppage  of 
payment  amounts  to  insolvency  for  this 
))urpose  is  assumed  in  many  of  the  cases. 
Lord  Ellenhoromjh,  in  Nevvsou  v.  Thorn- 
ton, 6  East,  17,  places  the  right  of  the 
vendor  to  stop  the  property  on  the  '  insol- 
vency '  of  the  consignee,  where  there  had 
been  only  a  stoppage  of  payment  by  the 
vendee,  whea  notice  was  given  to  the 
carrier,  by  the  vendor,  to  retain  the  goods. 
In  Vertue  v.  Jewell,  4  Camp.  31,  the 
terras  used  were,  '  stojDped  payment.'  See 
also,  Dixon  v.  Yates,  5  B.  &  Ad.  313- 
We  have  been  able  to  find  no  case  in 
which  the  right  of  stoppage  in  transitu  has 
been  cither  sanctioned  or  attempted  to  be 
justified  on  the  ground  of  the  insolvency 
of  the  vendee,  where  there  was  not  a  tech- 
nical insolvency,  or  a  stoppage  of  pay- 
ment, or  failure  in  circumstances,  evi- 
denced by  some  overt  act  ;  and  Mr. 
Blackburn,  in  his  Treatise  on  the  Con- 
ti-act  of  Sale,  p.  130,  where  this  subject  is 
very  minutely  examined,  says,  that  there 
seems  to  have  been  no  such  case ;  and 
adds,  that  although  the  text-books  and 
dicta  of  the  judges  do  not  restrict  the  use 
of  the  term  '  insolvent,'  or  '  failed  in  his 
circumstances,'  to  one  who  has  stopped 
payment,  there  must  be  great  practical 
difficulty  in  establishing  the  actual  insol- 
vency of  one  who  still  continues  to  pay 
his  way ;  and  as  the  carrier  obeys  the 
stoppage  in  transitu  at  his  peril,  if  the  con- 
signee he  in  fact  solvent,  it  would  seem  no 
unreasonable  rule  to  recjuire,  that  at  the 
time  the  consignee  was  refused  the  goods, 
he  should  have  evidenced  his  insolvency 
by  some  overt  act.  Mr.  Smith,  in  his 
work  which  has  been  mentioned,  clearly 
favors   the    same    view.      Comp.    Merc. 

[502] 


Law,  130,  n.  Hence,  it  appears  that  the 
authorities  and  text-writers  furnish  no 
support  to  the  claim  that  a  mere  general 
inability  to  jiay  debts,  unaccompanied 
with  any  visible  change  in  the  circum- 
stances of  the  debtor,  constitutes  insol- 
vency, in  such  a  sense  as  to  confer  the 
right  of  stoppage  in  transitu."  But  sec 
Hays  V.  Mouillc,  14  Penn.  St.  R.  51  ; 
Biddlecom])e  v.  Bond,  4  Ad.  &  El.  332; 
Naylor  t:  Denni,  8  Pick.  205  ;  Chandler 
V.  Fulton,  10  Texas,  2. 

(_;')  Thompson  v.  Thompson,  4  Cush. 
134;' Shore  v.  Lucas,  3  D.  &  E.  218; 
Bayly  v.  Schofield,  1  M.  &  S.  338  ;  Se- 
comb  V.  Nutt,  14  B.  Monroe,  326. 

(/.)  2  Kent's  Com.  543.  But  the  right 
exists  only  in  cases  of  insolvency  of  the 
vendee.  The  Constantia,  6  Rob.  Adm. 
321. 

(/)  Litt  r.  Cowley,  7  Taunt.  169 ;  Hoist 
V.  Pownal,  1  Esp.  240 ;  Newhall  v.  Var- 
gas, 13  Maine,  93.  Notice  should  be 
given,  it  seems,  to  the  carrier,  middleman, 
or  other  person  having  at  the  time  the 
actual  custody  of  the  goods ;  or  given  to 
such  a  person,  that  it  may  reach  the  car- 
rier before  delivery.  Mottram  v.  Heyer, 
5  Denio,  629.  But  in  Bell  v.  Moss,  5 
Whart.  189,  it  was  given  to  the  assignees 
of  the  consignee,  wlio  had  become  insol- 
vent, and  was  held  sufficient.  In  Northey 
V.  Field,  2  Esp.  613,  the  demand  was  on 
the  officer  of  the  custom-house,  where  the 
goods  were  stored.  Whitehead  i*.  Ander- 
son, 9  M.  &  W.  518,  is  an  important  case 
upon  this  point.  There  it  is  Itdd  that  a 
notice  of  stopi)agc  in  transitu,  to  be  efi'ect- 
ual,  must  be  given  either  to  the  person 
who  has  the  immediate  custody  of  the 
goods,  or  to  the  principal  whose  servant 
has    the   custody,   at    such   a  time,   and 


Oil.  VI.] 


STOPPAGE   IX   TRANSITU. 


-478 


the  consignor  need  not  be  made  by  any  person  specially  au- 
thorized for  that  purpose  ;  it  may  be  made  by  a  general  agent 
of  the  consignor  ;  or  even  by  a  stranger,  if  it  be  ratified  by  the 
vendor  before  the  delivery  to  the  vendee,  (m)  But  a  ratification 
of  a  notice  and  demand  by  an  unauthorized  person,  not  made 
until  after  delivery  to  the  vendee,  will  not  suffice,  (n) 

The  question  has  been  raised  when  the  insolvency  may  take 
place,  in  order  to  give  this  right ;  that  is,  whether  the  right 
exists  by  reason  of  an  insolvency  before  the  sale;  and  it  was 
held  that  the  insolvency  must  take  place  between  the  time  of 
the  sale  and  that  of  the  exercise  of  the  right  of  stoppage,  (o) 


under  such  circumstances,  as  tliat  he 
may  by  the  exercise  of  reasonahlc  dili- 
gence communicate  it  to  his  servant,  in 
time  to  prevent  the  delivery  to  the  con- 
signee. Therefore,  where  timber  was 
sent  from  Quebec,  to  be  delivered  at  Port 
Fleetwood  in  Lancashire,  ii  notice  of  stop- 
page given  to  the  shipowner  at  Montrose, 
while  the  goods  were  on  their  voyage, 
whercu|)on  he  sent  a  letter  to  await  tlie 
arrival  of  the  captain  at  Fleet  wood,  di- 
recting liim  to  deliver  the  cargo  to  the 
agents  of  the  vendor — was  held  not  to 
be  a  sufficient  notice  of  stoppage  in  transitu. 

(ni)  Whitehead  >•.  Anderson,  9  M.  & 
W.  518;  Bell  v.  Moss,  5  Whart.  189; 
Ncwhall  V.  Vargas,  13  Maine,  93. 

(n)  liird  v.  Brown,  4  Fxch.  li.  786. 

(o)  Hogcrs  V.  Thomas,  20  Conn.  53,  a 
very  able  ca.se  on  this  point.  As  this 
([ucstion  seems  to  have  been  first  raised 
in  this  case,  we  give  the  langiuv^e  of  Starrs, 
J. :  "  The  remaining  incjtiiry  respects  the 
time  wlien  such  insolvency  must  occur,  in 
order  to  confer  this  right.  On  this  point 
we  are  of  opinion  that  it  is  not  sufficient 
it  exists  when  the  sale  takes  place,  but 
that  it  must  intervene  between  the  sale 
and  the  exercise  of  such  right.  It  is  well 
.settled,  tluit  after  the  .sale,  and  before  the 
vendor  has  taken  any  steps  to  forward 
the  pro[)erty  to  the  vendee,  the  former 
has  a  lien  ujioii  it,  by  virtue  of  which  he 
may,  on  the  occnn-encc  of  the  insolvency 
of  the  latter,  retain  the  goods  in  his  pos- 
session, as  a  security  for  tlic  price.  This 
is  a  strictly  analogous  riirlit  to  that  of 
stopping  them  after  they  have  been  for- 
warded, and  wliile  they  are  on  their  way 
to  the  vendee,  and  depends  on  the  same 
l)rinciplcs.  And  it  may  be  here  remarked, 
that  the  cases  decided  on  the  sulycet  of 


that  right  of  lien  confirm  the  views  which 
we  have  expressed  as  to  the  meaning  of 
insolvency  as  applied  to  tlie  right  of  sto])- 
page,  after  the  tnmsitus  has  commenced. 
Tlie  same  equitable  princijjlc  which  au- 
thorizes a  retention  of  the  possession  in 
the  one  case,  and  a  recovery  of  it  in  the 
other,  would  seem  to  authorize  the  latter, 
where  the  insolvency  occurred  after  the 
sale  aiul  before  the  forwarding  of  the 
l)roperty.  The  right  of  stopping  it  after 
the  transitits  has  commenced  maj'  not, 
therefore,  be  limited  to  the  case  where 
insolvency  occiu-s  after  it  lias  left  the 
possession  of  the  veiulor,  but  may  ex- 
tend to  cases  where  it  occurred  at 
any  time  after  the  sale.  However 
that  may  be,  we  arc  clear  that  it 
must  occur  after  the  sale.  In  favor  of 
this  position  there  is  the  same  argument, 
from  an  entire  a!)scnce  of  authority  against 
it,  as  was  derived  from  that  source  on  the 
point  which  we  have  just  considered  ;  and 
it  applies  with  c(piai  force.  We  find  no 
decided  case  in  wliich  the  right  in  (jucs- 
tion  has  l)een  sanctioned,  excepting  where 
the  insolvency  occurred  subse(iuent  to  the 
sale.  And  although  the  language  of  the 
courts  may  sometimes  seem  to  import 
that  the  right  exists,  irrespective  of  the 
time  when  the  insolvency  took  i)lace,  it  is 
quite  plain  that,  applying  their  exjires- 
sions  to  the  cases  they  were  considering, 
and  which  did  not  involve  this  point,  they 
were  not  intended  to  have  that  construc- 
tion. But  in  myst  of  the  decided  cases 
on  this  subject  it  will  be  seen  that  their 
language  is  most  uiu'quivocal,  aiul  in 
terms  limits  the  right  of  stojipage  to 
cases  of  bankruptcy  or  insolvency,  occur- 
ring while  the  goods  are  in  tninsitu,  and  of 
course  after  the  sale." 

[.5U3] 


479-480*  THE    LAW    OF    CONTRACTS.  [BOOK  III. 

It  has  been  much  disputed,  and  may  not  yet  be  entirely  settled, 
whether  this  is  a  right  to  rescind  the  sale,  (p)  or  only  an  exten- 
sion of  the  common-law  lien  of  the  seller,  (q)  The  difference  is 
important.  If  stoppage  in  transitu  rescinds  the  sale,  the  vendor 
thereby  takes  possession  of  the  goods  as  his  own,  and  has  no 
claim  on  the  purchaser  for  the  price.  But  if  it  be  only  the  ex- 
ercise of  a  right  of  lien,  then  the  property  in  the  goods  remains 
in  the  purchaser  or  those  who  represent  him,  and  the  right  to 
the  price  of  the  goods  remains  with  the  vendor,  (r)  Therefore, 
if  the  vendor  now  sells  them,  it  must  be  as  any  one  may  sell  on 
which  he  has  a  lien  to  secure  an  unpaid  debt ;  if  they  bring 
more  than  the  debt  he  must  account  for  the  surplus ;  if  they 
bring  less,  he  may  demand  the  balance  from  the  purchaser,  [s) 

*Thi3  question  has  been  much  agitated ;  but  we  think  the 
strongly  prevailing  authority  and  reason  are  in  favor  of  its  being 
an  exercise  of  a  lien  by  the  seller,  and  not  a  rescission  of  the 
sale.  Doubtless  there  are  dilFiculties  attendant  upon  either 
view  of  this  question.  Thus,  it  may  be  said  that  a  seller  cannot 
retain  a  lien  who  has  parted  with  his  possession.  And  then 
the  right  would  be  considered  rather  as  a  quasi  lien ;  or,  in 
other  words,  the  right  of  stoppage  in  transitu  is  measured  and 


(py  This  question  was  much  discussed  before  it  was  applied  by  the  common-law 

in  Clay  v.  Harrison,  10  B.  &  C.  99,  but,  courts.      Sec  Wiseman   v.    Vandeput,   2 

according   to    a  dictum  of   Parke,    J.,    in  Vern.  203  ;  Snee  v.  Prescot,  1  Atk.  246 ; 

Stephens  v.  Wilkinson,  2  B.  &  Ad.  323,  D'Aquihi  v.  Liimbert,  2  Eden,  75,  Ambl. 

not  decided.    See  Wilmhurstr.  Bowker,  5,  399.     In  the  following  cases  this  right  has 

Bing.  N.  C.  547  ;  Edwards  v.  Brewer,  2  been  considered  not  a  rescission  of  the  sale, 

M.  &  W.  375  ;  Key  ?•.  Cotesworth,  14  E.  but   merely    an    extension    of    the    lien. 

L.  &  E.  435.    Thc"old  case  of  Lanofort  w.  AVentworth  v.   Outhwaitc,   10  M.   &  W. 

Tiler,  1  Salk.  113,  permitting  the  vendor  43G  ;  Bloxam  v.  Sanders,  4  B.  &  C.  941  ; 

to  resell  the  goods,  seems  to  proceed  upon  Jordan  v.  James,  5  Ham.  88  ;  Kowlev  r. 

the  ground  of  a  rescission  of  the  contract.  Bigelow,  12  Tick.  307;  Ncwhall  y.  Var- 

The  history   and   character  of  this  right  gas,  13  Maine,  93,  15  Maine,  315  ;  Rogers 

was  much  discussed  in   Loi'd    Altinger's  r.   Thomas,  20   Conn.  53;    Gwynue,  e.r 

judgment  in  Gibson  v.  Carrnthcrs,  8  M.  &  paiir,  12  Ves.  379;  Martindale  v.  Smith, 

W.  336.     And  see  Wcntworth  v.  Ontli-  1    Q.  B.  389;    Chandler  v.   Fulton,   10 

waite,  10  M.  &  W.  451.  Tex.  2. 

(f/)  Tiie  weight  of  authority,  as  well  as         (?•)  There  would  seem  to  be  no  doubt 

the  reason   of  the  thing,   is  decidedly  in  that  the  vendor  may  sue  for  the  price  of 

favor  of  considering  tlie  right  as  an  exten-  the  goods,  notwithstanding  he  has  stopped 

sion  of  the  common-law  lien  for  the  price,  them   in  transitu,  provided  he  is  ready  to 

or,  as  Lord  Kcnijon  observed  in  Hodgson  deliver  them  on    demand   and   payment. 

V.  Loy,  7  T.  11.  445,  "an  equitable  lien  Kynier  r.  Suwercropp,  1  Camp.  109. 
adopted  by  the   law,  for   the  purpose  of        (s)    Tliis   was   distinctly   adjudged   in 

substantial' justice."     And  it  seems   that  Newhall  r.  Vargas,  15  Maine,  314,  a  very 

the  right  was  first  introduced  into  equity  able  case  on  this  subject. 

[504] 


en.  VI.]  STOPPAGE   IN   TRANSITU.  *481 

governed  as  to  its  effect  and  consequences,  rather  by  the  rules 
of  law  applicable  to  lien  than  by  those  which  would  belong  to 
a  rescission  of  the  sale.  Perhaps  the  difference  of  opinion  on 
this  subject  may  be  attributed  in  some  degree  at  least  to 
the  difference  in  the  circumstances  of  the  cases  in  which  the 
question  has  arisen.  Thus,  if  there  has  been  a  complete  sale  of 
a  specific  chattel,  agreeably  to  a  specific  order  of  the  purchaser, 
the  property  in  the  chattel  would,  it  should  seem,  pass  thereby 
to  the  purchaser,  subject  only  to  the  exercise  of  the  seller's  lien 
for  the  price.  And,  in  such  a  case,  the  exercise  of  the  right  of 
stoppage  would  revest  in  the  seller  ouXy  i\\e  possession,  i\^s,t  as 
it  was  when  he  sent  the  goods  away ;  that  is,  subject  to  the 
property  in  the  purchaser,  and  only  for  the  purpose  of  restoring 
and  making  effectual  the  seller's  lien.  But,  on  the  other  hand, 
if  A  should  send  to  B  an  order  for  a  certain  quantity  of  goods 
of  a  certain  kind  or  description,  and  B  should  procure  goods 
which  he  supposed  answerable  to  the  order,  and  send  them  to 
A,  and  should  then  hear  of  the  failure  of  A,  and  thereupon  stop 
the  goods  on  their  passage,  B's  rights  might  become  the  same 
as  if  he  had  never  sent  the  goods  ;  and  the  property  would  re- 
main in  him,  because  they  had  never  been  accepted  by  A,  and 
now  never  could  be.  [t)  Still,  however,  we  think  there  is  a 
strong  tendency  in  the  courts  both  of  England  and  this  country, 
to  treat  the  right  of  stoppage  in  transitu  as  the  exercise  of  a 
lien. 

In  some  respects  it  is  treated  as  an  absolute  lien,  and  on  this 
ground  denied  to  exist  at  all,  where  it  cannot  exist  as  a  *lien. 
Thus  it  is  said  that  this  right  belongs  only  to  one  who  sold  the 
goods,  or  had  distinctly  the  property  in  them  ;  and  not  to  one 
who  has  himself  only  a  lien  on  them,  as  a  bailee  who  has  a 
lien  for  work  done,  or  the  like ;  for  when  such  a  party  sends  the 
goods  away  from  him  he  parts  with  the  possession,  and  his  own 
lien  ceases.  (?/) 

It  is  indeed  quite  well  settled,  that  the  right  of  stoppage  in 
transitu  exists  only  between   vendor  and  vendee,  or  between 

(0  Sec   Clay  v.   Harrison,   10  B.  &  C.         («)  Sweet  i-.  Tyn),  1  East,  4. 
09,  and  note  to  that  case  ;  James  v.  Grif- 
fin, 2  M.  &  W.  523,  632,  Parke,  B. 

VOL.  I.  43  [505] 


482*  THE   LAW    OF    CONTRACTS.  [bOOK   III. 

}3ersons  standing  substarUial/i/  in  that  relation.  A  mere  surety 
for  the  price,  upon  whom  there  is  no  primary  liability  to  pay 
for  the  goods,  cannot  stop  them  upon  the  insolvency  of  the 
vendee  merely  to  secure  himself  from  loss,  (v)  But  if  the  con- 
signor is  virtuaUij  the  vendor,  he  may  exercise  the  right.  Thus, 
if  a  person  in  this  country  should  send  an  order  to  his  corre- 
spondent in  Paris  to  procure  and  ship  to  him  certain  goods, 
which  the  latter  should  procure  on  his  oivn  credit,  without  nam- 
ing the  principal,  and  ship  to  him  at  the  original  price,  adding 
only  his  commission,  he  would  be  considered  as  an  original 
vendor,  so  far  at  least  as  to  give  him  the  right  of  stoppage 
in  transitu,  (tv)  if  not  for  all  purposes.  So  a  principal  who 
consigns  goods  to  his  factor  upon  credit  may  stop  them  on  the 
factor's  insolvency,  (x)  The  right  of  stoppage  in  transitu  is  not 
confined  to  a  sale  of  goods.  A  person  remitting  money  on  a 
particular  account,  or  for  a  particular  purpose  may  stop  the 
same  on  hearing  of  the  insolvency  of  the  consignee,  [y)  The 
fact  that  the  accounts  between  the  consignor  and  consignee  are 
unadjusted,  rendering  it  uncertain  whether  there  is,  or  will  be,  a 
balance  due  the  consignor,  will  not  prevent  the  consignor  from 
exercising  this  right,  (sr)  But  goods  shipped  to  pay  a  precedent 
and  existing  debt  cannot  be  stopped  on  the  insolvency  of  the 
consignee,  [a)  A  consignor  may,  however,  *exercise  this  right, 
although  he  has  received  a  bill  of  exchange  for  the  goods  and 
indorsed  it  over ;  {h)  or  even  if  he  has  received  actual  payment 
for  a  part  of  the  goods,  (c) 


(r)  SifFkin  v.  Wray,  6  East,  371.  said  that  the  consignor  need  not  tender 

(hi)  Feise  i\  Wray,  3  East,  93.  back  the  bill.     Edwards  v.  Brewer,  2  M. 

(.r)  Kinloch  v.  Craig,  3  T.  R.  119.  &  W.  375  ;  Hays  v..  Mouille,  14  Penn.  St. 

(y)  Smith  v.  Bowles,  2  Esp.  578.   Al'der  R.  48.     But  of  tiiis  we  should  have  some 

upon  a  general  remittance  from  a  debtor  doubts, 

to  his  creditor  on  account  of  his  debt.  (c)  Hodgson  v.  Loy,  7  T.  R.  440 ;  Ncw- 

(s)  Wood   V.  Jones,   7  D.  &  R.   126;  hall  v.  Vargas,   13  Maine,   d'i.  —  Qiuere, 

Vertue  v.  Jewell,  4  Camp.  31.  whether  in  those  States  where  a  negotiable 

(a)  Wood  r.  Roach,   1   Yeatcs,  177,  2  bill  or  note  is  considered  prima  facie  as 

Dallas,  180;  Summcril  i'.  Elder,  1  Binn.  payment,  such  a  bill  or  note,  given  for 

106  ;  Clark  v.  Mauran,  3  Paige,  373.  the  whole  price,  would  defeat  the  riglit  of 

(6)  And  this  is  true  although  the  bills  stoppage  ?      See  Chapman   r.    Searle,   3 

are  not  yet  mature.     Newhall  v.  Vargas,  Pick.  38 ;  Hutchins  v.    Olcutt,  4   Verm. 

13  Maine,   93;  Bell  i'.  Moss,  5   Whart.  549;  White  v.  Doughertj',  Mart.  &  Yerg. 

189  ;  Feise  v.  Wray,  3  East,  93;  Jenkyns  309.     See  Horncastle  v.  Farran,  3  B.  & 

V.  Usborne,  7  M.  &  G.  678,  698 ;  Donath  Aid.  497  ;  Buaney  v.  Pojoitz,  4  B.  &  Ad. 

V.  Broomhead,  7  Barr,  301.     And  it  is  568. 

[506] 


CII.  VI.] 


STOPPAGE   IN   TRANSITU. 


*483 


It  is  often  important,  and  sometimes  difficult  to  determine 
whether  the  goods  which  it  is  sought  to  stop  are  still  in  tran- 
situ, (d)  The  general  rule  is,  that  they  are  so  not  only  while  in 
motion,  and  not  only  while  in  the  actual  possession  of  the  car- 
rier, (although  he  was  appointed  and  specified  by  the  con- 
signee.) but  also  while  they  are  *deposited  in  any  place  distinctly 
connected   with    the    transmission   or  delivery  of  them,  (e)    or 


(f/)  If  part  of  the  goods  have  been  de- 
livered, the  re^^t  may  nevertheless  lie 
stopped.  Eucklcy  t'.  Furniss,  17  Wend. 
504.  So  held  where  the  goods  were  sep- 
arated, and  one  wagon-load  had  been  de- 
livered before  the  rest  arrived.  See  also 
Hanson  v.  Meyer,  6  East,  614.  In  Tan- 
ner V.  Scovell,  14  M.  &  W.  28,  goods 
were  shipped  for  London,  and  were  landed 
at  a  wharf  and  entered  on  the  wharfinger's 
books  in  the  coiisif/iwr's  name  ;  he  had  also 
given  the  vendee  an  order  lor  their  deliv- 
ery, nndcr  which  he  had  received  and  sold 
the  greater  part;  held,  notwitiistandingthe 
transitiis  of  the  rest  might  be  arrested.  On 
the  other  hand,  in  ILiTurnond  r.  Anderson, 
4  13.  &  r.  69,  tlie  vendor  and  vendee  both 
lived  in  the  same  town  ;  and  the  goods  lay 
at  the  wharf  of  a  tliird  person.  The 
vendee  having  received  an  order  for  the 
delivery  of  the  property,  went  to  the 
wharf,  weighed  tlic  whole,  and  took  away  a 
part;  it  was  held  that  the  vendor  had  then 
no  riglit  to  stop  the  remainder.  So  in 
Slubey  V.  Heyward,  2  II.  IJl.  504,  the 
whole  property  arrived  at  tiic  ])ort  of  de- 
livery; tlic  consignees  entered  the  whole 
'•argo  at  the  custom-house ;  they  also  re- 
moved a  part  be/ore  tlie  consignor  attempted 
to  stop  tlic  goods.  It  was  held  too  late. 
See  also  Jones  i:  Jones,  8  M.  &  W.  4-31  ; 
Biumey  ".  I'oyutz,  4  li.  &  Ad.  571,  where 
part  delivery  of  a  portion  of  a  haystack, 
with  intent  to  separate  that  from  tlie 
remainder,  Wiv.s  /(c/f/not  suflicient.  A  valid 
stoppage  of  part  of  the  goods  fonvanled 
under  an  entire  contract  will  not  alirogatc 
the  elVect  of  an  actual  or  constructive  ]um- 
session  accpiired  liy  tiie  consignor  of  the 
residue.  Wentwortli  r.  Omhwaite,  10  M. 
&  W.  4.36,  a  very  important  case.  The 
di'rtiim  of  Tdiiiitoii,  J.,  in  Betts  r.  (iil)bins, 
2  All.  &  El.  57,  that  a  jiartial  delivery  is 
priind  fiirie  a  delivery  of  the  whole,  lias 
been  tlenied.  See  Tanner  r.  Scovell,  14 
M.  &  W.  37.  Tliis  seems  to  have  been 
mainly  on  the  ground  tluU  it  was  not  in- 
tended liy  the  vendee,  by  taking  possession 


of  part,  to  take  possession  of  the  whole, 
but  to  se])arate  that  part,  and  take  posses- 
sion of  it  alone.  In  Crawshay  v.  Eades,  1 
B.  &  C.  1 81 ,  A  delivered  a  quantity  of  iron 
to  be  conveyed  to  B  the  vendee.  Tlie  car- 
rier landed  a  part  of  the  iron  on  B's  wharf, 
when  learning  that  B  had  stopped  payment, 
he  reloaded  the  same  on  his  barge,  and  car- 
ried the  whole  to  his  own  premises.  Held 
that  the  vendor  miglit  stop  all  the  goods, 
the  carrier  having  a  lien  on  the  whole  for 
his  freight,  and  as  he  had  shown  no  assent 
to  their  delivery  without  payment  of  his 
lien,  no  part  of  the  goods  ever  came  into 
the  possession  of  the  vendee.  See  on  this 
subject  also,  Miles  v.  Gorton,  2  Cr.  &  M. 
504  ;  Dixon  v.  Yates,  5  B.  &  Ad.  313. 

(e)  This  point  was  much  discussed  in 
Sawyer  I'.  Joslin,  20  Verm.  172.  There 
the  goods  were  ship])ed  at  Troy,  N.  Y., 
directed  to  the  purchaser  at  Vergennes, 
Vt.  They  were  landed  upon  the  wliarf  at 
Vergennes,  IiaJf  a  mile  from  the  purchaser's 
place  of  business.  The  purchaser's  goods 
were  usually  landed  at  the  same  place,  and 
it  was  not  customary  for  the  wharfinger, 
or  the  carrier,  or  any  one  for  them,  to  have 
any  care  of  the  goods  after  they  were 
landed  ;  but  the  consignee  was  accustomed 
to  transport  the  goods  from  the  wharf  to 
his  ]dace  of  business,  as  was  also  the  cus- 
tom with  otiier  persons  having  goods  land- 
ed there.  The  goods  while  on  the  wharf 
were  not  subject  to  any  lien  for  freight  or 
charges  ;  it  was  held  that  a  delivery  on  the 
wlnirf  was  a  constructive  deliver}'  to  the 
vendee,  and  that  the  right  of  stojiiiage  was 
gone  when  the  goods  were  landed.  The 
cases  on  this  point  were  thus  classiticd  by 
II(dl,  J.,  who  delivered  the  opinion  of  the 
court :  "  The  cases  cited  and  relied  upon 
by  the  plaintiflT's  counsel,  where  the  transit 
was  held  not  to  have  terminated,  will,  I 
thiid<,  all  be  found  to  fall  within  one  or 
the  other  of  the  following  classes:  —  1. 
Cases  in  whicii  it  has  been  held  that  the 
right  of  stoppage  existed,  where  the  goods 
were  originally  forwarded  on   board  of  a 

[507] 


484* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


rather,  while  in  any  place  not  actually  or  constructively  the 
place  of  the  consignee,  or  so  in  his  possession  or  under  his  con- 
trol, that  the  putting  them  there  implies  the  intention  of  deliv- 
ery. Thus,  if  goods  are  lodged  in  a  public  warehouse  for  non- 
payment of  duties,  they  are  not  in  the  possession  of  the  vendee, 
and  the  vendor  may  stop  them.  (/)  So  where  goods  are  still 
in  the  custom-house,  the  right  to  stop  them  is  not  defeated, 
"although  the  vendee  has  paid  the  freight,  the  goods  having  been 
not  entered  through  loss  of  the  invoice,  (g-)  The  entry  of  the 
goods  without  payment  of  duties  is  not  a  termination  of  the 
transit,  [h) 

*They  are  in  transit  until  they  pass  into  the  possession  of  the 
"vendee.  But  this  possession  may  be  actual  or  constructive. 
The  doctrine  that  the  goods  must  come  to  the  "  corporal  touch  '' 
of  the  vendee,  as  was  once  said  by  Lord  Kenyon,  has  long 
since  been  exploded,  {i)  Thus,  suffering  the  goods  to  be  marked 
and  resold,  and  marked  again  by  the  second  purchaser,  has  been 


sliip  chartered  by  the  vendee.  2.  Where 
the  delivery  of  the  goods  to  the  vendee  has 
been  deemed  incomplete,  by  reason  of  his 
refusal  to  accept  them.  3.  Where  goods 
remained  in  the  custom-house,  subject  to  a 
government  bill  for  duties.  4.  Where 
they  were  still  in  the  hands  of  the  carrier, 
or  wharfinger,  as  his  agent,  subject  to  the 
carrier's  lien  for  freights.  5.  Where  the 
goods,  though  arrived  at  their  port  of  de- 
livery, were  still  on  shipboard,  or  in  the 
hands  of  the  ship's  lighterman,  to  be  con- 
veyed to  the  wharf.  6.  Where  the  goods 
had  performed  part  of  their  transit,  but 
were  in  the  hands  of  a  middleman,  to 
be  forwarded  on  by  otlier  carriers." 
Tucker  v.  Humphery,  1  M.  &  P.  378,  is 
.an  important  case.  There  goods  were 
shipped  on  board  a  vessel  addressed  to 
the  defendant's  wharf  for  one  Gilbert.  An 
invoice  was  sent  to  (iilbert,  stating  that 
the  goods  were  lx)nght  and  ship]icd-for 
him,  and  on  his  account  and  risk  ;  and 
in  the  ship's  manifest  they  were  marked  to 
be  delivered  "  to  order."  Before  the  ar- 
rival of  the  vessel  the  purchaser  became 
bankrupt,  and  after  the  vessel  reache<l  the 
wharf,  but  before  the  goods  were  landed, 
they  were  claimed  by  a  jierson  on  behalf 
of  the  consignor,  and  they  were  delivered 
to  him.  In  an  action  b)-  the  assignees  of 
the  consignee  to  recover  the  goods,  held, 

'   [508J 


the  consignor  had  a  right  to  stop  them. 
See  other  instances  in  Kichardson  v. 
Goss,  3  B.  &  V.  127;  Loeschman  v.  Wil- 
liams, 4  Camp.  181  ;  Mills  v.  Ball,  2  B. 
&  P.  457  ;  Rowe  v.  Pickford,  1  Moore, 
52G ;  Leeds  v.  Wright,  3  B.  &  P.  320  ; 
Marshall  v.  Fall,  9  Louis.  Ann.  Reps.  92. 

(f)  Northey  v.  Field,  2  Esp.  613;  Nix 
V.  Olive,  cited  in  Abbott  on  Sliipping,  490  ; 
Mottram  v.  Heyer,  5  Denio,  629,  opinion 
of  the  Chancellor. 

(//)  Donath  v.  Brownhead,  7  Barr,  301. 

(h)  Mottram  v.  Heyer,  5  Denio,  629,  1 
Denio,  483,  an  important  case.  The  de- 
fendants were  merchants  in  New  York. 
They  ordered  the  plaintiffs  to  send  them 
from  England  a  case  of  hardware.  It  ar- 
rived Api'il  7,  when  the  bill  of  lading  was 
delivered  to  the  jilaintiffs,  and  the  freight 
paid. .  On  the  9th  the  goods  were  entered 
at  the  custom-house,  and  carried  from  the 
ship  to  the  public  store.  While  there,  and 
before  the  duties  were  paid,  the  defendants 
became  insolvent,  and  the  plaintifl's  de- 
manded of  them  the  goods.  They  refused 
to  deliver  them,  and  afterwards  ])aid  tlie 
duties,  apd  removed  them  to  their  store. 
It  was  held  that  the  demand  was  not  suf- 
ficient to  revest  the  title  in  the  ])laintiffs. 

(/)  Wright  V.  Lawes,  4  Esp.  82  ;  Mot- 
tram  i-.  Heyer,  1  Denio,  483. 


cii.  vr.] 


STOPPAGE   IN   TRANSITU. 


*485 


considered  a  constructive  delivery,  (j)  So,  a  delivery  by  the 
vendor,  to  the  vendee,  of  the  key  of  the  vendor's  warehouse, 
where  the  goods  are  stored,  amounts  to  a  delivery,  (k)  So,  de- 
manding and  marking  tlie  goods  by  the  vendee's  agent  at  the 
inn  where  the  goods  arrived  at  their  destination,  (l) 

If  the  carrier,  by  reason  of  an  arrangement  with  the  con- 
signee, or  for  any  cause,  remains  in  possession,  but  holds  the 
goods  only  as  the  agent  of  the  consignee,  and  subject  to  his 
order,  this  is  the  possession  of  the  consignee,  (in)  Yet,  even  *in 
cases  where  an  existing  usogc  authorizes  a  carrier  to  retain  the 
goods  in  his  hands  as  security  for  his  whole  claim  against  a 
consignee,  the  consignor  may  still  stop  them  as  in  transitu,  and 
take  them  from  the  carrier,  by  paying  to  him  the  amount  due 
specifically  for  the  carriage  of  those  goods,  («)  And  the  master 
of  a  ship  chartered  wholly,  or  even  owned  by  the  consignee, 
may  nevertheless  be  a  carrier  in  whose  hands  the  consignor 
may  stop  the  goods,  if  the  goods  are  to  be  delivered  finally  to 
the  charterer  himself,  (o) 


(  /)  Stoveld  r.  Hnirlio?,  14  East,  308. 

(/.•)  Sfi  thoujilit  Lord  Kcnvou  himself  in 
Ellis  V.  limit,  .3  T.  K.  4G8.  " 

(/)  Ellis  /•.  Hunt,  3  T.  R.  464.  So  if 
the  vendor  nf;rce  to  let  the  <:ood.s  lie  in  his 
warehouse,  for  a  short  time,  althou;;li  /)vr 
of  rent,  and  to  acconiniodate  the  vendfo. 
Ban-ett  r.  Goddard,  3  Mason,  107.  But 
see  Townley  r.  Crump,  4  A<1.  v<:  El.  58, 
contra.  80  if  rent  he  paid.  IIuitv  v. 
I\Ianf!:!es,  1  Camp.  4,'j2.  So  deliverin;;  to 
the  vendee  a  hill  of  pareels,  with  an  order 
on  the  stnre-kee])er  for  the  delivery  of  the 
froods.  Ilollin<rsworth  r.  Najiier,  3  Caines, 
182.  But  f/'/'fTc,  see  ;)o.s7.  So,  ^ivinji;  an 
order  hy  the  vendor  to  the  keeper  of  a 
warehouse,  for  the  delivery  of  tlic  poods. 
Harman  i\  Anderson,  2  Camp.  243.  See 
also,  Frazer  v.  Hilliard,  2  Stroh.  309. 
Delivery  to  a  mereantile  house,  merely 
for  transmission  to  the  vendee,  liy  a  for- 
wardinir  house,  does  not  take  away  the 
ri;.dit  of  stoppafje.  Hays  v.  Mouille,  14 
I'eim.  St.  H.  48. 

(ill)  This  jirineiple  is  well  illustrated  hy 
the  case  of  Allan  ;•.  Gripper,  2  Cr.  &  Jer. 
218,  2  Tyrwh.  217.  Tin-  f,'oo(l ;  were  con- 
veyed hy  a  carrier  hy  w:iter,  and  deposited 
in  the  carrier's  warehouse,  to  he  delivered 
thence  to  the  ))urchaser  or  iiis  customers, 
118  they  should  he  wanted,  in  pursuance  of 

43* 


an  agreement  to  this  effect  hetwcen  the 
carrier  and  the  purchaser.  This  was  the 
usual  course  of  liusiness  hetwcen  them. 
It  was  held  that  the  carrier  hccamc  the 
warehouseman  of  the  purcha.<er,  upon  the 
poods  heinp  deposited  there,  and  that  the 
vendor's  ripht  of  stoi)])af;e  was  gone. 
And  the  case  was  likened  to  Foster  v. 
Frainpton,  G  B.  &  C.  107,  D  1).  &  B.  108, 
where  the  vendee  desired  tlie  carrier  for 
his  own  convenience  to  let  the  goods  re- 
main in  his  warehouse  until  he  received 
further  directions ;  and  also  took  home 
samples  of  tiie  goods  ;  hut  hefove  the  hulk 
was  removed  he  iiecame  insolvent ;  held, 
that  the  right  of  stoppage  in  trdnsilu  was 
gone.  Scott  r.  Pettit,  3  B.  &  P.  4G9,  was 
decided  on  the  same  principle.  Goods 
were  sent  from  Manchester  diircted  to  the 
purchasers  at  London  ;  hut  in  pursuance 
of  a  general  order  from  the  huyer  to  the 
seller  were  sent  to  the  warehouse  of  the 
huyer's  jiacker,  and  hy  the  warehouseman 
were  hookeil  to  the  huyer's  account,  and 
the  warehouseman  unpacked  tliem.  The 
(rftnuitiis  was  ludd  at  an  end  when  the 
goods  ivached  the  warehouse. 

(«)  Oppcnhcim  r.  Husscll,  3  B.  &  P. 
42,  a  very  excellent  case  ujion  this  sub- 
ject. 

(0)  Stubbs  i\  Lund,  7  Mass.  453,  recog. 

[509] 


486 


THE   LAW   OF   CONTRACTS, 


[book  hi. 


So,  if  by  the  bill  of  lading  the  goods  are   deliverable  to  the 
order  of  the  consignor  or  his  assigns,  the  property  therein  does 


nizes  tliis  principle.  There  the  A^endors 
resided  in  Liverpool,  England ;  the  ven- 
dees in  America.  The  goods  were  de- 
livered on  board  the  vendees'  own  ship, 
at  Liverpool,  and  consigned  to  them  or 
assigns,  for  which  the  master  had  signed 
bills  of  lading.  The  vendors,  hearing  of 
the  insolvency  of  the  vendees  before  the 
vessel  left  Liverpool,  refused  to  let  the 
vessel  sail,  claiming  a  riglit  to  stop  the 
goods,  and  that  they  had  not  reached  their 
destination.  The  right  of  stoppage  was 
allowed,  mainly,  it  seems,  on  the  ground 
that  the  goods  were,  by  the  bills  of  lading, 
to  be  transported  to  the  vendees,  and  were 
in  transit  until  they  reached  them  ;  but 
it  was  thought  that  if  the  goods  had  been 
intended  for  some  foreign  market,  and 
never  designed  to  reach  any  possession  of 
the  purchasers,  more  tluui  they  then  had 
at  the  time  of  their  shipment,  the  case 
would  be  different,  and  the  ti-ansit  in  such 
a  case  would  be  considered  as  ended. 
Parsons,  C.  J.,  thus  laid  down  the  law  on 
this  point :  "  In  our  opinion  the  true  dis- 
tinction is,  whether  any  actual  possession 
of  the  consignee  or  his  assigns,  after  the 
termination  of  the  voyage,  be  or  be  not 
provided  for  in  the  bills  of  lading.  When 
such  actual  possession,  after  the  termina- 
tion of  the  voyage,  is  so  provided  for,  then 
the  riglit  of  stopjnng  in  transitu  remains 
after  the  shipment.  Thus,  if  goods  arc 
consigned  on  credit,  and  delivered  on 
board  a  ship  chartered  by  the  consignee, 
to  be  imported  by  him,  the  right  of  stop- 
ping in  transitu  continues  after  the  .ship- 
ment, (3  East,  381,)  but  if  the  goods  are 
not  to  be  imported  by  the  consignee,  but 
to  be  transported  from  the  place  of  ship- 
ment to  a  foreign  market,  the  right  of 
stopping  in  transitu  ceases  on  the  ship- 
ment, the  transit  being  then  completed ; 
because  no  other  actual  possession  of  the 
goods  by  the  consignee  is  provided  for  in 
the  bills  of  lading,  which  express  the  terms 
of  the  shipment."  The  court  in  tliis  case 
rely  upon  Bohtlingk  v.  Liglis,  3  East,  381 , 
where  a  person  in  England  chartered  a 
ship  to  go  to  Russia,  and  bring  home 
goods  from  his  correspondent  tliere,  the 
goods  to  make  a  complete  cargo.  The 
vessel  proceeded  to  Russia,  and  the  corre- 
spondent shipped  the  goods  ordered  at  the 
risk  of  the  freighter,  and  sent  him  the  in- 
voice   and  bills   of  lading.     The  goods 

[510] 


were  to  be  conveyed  to  the  freighter  in 
England.  It  was  held,  that  the  delivery 
on  board  the  vessel  was  not  a  final  de- 
livery, and  that  the  goods  might  be  stopped 
on  the  way  ;  and  on  the  same  ground  as 
before  stated  that  they  "  were  in  their  pas- 
sage or  transit  from  the  consignor  to  the 
consignee."  The  distinction  alluded  to  in 
the  next  note,  was,  however,  fully  recog- 
nized. See  also,  Coxe  v.  Harden,  4  East, 
211.  Newhall  v.  Vargas,  13  Maine,  93, 
is  also  a  clear  illustration  of  the  rule  of 
the  text.  The  purchaser  lived  in  America  ; 
the  consignor  in  Havana.  The  former 
sent  his  own  vessel,  to  Havana  for  a  cargo 
of  molasses,  which  was  shipped  on  board 
the  vessel,  consigned  to  the  vendee,  and 
to  be  delivered  to  him  at  his  port  of  resi- 
dence ;  it  was  he/d  that  tlie  vendor  had  the 
right  to  stop  the  goods  at  any  time  before 
they  came  into  the  actual  possession  of 
the  vendee,  and  the  case  of  Stubbs  r, 
Lund  was  fullv  approved.  See  also, 
Tliompson  v.  Trail,  2  C.  &  P.  334  ;  Buck- 
ley V.  Eurniss,  15  Wend.  137,  17  Wend. 
5U4.  The  case  of  Bolin  v.  Hulfnagle,  1 
Rawle,  1,  seems  in  direct  conflict  with 
these  authorities,  and  we  think  cannot  be 
supported.  But  see  Van  Casteel  v. 
Booker,  2  Exch.  708,  opinion  of  Parke, 
B.  The  recent  case  of  Turner  v.  The 
Trustees  of  Liverpool  Docks,  in  the  Ex- 
chcrpier  Chamber,  6  E.  L.  &  E.  507,  is  an 
important  case  on  this  point.  There  A. 
&  Co.,  residing  in  Charleston,  America, 
consigned  cotton  to  B.  &  Co.,  living*  at 
Liverpool,  and  delivered  it  on  B.  &  Co.'s 
own  vessel  at  Chai'lcston,  taking  a  bill  of 
lading  to  deliver  to  their  order  or  their 
assigns,  they  paying  no  freight,  "  beini/ 
ownei-'s  propei'ty."  The  consignors  in- 
dorsed the  bill  to  the  "  Bank  of  Liverpool 
or  order,"  The  consignees  became  bank- 
rupt before  the  cotton  arrived  at  Liverpool. 
The  consignors,  on  its  arrival,  claimed  to 
stop  tlie  cargo  in  transitu.  The  assignees 
in  bankruptcy  claimed  the  cotton,  as  hav- 
ing been  so  completely  delivered  as  to  vest 
in  the  bankrupts  as  soon  as  it  was  put  on 
board  their  own  vessel  at  Charleston 
S])ccially  appointed  by  them  to  bring 
home  such  cargo.  Patteson,  J.,  said  : 
"  There  is  no  doubt  that  the  delivery  of 
goods  on  board  the  iiurchaser's  own  slii]) 
is  a  delivery  to  him,  unless  the  vendoi- 
protects  himself  by  special  terms  restrain- 


CH.    VI.] 


STOPPAGE   IN   TRANSITU. 


-486 


not  pass  to  the  consignee,  so  as  to  defeat  this  right,  although 
they  may  be  delivered  on  board  the  consignee's  own  vessel, (/>) 
and  although  the  bill  of  lading  expressed  that  the  consignee 
was  to  pay  no  freight,  the  goods  "  being  owner's  property."  (q) 
But  it  might  be  otherwise  if  it  appeared  by  the  bill  of  lading 
that  the  goods  were  put  on  board  to  be  carried  for  and  on  ac- 
count and  risk  of  the  consignee,  (r)  So  if  the  goods  are  intended 
for  a  market  foreign  to  the  residence  of  the  consignee,  and  never 
designed  to  come  into  the  actual  possession  of  the  charterer, 
then  it  would  seem  that  a  delivery  on  board  of  the  vessel, 
whether  owned  or  hired  by  the  purchaser  or  not,  has  been  held 
final,  and'the  right  of  stoppage  in  transitu  gone.  (s). 


ing  the  effect  of  such  delivery.  lu  the 
present  case  the  vendors,  by  the  terms  of 
the  bill  of  lading,  made  the  cotton  deliver- 
able at  Liverpool  to  their  order  or  assigns, 
and  therefore  tlicre  was  not  a  delivery  of 
the  cotton  to  the  purchasers  as  owners, 
although  there  was  a  delivery  on  board 
their  siiip.  The  vendors  still  reserved  to 
themselves,  at  the  time  of  the  delivery  to 
the  captain,  a  Jus  disponeudi  of  the  goods, 
which  he  i)y  signing  the  bill  acknowl- 
edged." Sec  also,  EUershaw  r.  Magniac, 
6  Exch.  ."iTO,  note ;  Van  Casteel  v.  iiook- 
er,  2  Exch.  091  ;  Wait  v.  Baker,  id.  1 ; 
Mitchel  V.  Ede,  11  Ad.  &  El.  888;  Jen- 
kyns  V.  IJrown,  14  Q.  B.  4'JG  ;  Key  v. 
Cotcsworth,  14  E.  L.  &  E.  435;  Aguirrc 
V.  rariiielee,  22  Conn.  47;3. 
(p)  Wait  V.  Baker,  2  Exch.  1. 
(7)  Turner  v.  Trustees  of  Liverpool 
Docks,  6  E.  L.  &  E.  507. 

(r)  Van  Casteel  v.  Booker,  2  Exch. 
691-708 ;  Wilmshurst  v.  Bowker,  7  M.  & 
G.  882  ;  .Jenkvns  v.  Brown,  19  Law  J. 
Kep.  (X.  «.)  Q.  B.  286,  14  Q.  B.  49(5. 

(s)  Tiiis  distinction  is  fully  supported 
by  Fowler  v.  Ivymer,  citeil  in  .'J  Ea.st,  .'590, 
and  recognized  in  Stubbs  v.  Lund,  7 
Mass.  457  ;  Newhall  v.  Vargas,  13  ALiine, 
93.  K((wh>y  r.  Bigclow,  12  Pick.  308, 
supports  the  same  view.  The  court  there 
said  :  "  We  think  it  very  clear,  that  a  de- 
livery of  the  corn  on  board  of  a  vessel 
appointed  i)y  tlie  vendee  to  receive  it,  not 
for  the  purpose  of  transjiortation  to  iiini, 
or  to  a  plac(^  a])pi)iutcd  l)y  him,  to  be  de- 
livered there  for  his  use,  i»ut  to  he  sliippcd 
by  such  vessel,  in  his  name,  from  his  own 
lilacc  of  residence  and  business,  to  a  third 
person,  wa.s  a  termination  of  the  transit, 


and  the  right  of  the  vendor  to  stop  in 
transitu  was  at  an  end."  In  Valpy  v. 
Gibson,  4  C.  B.  837,  it  was  held  that  if 
goods  are  sold  to  be  shipjjed  to  some  ul- 
timate destination,  of  wtiich  the  vendor 
had  knowledge,  but  were  first  to  go  into 
the  hands  of  an  agent  of  the  ]nirehaser, 
and  there  await  the  purchaser's  orders,  the 
right  of  stop]iage  in  transitu  was  deter- 
mined on  delivery  to  such  agent.  See 
also  the  still  later  ease  of  Cowas-jee  y, 
Thompson,  5  Moore,  P.  C.  165.  There 
goods  contracted  to  be  sold  and  delivered 
"  free  on  board,"  to  be  paid  for  by  cash 
or  bills,  at  the  option  of  the  ])urchasers, 
were  delivered  on  board,  and  receipts 
taken  from  the  niate  by  the  lighterman 
employed  b}'  the  sellers,  who  handed  the 
same  over  to  them.  The  sellers  apprised 
the  ])urchasers  of  the  delivery,  who  elected 
to  pay  for  the  goods  by  a  bill,  wliich  the 
sellers  having  drawn,  was  duly  accepted 
by  the  purchasers.  The  seUers  retained 
the  mate's  receipts  for  the  goods,  hut  the 
master  signed  the  bill  of  lading  in  the 
])urchasers'  names,  who,  while  the  bill 
they  accepted  was  ruiuiing,  became  insol- 
vent. In  such  circumstances,  lifld  by  tlic 
Judicial  Couimittce  of  the  Privy  Council, 
(reversing  the  verdict  and  judgment  of  the 
Supreme  Court  at  Bond)ay,)  that  trover 
would  not  lie  for  the  goods,  for  that  ou 
their  delivery  on  board  tiie  vessel  they 
were  no  longer  in  transitu,  so  as  to  Ik; 
stopped  by  the  .sellers  ;.  and  that  the  re- 
tention of  the  receipts  by  the  sellers  was 
immaterial,  as  after  their  clecticm  to  l>c 
paid  by  u  bill,  the  receipts  of  the  mate 
were  nut  essential  to  the  trausaetion  l)e- 
twecu  the  eeller  and  purcluiser. 

[511] 


487-488* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


As  the  goods  may  pass  conslructively  into  the  possession  of 
the  consignee,  so  they  may  be  transferred  by  him  before  they 
reach  him,  in  such  a  way  as  to  destroy  the  consignor's  right  of 
stoppage  in  transitu.  Tijis  may  be  done  by  an  indorsement 
and  delivery  of  the  bill  of  lading.  This  instrument  is  now,  (as 
we  had  occasion  to  say  in  an  earlier  part  of  this  work,)  (/)  by 
the  custom  of  merchants,  which  is  adopted  by  the  courts,  and 
made  a  rule  of  law,  regarded  as  negotiable;  or,  more  accurately 
speaking,  as  quasi  negotiable,  its  indorsement  and  delivery 
operating  as  a  symbolic  delivery  of  the  goods  mentioned  in 
it.  [u).  And  such  transfer,  *if  it  is  in  good  faith  and  for  a 
valuable  consideration,  passes  the  property  to  the  second  ven- 
dee, who  holds  it  free  from  the  right  of  the  original  vendor  to 
stop  the  goods  in  transitu,  {v)     But  a  second  vendee,  to  whom 


(f)   Sec  ante,  p.  *240. 

[u]  Small  V.  Moatcs,  9  Bins:.  •'374 ; 
Dixon  r.  Yates,  5  B.  &  Ad.  313  ;  Jeiikvns 
r.  Usborne,  7  M.  &  Gr.  678.  The  case  of 
Thompson  v.  Dominy,  14  M.  &  W.  402, 
shows  that  the  mere  indorsement  of  a  bill 
of  lading  does  not  authorize  the  indorsee 
to  bring  a  suit  in  his  own  name  against 
the  signers,  for  their  failure  to  deliver  the 
goods  according  to  its  terms  ;  it  would  not 
be  correct,  therefore,  to  consider  such  bills 
negotiable  exactly,  altiiough  they  have 
sometimes  been  so  called,  (see  Berkley  v. 
Watling,  7  Ad.  &  El.  29 ;  Bell  v.  Moss, 
5  Whart.  189,  205,)  but  rather  that  an 
indorsement  of  such  bill  would  amount  to 
a  symbolical  delireri/.  And  if  there  wore 
also  a  bond  Jide  sale  accompanying  the 
transfer,  the  right  of  tlie  vendor  to  stop  in 
transitu  is  gone.  Newsom  v.  Thornton,  6 
East,  41,  shows  this.  There  Lord  Ellen- 
borough,  C.  J.,  said  :  "  A  bill  of  lading 
indeed  shall  pass  the  property  upon  a  bond 
Jide  indorsement  and  delivery,  where  it  is 
intended  so  to  operate,  in  the  same  man- 
ner as  a  direct  delivery  of  the  goods  them- 
selves would  do,  if  so  intended.  But  it 
cannot  operate  further."  Laurence,  J., 
added  :  "  In  Lickharrow  v.  Mason,  some 
of  the  judges  did  indeed  liken  a  bill  of 
lading  to  a  liill  of  excliange,  and  con- 
sidered tliat  the  indorsement  of  the  one 
did  convey  the  property  in  the  goods  in 
the  same  manner  as  the  indorsement  of 
the  other  conveyed  the  sum  for  which  it 
was  drawn.  But  in  the  Exchequer  Cham- 
ber there  was  much  argument   to   show 

[512] 


that,  in  itself,  the  indorsement  of  a  bill  of 
lading  was  no  transfer  of  the  property, 
though  it  might  operate,  as  other  instru- 
ments, as  evidence  of  the  transfer." 

[v]  The  leading  case  on  this  subject  is 
Lickbarrow  v.  ]\iIason,  first  decided  in  the 
King's  Bench,  1787,  and  reported  in  2  T. 
R.  63,  and  from  thence  carried  to  the  Ex- 
chequer Chamber,  where,  in  1790,  the  de- 
cision below  was  reversed  ;  rcjiorted  in  1 
H.  Bl.  357.  The  record  was  thence 
removed  into  the  House  of  Lords,  where 
the  judgment  of  the  Exchequer  Chamber 
was  itself  reversed,  and  a  venire  de  novo 
awarded  in  June,  1793.  BuUer's  able 
opinion  before  t!ie  House  of  Lords  is  re- 
ported in  G  East,  21,  note.  Tlie  cause 
was  again  tried  before  the  King's  Bench 
in  1794,  at  the  head  of  which  Lord  Ken- 
yon  had  in  the  mean  time  been  placed, 
and  decided  in  the  same  manner  as  in 
1787,  wlien  the  case  was  first  before  them. 
If  a  writ  of  error  was  again  brought,  it 
was  probably  abandoned,  as  no  further 
report  of  the  case  appears.  A  clear  and 
succinct  history  of  the  law  on  this  point  is 
given  in  Abbott  on  Shipping,  471.  The 
case  of  Lickljarrow  v.  Mason  is  to  be 
understood  as  deciding  only,  tliat  if  there 
has  been  an  actual  and  bond  Jide  sale  of 
goods  by  the  consignee,  the  consignor 
cannot  sto]i  them,  if  the  purchaser  of  the 
consignee  has  also  taken  an  assignment 
to  himself  of  the  original  bill  of  lading 
from  the  consignor  to  the  consignee.  The 
mere  assignment  of  a  bill  of  lading,  not 
based  on  an  actual  sale  of  the  goods,  it  is 


en.  VI.]  STOPPAGE   IN   TRANSITU.  *489 

the  bill  of  lading  is  not  transferred,  or  not  so  transferred  as  to 
carry  good  title,  and  who  neglects  to  take  actual  or  construc- 
tive possession,  is  in  no  better  position  than  the  first  vendee, 
under  whom  he  claims  ;  and  the  goods  may  be  taken  from  him 
by  the  first  vendor,  on  the  insolvency  of  the  first  vendee.  And 
if  the  bill  of  lading  be  so  transferred  and  indorsed  by  way  of 
pledge  to  secure  the  consignee's  debt,  the  consignor  does  not 
lose  entirely  his  right  to  stop  the  goods  in  transitu,  but  holds  it 
*subject  to  the  rights  of  the  pledgee.  That  is,  he  may  enforce 
his  claim  to  hold  the  surplus  of  the  value  of  the  goods,  after 
the  pledgee's  claim  is  satisfied  ;  and  he  holds  this  surplus  to 
secure  the  debt  of  the  consignee  to  him.  [iv)  But  the  pledgee's 
claim,  which  the  consignor  is  thus  bound  to  recognize,  would 
not  be  for  a  general  balance  of  account ;  but  only  for  the  spe- 
cific advances  made  upon  the  security  of  that  particular  bill  of 
lading.  And  therefore,  by  paying  or  tendering  that  amount, 
the  consignor  acquires  the  right  of  retaking  all  the  goods,  [x) 
And  if  the  pledgor  had  pledged  some  of  his  own  goods,  to- 
gether with  those  of  the  consignor,  the  latter  would  have  a 
right  to  insist  upou  the  appropriation  of  all  the  pledgor's  own 
goods  towards  the  claim  of  the  pledgee,  before  any  of  the  goods 
contained  in  the  bill  of  lading.  {ij) 

It  is  said  that  the  exercise  of  this  right  is  an  act  so  far  ad- 
verse to  the  vendee,  that  if  the  goods  be  stopped  by  virtue  of 
an  agreement  between  the  buyer  and  seller,  it  is  no  longer  a 
stoppage  in  transitu;  but  either  a   cancelling  of  the  sale  by 

believed,  woiiM  not  destroy  tlio  vendor's  point.   It  is  tbtfre //eW  tliat  the  indorsement 

right.     Tiic  delivery  of  a  bill  of  ladinj;  and  delivery  of  a  bill  of  ladinj^,  or  the  dc- 

merely,  the  same  beinjr  in  the  hands  of  livery  without  indorsement,  if  by  the  terms 

the    orijrinal   ioiisi<incc,    imindorscd,   will  of  the  bill  the  jiroperty  is  to  be  delivered 

not,  of  eourse,  interfere  with  the  vendor's  to   u   partieular    jjcrson,    amounts    to    a 

rifrht  of  stoppage.    Tucker  v.  Ilmni)hrev,  transfer  of  the  properly,  but  not  to  defeat 

4Bing.  516,    1    M.   &  1'.  394,  PurLc,  J.  the  vendor's  right  of  stoi)page  before  the 

And  a  fortiori,  the  deliveiy  to  the  vendee  goods  came  aetiudly  into  tlie  possession  of 

of  a.  mere  shipping  note  of  the  goods,  or  the   vendee.     But   goods  at  sea  may  bo 

II  delivery  order  for  them,  instead  of  a  bill  sold,  and  if  the  iiill  of  lading  is  indoree<l, 

of  lading.     Jenkyns  v.  Usborne,  7  M.  &  the  right  to  stop  in  transitu  is  gone.     See 

Gr.  078  ;  Akerm'an  v.  Humphrey,  1  C.  &  also  Kyberg  r.  Snell,    id.  4o;{,  and  Gur- 

I'.  53;  MeKwan  v.  Smith,  13  Juri.-t,  2G5,  ncy  r.  Ik-hrend,  25  E.  L.  &,  E.  128. 

2  House  of  Lords  Cas.  309  ;  Towidey  v.  («•)   ///  ;r  Westzinthus.  5  B.  &  Ad.  817  ; 

Crump,  4  Ad.  &  El,  58.     See,  however,  Chandler  r.  Eulfon,  10  Tex.  2. 

Ilolliugsworth  c,  Napier,  3  Caines,  182.  (.r)  Spaulding  r.    Kudiiig,    G  Beavan, 

In  Walter  v.  Boss,  2  Wash.  C.  C.  H.  283,  376. 

is  an  excellent  summary  of  the  law  on  this  (y)  In  re  Westzinthus,  5  B.  v*i  Ad.  817. 

[oi;3] 


490* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


mntnal  consent,  or  a  reconveyance  by  the  buyer,  (a)  And  it 
then  becomes  in  some  cases  a  question  of  considerable  diffi- 
culty, whether  the  buyer  can  dispossess  himself  of  the  goods, 
or  of  his  right  to  them,  for  the  benefit  of  the  seller  ;  or  must 
hold  them  as  a  part  of  the  funds  to  which  his  creditors  *gener- 
ally  may  look.  The  principle  which  must  decide  such  a  ques- 
tion would  seem  to  be  this :  if  the  sale  is  so  far  complete  that 
the  property  in  the  goods  has  passed  to  the  buyer,  and  the  seller 
has  become  his  creditor  for  the  price,  the  buyer  can  have  no 
more  right  to  give  to  the  seller  security  or  satisfaction  or  other 
benefit  from  those  goods  than  from  any  others  which  he  may 
possess.  But  so  long  as  the  transaction  is  incomplete,  the 
buyer  may  warn  the  seller  of  the  danger  of  going  on  with  it, 
and  may  aid  him  in  the  use  of  all  legal  means  to  arrest  the 
transaction  where  it  stands,  and  so  save  to  him  his  property,  (b) 


(a)  This  question  was  raised  in  Ash  v. 
Putnam,  1  Hill,  302.  So  in  Naylor  v. 
Dennie,  8  Piclv.  198,  the  same  question 
was  examined.  It  was  there  said  that 
althougli  the  right  of  stoppage  in  transitu 
is  adverse  to  the  consignee,  that  means 
only  that  it  cannot  be  exercised  under  a 
title  derived  from  the  consignee ;  not  that 
it  must  be  exercised  in  hostilitij  to  him. 
And  this  right  of  stoppage  is  not  defeated, 
merely  because  the  consignee  gives  the 
consignor  a  writing  declaring  that  he  re- 
vokes the  order  for  the  goods,  and  will 
not  receive  them,  and  requests  the  carrier 
to  deliver  them  to  the  consignor.  If  the 
consignor,  therefore,  without  regard  to  any 
such  rescission  of  the  sale  by  the  con- 
signee, duly  exercise  his  right,  no  pre- 
vious attachment  by  the  creditors  of  the 
consignee,  made  during  their  transit,  can 
be  set  up  to  defeat  it.  The  consignor  may 
rely  upon  his  original  property  in  t!ic 
goods,  and  not  ujion  any  transfer  or  re- 
conveyance by  the  vendee.  —  It  is  per- 
fectly well  settled  that  the  mere  sale  of 
the  goods  by  the  vendee  during  their 
transit,  unaccompanied  witli  any  indorse- 
ment or  delivery  of  a  bill  of  lading,  &c., 
will  not  defeat  tlic  consignor's  riglit  of 
stoppage.  Craven  v.  Ryder,  6  Taunt. 
433;  Wiiitehou.se  v.  Frost,  12  East,  614; 
Stoveld  V.  Hughes,  14  East,  308 ;  Miles 
V.  Gorton,  2  Cr.  &  M.  504 ;  Dixon  v. 
Yates,  5  B.  &  Ad.  339  ;  Stanton  v.  Eager, 
16  rick.  467.  A  fortiori,  an  attachment, 
or  seizure,  on  execution,  by  the  creditors 

[514] 


of  the  vendee  will  not.  They  can  take 
no  more  rights  than  the  vendee  himself 
had.  Smith  y.  Goss,  1  Camp.  282  ;  Buck- 
ley V.  Furniss,  15  Wend.  137  ;  Naylor  v. 
Dennie,  8  Pick.  198. 

{b)  In  Smith  V.  Field,  5  T.  Pt.  402,  it 
was  said  tliat  a  contract  of  sale  might  be 
rescinded  by  the  consent  of  vendor  and 
vendee,  before  the  rights  of  others  Averc 
concei'ncd.  But  where  the  vendee  wished 
to  return  the  goods,  and  the  vendor  insti- 
tuted an  attachment  to  attach  them  in  the 
hands  of  the  ]5acker  as  the  property  of  the 
vendee,  it  Avas  considered  as  an  election 
by  tlie  former  not  to  rescind  the  contract ; 
and  the  vendee  afterwards  having  become 
bankrupt,  the  vendor  was  not  allowed  to 
recover  tlie  goods  in  trover  against  the 
packer.  In  Salte  v.  Field,  id.  211,  goods 
were  lionglit  by  vendee's  agent,  and  lodged 
in  tlie  iiands  of  the  vendee's  packer. 
While  there,  they  wei-e  attaclicd  as  the 
property  of  the  vendee  by  some  of  his 
creditors.  The  vendee  had  in  fact  coun- 
termanded the  purchase  by  letter  to  his 
agent,  lorittm  before  the  delivery  of  the 
goods  to  the  packer,  though  not  received 
until  afterwards.  IMd,  the  vendor  assent- 
ing to  take  back  tlie  goods,  that  the  prop- 
erty revested  in  him,  and  the  attachment 
was  avoided.  See  Atkin  r.  Barwick,  I 
Stransre,  165  ;  Harmanr.  Fisliar,  1  Cowp. 
125;  "Alderson  v.  Temple,  4  Burr.  2239. 
The  consent  of  the  vendor  to  retake  the 
goods  is,  however,  essential,  where  the 
sale   has   been   completed   by  actual  de- 


i 


CH.  VI.] 


STOPPAGE   IX    TRANSITU. 


-490 


livery.  Saltc  v.  Field,  5  T.  R.  211.  See 
Richardson  v.  Goss,  3  B.  &  P.  119;  Bar- 
train  V.  Farcbrotlicr,  Danson  &  Lk)yd, 
42.  Such  consent  may  be  inferred  by  tlie 
jury,  if  the  vendor  use  and  offer  the  prop- 
erty again  for  sale,  altliongli  when  he  re- 
ceived it  back  he  said  he  would  keep  it 
"without  prejudice."  Long  v.  Preston,  2 
M.  &  P.  262.     In   Quincy  v.   Tilton,    5 


Grcenl.  (Bennett's  ed.)  277,  it  is  said  that 
where  parties  agree  to  rescind  a  sale,  the 
same  formalities  of  delivery,  <!ic.,  arc  neces- 
sary to  revest  tiie  j)roperty  in  the  original 
vendor,  which  were  necessary  to  pass  it 
from  him  to  the  vendee.  See  also  Lan- 
fear  r.  Sumner,  17  Mass.  110;  Miller  v. 
Smith,  1  JNIasou,  437. 

[510] 


491-*492  THE   LAW    OF   CONTRACTS.  [BOOK  III. 


CHAPTER  VII. 


HIRING    OF    CHATTELS. 


Goods  are  often  hired  in  connection  with  real  estate  ;  as 
where  one  hires  a  house  with  the  furniture  therein,  or  a  room  with 
its  furniture.  But  although  the  clauses  resjjecting  such  hire  of 
chattels  may  form  a  part  of  a  contract  concerning  real  estate, 
they  are  construed  and  governed  by  the  principles  of  the  law  of 
personalty.  Much  the  greater  number  of  questions  which  arise 
from  the  hiring  or  letting  to  hire  of  chattels,  are  determined  as 
questions  of  bailment ;  and  may  be  discussed  to  most  advan- 
tage when  we  come  to  that  subject. 

It  sotnetimes  happens  that  parties  seek  to  give  to  other  con- 
tracts the  appearance  of  a  contract  to  hire ;  or  that  they  wish 
to  make  use  of  a  contract  to  hire,  for  purposes  usually  accom- 
plished by  other  means.  Thus,  suppose  a  person  about  to  open 
a  boarding-house,  and  needing  furniture,  and  proposing  to  buy 
the  same  in  whole  or  in  part  upon  credit.  The  seller  is  willing 
to  trust,  if  he  can  have  the  security  of  the  property  itself;  but  if 
he  does  this  by  sale  and  mortgage  back,  it  must  be  recorded, 
and  an  equity  of  redemption  attaches.  To  avoid  this,  he  makes- 
a  lease  of  the  furniture  to  the  other  party,  say  for  one  year,  and 
the  lease  contains  a  provision  that  the  lessee  may  buy  the  same 
by  paying  a  certain  price  therefor,  at  certain  times.  The  lessee- 
takes  the  property  into  his  house,  and  a  creditor  without  notice 
attaches  it  as  his  property.  The  question  has  sometimes  arisen 
under  these  circumstances,  whether  this  is  not  in  law  a  sale 
with  mortgage  back;  and  whether  the  attempt  of  the  parties  to 
avoid  the  notice  of  record,  with  the  permission  of  the  original 
owner  to  let  the  proposed  purchaser  take  open  possession  with- 
out giving  any  notice  of  his  rights,  does  not  lay  him  open  to 
lose  the  property  if  a  bond  fide  creditor  of  the  *hirer  takes  it  by 
attachment.  The  question  is  one  of  mixed  law  and  fact.  We 
[516] 


Cir.  VII.]  HIRING   OF    CHATTELS.  -492 

do  not  think  that  the,  law  attaches  to  such  a  transaction  an  ab- 
solute presumption  of  fraud  ;  and  unless  the  circumstances  are 
such  that  the  jury  can  infer  fraud  from  them,  actual  or  construc- 
tive, the  title  of  the  original  owner  of  the  furniture  would  pre- 
vail. This  question  has  arisen  once  or  twice  at  7iisi  priiis,  but 
we  do  not  know  that  it  has  been  authoritatively  decided  by 
courts  of  law,  sitting  in  bank. 

VOL.  I.  44  [517] 


493 


THE   LAW   OF   CONTRACTS. 


[book  III. 


CHAPTER     VIII. 

GUARANTY    OR    SURETYSHIP. 

Sect  I.  —  What  is  a  Guaranty. 

Originally,  the  words  warranty  and  guaranty  were  the 
same  ;  the  letter  g*,  of  the  Norman  French,  being  convertible 
with  the  IV  of  the  German  and  English,  as  in  the  names  Wil- 
liam or  Guillaume.  They  are  now  sometimes  used  indiscrim- 
inately ;  but,  in  general,  warranty  is  applied  to  a  contract  as  to 
the  title,  quality,  or  quantity  of  a  thing  sold,  which  we  have 
already  considered  under  the  head  of  sales  ;  and  guaranty  is  held 
to  be  the  contract  by  which  one  person  is  bound  to  another,  for 
the  due  falfilment  of  a  promise  or  engagement  of  a  third  party. 
And  this  we  shall  now  consider. 

In  general,  a  guaranty  is  not  negotiable,  nor  in  any  way  trans- 
ferable, so  as  to  enable  an  action  to  be  maintained  upon  it  by 
any  other  person  than  him  with  whom  the  contract  is  made,  (c) 


(c)  True  v.  Fuller,  21  Pick.  140;  Tyler 
V.  Biunej',  7  Mass.  479 ;  Lamourieux  v. 
Hewitt,  5  Wend.  307  ;  Springer  r.  Hutch- 
inson, 19  Maine,  359  ;  ^IcDoal  ?>.  Yeo- 
mans,  8  Watts,  361  ;  Canfield  v.  Vauo-hn, 
8  Martin,  G82 ;  Upliam  v.  Prince,'  12 
Mass.  14;  Miller  v.  Gaston,  2  Hill,  188; 
Watson  V.  McLaren,  19  Wend.  557.  Al- 
though the  instrument  may  be  in  the  form 
of  a  guaranty,  yet  if  it  contain  in  itself  all 
the  elements  of  a  negotiable  promissory 
note,  it  is  then  negotiable.  See  Ketchell 
V.  Burns,  24  Wend.  450.  In  this  case  the 
instrument  was  as  follows  :  "  For  and  in 
consideration  of  thirty-one  dollars  and  fifty 
cents  received  of  B.  Y.  Spencer,  I  hereby 
guarantee  the  payment  and  collection  of 
the  within  note  to  liiin  or  hearer.  Auburn, 
Sept.  25, 1837."  (Signed)  Thomas  Burns. 
And  it  was  held  negotiable.  In  Keed  v. 
Garvin,  12   S.  &  K^  100,  it  was  Ac-W  that 

[518J 


a  guaranty  given  by  the  assignor  of  a  bond 
runs  with  it  into  whosesoever  hands  it  may 
come,  and  the  guarantor  cannot  be  a  wit- 
ness. See  McLaren  v.  Watson,  26  Wend. 
425  ;  Adams  v.  Jones,  12  Pet.  207  ;  Wal- 
ton 7-.  Dodson,  3  C.  &  P.  163;  Bradley 
V.  Gary,  8  Greenl.  (Bennett's  ed.)  234"; 
Phillips  r.  Bateman,  16  East,  356.  If  a 
guaranty  is  directed  to  a  particular  house, 
by  name,  and  another  house  advance 
goods  upon  it,  they  have  no  claim  upon  the 
guarantor.  Bleeker  v.  Hyde,  3  McLean, 
279  ;  Grant  v.  Naylor,  4  Cranch,  224. 
And  if  the  letter  of  guaranty  is  addressed 
to  two  persons  and  received  and  acted 
upon  by  one  only,  the  guarantor  is  not 
bound.  Smith  r.  Montgomery,  3  Texas, 
199;  Myers  v.  Edge,  7  T.  E.  254.  But 
where  tlie  guarant}'  is  addressed  to  no 
person  in  particular  it  may  be  acted  upon 
by  any  one,  and  if  such  appear  to  be  the 


CH.  VITI.] 


GUARANTY. 


*494 


It  is  a  promise  to  pay  the  debt  of  another;  but  *the  guarantor 
may  be  held,  although  no  suit  could  be  maintained  upon  the 
original  debt;  and  such  guaranty  may  have  been  required  for 
the  very  reason  that  the  original  debt  could  not  be  enforced  at 
law;  as  where  the  guarantor  promises  to  be  responsible  for 
goods  to  be  supplied  to  a  married  woman,  (d)  or  to  be  sold  to 
an  infant,  not  being  necessaries,  (e)  But  where  the  original 
debt  is  not  enforceable  at  law,  the  promise  to  be  responsible  for 
it  is  considered,  for  some  purposes,  as  direct  and  not  collateral ; 
as,  in  fact,  the  original  promise.  (/)  But  if  an  infant  purchase 
necessaries,  and  give  a  promissory  note  signed  by  himself,  and 
by  another  as  surety,  who  pays  the  note,  such  surety  can  recover 
the  amount,  so  paid,  of  the  infant,  (g)     In  general,  the  liability 


intention  of  the  parties,  goods  may  be 
furnislied  by  several  ilifterent  dealers  on 
the  faith  of  the  guaranty.  Lowry  v.  Ad- 
ams, 22  Verm.  IGO. 

(t/)  See  Maggs  v.  Ames,  4  Bing.  470 ; 
Counerat  v.  Goldsmith,  6  Georgia,  14. 

(e)  tjec  Conn  v.  Coburn,  7  N.  Hamp. 
368. 

(/)  Harris  r.  Huntbach,  1  Burr.  373, 
and  Keid  v.  Nash,  there  cited.  See  also, 
Buckniyr  v.  Darnall,  2  Ld.  Raym.  1085. 

{(/)  Conn  V.  Coburn,  7  New  Ilanij). 
36y.  In  such  case  the  cause  of  action 
arises  when  the  surety  pays  the  note. 
Upon  the  point  whether  such  undertaking 
by  the  surety  is  original  or  collateral, 
Parker,  J.,  observed :  "  It  is  very  clear 
tliatthis  note  cannot  l)e  regarded  asanex- 
tinguisinnent  of  the  debt  of  Coburn,  so  as 
to  make  him  immediately  liaiile  to  the  plain- 
.  tiff  upon  the  giving  of  the  note.  The  debt 
arose  l)y  the  purduise  and  execution  of 
the  note.  That  was  tlie  contract,  that  he 
Bhould  have  the  goods  on  giving  the  note. 
Tlie  giving  of  a  note,  bj-  an  infant,  for  a 
debt  due  for  necessaries,  does  not  cancel 
tliat  del)t,  unless  the  note  be  ])aid  (3  New 
Ilanip.  348)  ;  and  tlic  giving  of  such  a 
note,  with  a  surety,  certainly  does  not 
furnish  evidence  that  tiiciTcditor  intended 
to  discharge  the  infant  from  all  resi)onsi- 
liiiity  on  account  of  the  demand  due  Iiim 
l)y  reason  of  the  articles  funiishcil.  If  the 
infant  is  not  liable  on  the  note,  as  be 
would  not  be  if  he  elected  to  avoid  sucli 
linliility,  an  assumpsit  upon  the  delivery 
of  the  goods  must  be  considered  as  sub- 
sisting against  iiim,  and  the  note  of  the 
surety  be  regarded  as  a  collateral  security 


for  the  payment.  In  this  case  nothing  was 
paid  at  the  time  by  the  plaintiff.  He  only 
became  surety  for  the  payment.  That 
was  the  contract  as  agreed  to  Ijy  all  the 
parties.  Had  the  plaintiff  given  his  sole 
note,  the  case  might  have  been  different. 
He  would  then  have  assumed  the  whole  lia- 
bility, by  the  terms  of  the  agreement,  and 
the  goods  have  been  delivered  entirely 
upon  his  credit.  The  defendant  would 
have  had  no  further  concern  with  it,  and 
no  right  to  interfere.  But  that  was  not 
the  case  here.  Tlie  defendant  bad  the 
right  to  pay  and  take  u]i  the  note  given  by 
himself  and  the  plaintiff,  and  he  had  this 
rigiit  only  because  he  was  in  fact  a  debtor, 
lie  most  uncpiestionably  had  a  right  to 
pay  a  note  u])on  wliich  he  was  a  jiromisor. 
Su])pose  lie  had  paid,  whose  debt  would  he 
have  discharged  (  It  tlie  jjlaintilfs  debt, 
then  he  must  iiave  had  a  claim  against  the 
plaintiff.  But  no  such  claim  could  have 
arisen  uj)on  such  payment.  If  he  had 
paid,  tiien  lie  would  iiave  discharged  his 
own  debt.  But  how  could  this  be,  if  liis 
di'l)t  had  l)een  paid  by  the  giving  of  tiic 
note  itself;  Had  the  defendant  paid  tlie  note 
no  right  of  action  would  ever  have  accnied 
to  tiie  plaintiff  against  liim.  Under  such 
circumstances  there  is  no  ground  for  the 
position  tliat  the  giving  of  the  note  was  of 
itself  u  ))ayment  of  the  defendant's  debt, 
so  that  a  cause  of  action  arose  immedi- 
ately to  the  plaintiff  upon  its  execution  ; 
and  tlie  jury  wci-e  correctly  instructed  iliat 
tlic  cause  of  action  arose  when  the  de- 
fendant paid  tlie  money.  Clark  r.  Fox- 
craft,  7  Green.  348." 


495*  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

of  the  *guarantor  is  measured  by  that  of  the  principal,  and  will 
be  so  construed,  unless  a  less  or  a  larger  liability  is  expressly 
assumed  by  the  guarantor ;  as  if  he  guaranteed  payment  of  a 
note  by  an  indorser,  whether  the  indorser  were  notified  or  not. 
No  especial  words,  or  form,  are  necessary  to  constitute  a 
guaranty.  If  the  parties  clearly  manifest  that  intention,  it  is 
sufficient;  and  if  the  guaranty  admits  of  more  than  one  inter- 
pretation, and  the  guarantee  has  acted  to  his  own  detriment 
with  the  assent  of  the  other  party,  as  by  advancing  money,  on 
the  faith  of  one  interpretation,  that  will  prevail,  although  it  be 
one  which  is  most  for  the  interest  of  tlie  guarantee,  (g-)  Still 
the  contract  is  construed,  if  not  strictly,  accurately,  [h)  and  a 
guaranty  of  the  notes  or  debts  of  one,  not  only  does  not  extend 
to  his  notes  given  jointly  with  another,  (i)  but  if  that  one  varies 
his  business  so  as  to  change  his  liability  from  that  which  it  was 
intended  to  guaranty,  it  would  seem  that  the  guarantor  is  dis- 
charged, (j)  And  the  guarantor  who  pays  the  debt  of  his  prin- 
cipal is  entitled  to  all  the  securities  of  the  creditor ;  (k)  and 
equity  will  restrain  a  guarantee  from  enforcing  his  guaranty, 
until  he  has  done  what  is  necessary  to  turn  these  securities  to 
account,  where  he  alone  can  do  this.  (/)  So  if  the  creditor 
agree  with  the  principal  that  the  debt  shall  be  reduced  or 
abated  in  a  certain  proportion,  the  guarantor  consenting,  he 
cannot  hold  the  whole  of  the  original  guaranty,  but  must  per- 
mit that  to  be  abated  or  reduced  in  the  same  proportion,  (m) 
But  after  the  guarantor  has  paid  the  debt,  he  has  no  right  to 
demand  an  assignment  to  himself  of  the  debt,  or  of  the  instru- 
ment which  creates  or  expresses  the  debt,  if  a  promissory  note, 
bond,  or  the  like,  for  the  very  reason  that  the  debt,  and  with 

(g)  Bell  V.  Bruen,  1  How.  186;  Law-  Wrio-ht  jj.  Morley,  11  Ves.  12;  Copis  r, 

rence  v.  McCalmont,  2  id.  449  ;  Tatum  v.  Middleton,    T.    &   R.    224  ;    Hodgson  v. 

Bonner,  27  Miss.  760.  Shaw,  3  My.  &  K.  183  ;  Yongc  'v.  Rey- 

(/;)  Bigelow  v.  Benton,  14  Barb.  123;  nell,  15  E.'L.  &  E.  237;  Mt-Daniels  r. 

Ryan  v.  Trustees,   14  111.  20 ;  Fisher  v.  Flower  Brook  Manf.  Co.  22  Verm.  286 ; 

Cutter,  20  Missouri,  206.  Grove  ;>.  Bricn,  1   Maryl.  438  ;  Mathews 

(i)  Russell  V.  Perkins,  1  Mason,  368.  v.  Aikin,  1  Comst.  .')95. 

ij)   Id.;  Wright  v.   Russell,   3  Wils.  (/)  Cottin    v.   Blane,    2     Anst.    544; 

530'   2  Bl.  934  ;  Dry  v.  Davy,   10  Ad.  &  Wriglit  v.  Nutt,  3  Bro.  C.   C.  326,  1   H. 

El.  30.  Bl.  137  ;  Wright  v.  Simpson,  6  Ves.  728. 

(k)  Craythomc  v.  Swinburne,  14  Ves.  (m)  Bardwellu.  Ljdell,  7  Biug.  489. 
162;  Parsons  v.  Briddock,  2  Vern.  608  ; 

[520] 


ch:  viil] 


GUARANTY. 


*496 


it  the  instrument,  has   been  discharged,  and    so  made  of   no 
effect.  (?^) 


♦SECTION    II. 

OF    THE    CONSIDERATION. 

Although  the  promise  to  pay  the  debt  of  another  be  in  writ- 
ing, it  is  nevertheless  of  no  force  unless  founded  upon  a  con- 
sideration, (o)  It  is  itself  a  distinct  contract,  and  must  rest 
upon  its  own  consideration;  but  this  consideration  may  be  the 
same  with  that  on  which  the  original  debt  is  founded,  for  which 
the  guarantor  is  liable.  The  rule  of  law  is  this  :  If  the  original 
debt  or  obligation  is  already  incurred  or  undertaken  previous  to 
the  collateral  vuidertaking,  then  there  must  be  a  new  and  dis- 
tinct consideration  to  sustain  the  guaranty.  (/>)  But  if  the 
original  debt  or  obligation  be  founded  upon  a  good  considera- 
tion, and  at  the  time  when  it  is  incurred  or  undertaken,  or  be- 
fore that  time,  the  guaranty  is  given  and  received,  and  enters 
into  the  inducement  for  giving  credit  or  supplying  goods,  then 
the  consiueration  for  which  the  original  debt  is  incurred,  is  re- 


(n)  Copis  I'.  Middlcton,  T.  &  R.  224; 
HodfTSon  V.  Shaw,  3  My.  &  K.  183;  Pray 
r.  Maine,  7  Cusli.  253.  But  sec  Low  v. 
Hlo(l<ictt,  1  Foster,  121  ;  Goodyear  v. 
Watson,  14  liarl).  48G  ;  lodj^^crly  r.  Emer- 
son, 3  Foster,  .557;  Alden  v.  Clark,  11 
How.  Pr.  Reps.  209. 

(o)  Wain  v.  Warltcrs,  5  East,  10;  El- 
liott I'.  Giese,  7  liar.  &  J.  457  ;  Leonard  v. 
Vredenlnnsli,  8  Jolins.  29 ;  JJailev  v. 
Freeman,  4  id.  280;  Claris  r.  Small,  6 
Yprji.  418;  Aldrid^c  i\  Turner,  1  G.  & 
Johns.  427  ;  Ncolson  v.  Sanliorne,  2  New 
Hump.  414  ;  Tennv  ik  Prince,  4  Pick. 
385;  Cohl)  v.  Page',  17  Penn.  4G9.  For 
the  law  will  not,  a.s  a  pencrai  rule,  implj' 
a  consideration  from  the  fact  tliat  the 
agreement  was  in  writing.  Dodge  ?-. 
Burdoli,  13  Conn.  170;  Cutler  v.  Everett, 
33  Maine,  201.  Forbearance,  however,  is 
a  good  consideration  for  the  guaranty. 
Sage  V.  Wilcox,  6  Conn.  81  ;  Kussell  v. 
Baljcock,  14  Maine,  138.  And  if  the 
guaranty  is  given  contemporaneously 
with  the  original  debt,  no  other  considera- 

44* 


tion  is  necessary.  Bailey  v.  Freeman,  11 
Johns.  221  ;  Hunt  v.  Adams,  5  Mass. 
358  ;  Wheelwright  v.  Moore,  2  Hall,  143  ; 
Rabaud  c.  Dc  Wolf,  Paine,  580.  So 
where  the  guaranty  of  a  note  is  made  at 
the  same  time  with  its  transfer,  the  trans- 
fer is  a  sufficient  consideration  to  support 
the  guaranty.  How  v.  Kemball,  2  Mc- 
Lean, 103  ;'»Gilliglian  v.  Boardman,  29 
Elaine,  79.  But  a  guaranty  of  payment 
of  a  jiroexisting  promissory  note,  where 
the  only  consideration  is  a  past  benefit  or 
favor  conferred,  and  without  any  design 
or  expectation  of  remuneration,  is  without 
sufficient  consideration,  and  cannot  be 
enforced.  Ware  v.  Adams,  24  Maine, 
177. 

(/))  Rabaud  r.  De  Wolf,  Paine,  580  ; 
Pike  r.  Irwin,  1  Samlf.  14  ;  Elder  v. 
Warlield,  7  liar.  &  J.  391  ;  Ware  v. 
Adams,  24  Maine,  177;  Parker  i*.  Bar- 
ker, 2  Mete.  423;  Anderson  r.  Davis,  9 
Verm.  136;  Blake  v.  Parlin,  22  Maine, 
395;  Bell  r.  Welch,  9  Com.  Bench, 
154. 

[521] 


497* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


garded  as  a  consideration  also  for  the  guaranty,  (q)  It  is  not 
necessary  that  any  *consideration  pass  directly  from  the  party 
receiving  the  guaranty  to  the  party  giving  it.  If  the  party  for 
whom  the  guaranty  is  given  receive  a  benefit,  or  the  party  to 
whom  it  is  given  receive  an  injury,  in  consequence  of  the  guar- 
anty and  as  its  inducement,  this  is  a  sufficient  considera- 
tion, (r) 

Wherever  any  fraud  exists  in  the  consideration  of  the  con- 
tract of  guaranty,  or  in  the  circumstances  which  induced  it,  the 
contract  is  entirely  null.  As  where  a  guaranty  was  given  for 
the  price  of  a  large  amount  of  iron,  and  it  was  proved  that  the 
buyer,  by  arrangement  with  the  seller,  paid  something  more 
than  the  fair  price,  which  addition  was  to  go  towards  the  pay- 
ment of  an  old  debt,  the  contract  was  not  enforced  as  to  so 
much  of  the  price  as,  would  have  been  fair,  but  was  set  aside 
as  altogether  defeated  by  the  fraud,  (rr) 


{q)  Bainbridgc  v.  Wade,  1  E.  L.  &  E. 
23G  ;  Campbell  v.  Knapp,  15  Penn.  2.7  ; 
Klein  v.  Currier,  14  111.  237  ;  BLckford  v. 
Gibbs,  8  Ciish.  156  ;  Leonard  v.  Vreden- 
biirgli,  8  Jolins.  29  ;  Grabam  v.  O'Neil,  2 
Hall,  474  ;  Conkey  v.  Hopkins,  17  Jolins. 
113  ;  Gardiner  v.  Hopkins,  5  Wend.  23  ; 
llabaud  i'.  De  Wolf,  I'ainc,  580.  Sec 
How  V.  Keniball,  2  McLean,  103;  Kurtz 
r.  Adams,  7  Eng.  (Ark.)  174. 

(r)  Bickford  V.  Gibbs,  8  Cu.sh.  1,56; 
Morley  v.  Boothby,  3  Bing.  113,  Best,  C. 
J. ;  Leonard  v.  Vredenburgb,  8  Johns. 
29.  In  this  case  one  A  applied  to  B  for 
goods  on  credit,  and  B  refused  to  let  him 
Jiave  them  witliout  security,  on  which  A 
drew  a  promissory  note  for  the  amount, 
under  which  C  wrote,  "  I  f^uarantee  the 
above,"  and  the  goods  were  then  delivered. 
Held,  tliat  this  was  a  collateral  undertak- 
ing of  C ;  but  that,  as  the  transaction  was 
one  and  entire,  tlie  consideration  passing 
l)Ctwcen  A  and  B  was  sufficient  to  sup- 
port as  well  tlie  promise  of  C  as  that  of 
A,  and  no  distinct  consideration  passing 
between  B  and  C  was  necessary. 

(rr)  Jackson  r.  Duehaire,  3  T.  R.  551  ; 
Pidcock  V.  Bishop,  3  B.  &  C.  605,  5  D.  & 
II.  505.  And  Bai/lej/,  J.,  in  that  case  thus 
laid  down  the  law  :  "  It  is  the  duty  of  a 
jiai'ty  taking  a  guaranty  to  put  the  surety 
in  possession  of  all  the  facts  likely  to 
afl'ect  the  degree  of  his  responsibility  ;  and 
if  he  neglect  to  do  so,  it  is  at  his  peril. 

[522] 


....  The  plaintiff,  when  he  accepted 
the  guaranty,  knew  that  Tickell  was  to 
pay  him  not  only  the  market  price  of  the 
iron,  but  ten  shillings  per  ton  on  the  iron 
provided,  in  extinction  of  an  old  debt. 
The  concealment  of  that  jjict  from  the 
knowledge  of  the  defendant  was  a  fraud 
upon  him,  and  avoids  this  contract. 
Where  b}'  a  composition  deed  the  credi- 
tors agree  to  take  a  certain  sum  in  full 
discharge  of  their  respective  debts,  a  secret 
agreement,  by  which  the  debtor  stipulates 
with  one  of  the  creditors  to  ])ay  him  a 
larger  sum,  is  void,  upon  the  ground  that 
that  agreement  is  a  fraud  upon  the  rest 
of  the  creditors.  So  that  a  contract 
which  is  a  fraud  upon  a  tJiird  person 
may,  on  that  account,  be  void  as  between 
the  parties  to  it.  Here  the  contract  to 
guaranty  is  void,  because  afjict  materially 
alf'ecting  the  nature  of  the  ol)ligation 
created  by  the  contract  was  not  commu- 
nicated to  the  surety."  !Sce  also,  Stone 
V.  Compton,  5  Bing.'N.  C.  142  ;  Franklin 
Bank  r.  Cooper,  36  Me.  179;  Selser  v. 
Brock,  3  Ohio  State  Reps.  .302.  So  it 
was  held  m  Evans  c.  Kecland,  9  Ala.  42, 
that  a  surety  may  avoid  his  contract  for  a 
fraudulent  concealment  or  misre])rcscnta- 
tion  of  facts  by  the  creditor,  to  induce  hira 
to  become  surety,  althougli  the  contract 
for  which  he  was  bound  as  surety  is 
binding  on  his  principal.  But  it  was  held 
in  the  same  case  tJiat  a  misrepresentation 


CH.   YIII.] 


GUARANTY. 


-497 


SECTION    III. 

WHETHER   A   PROMISE   IS    ORIGINAL   OR   COLLATERAL. 

It  often  happens  that  a  promise  to  pay  the  debt  of  another  is 
not  in  writing,  but  is  nevertheless  enforced  by  the  courts,  on  the 
ground  that  it  is  an  original  promise,  and  not  a  collateral  one, 
and  therefore  not  within  the  statute  of  frauds,  (s)    The  question 


which  will  have  this  effect  must  be  the 
false  assertion  of  a  fact,  and  not  the  ex- 
pression of  an  opinion  of  the  value  or 
quality  of  the  property  sold.  Thus  a 
declaration  by  the  vendor  that  the  land  he 
was  sellinir  was  as  good  or  better  than 
other  tracts  to  which  he  referred ;  that 
there  was  a  comfortable  dwclliiiLC-house, 
<;ood  out-houses,  peach  orciiards,  &c.,  on 
tiie  land,  is  the  expression  of  an  ojiinion, 
and  not  the  assertion  of  a  fact,  tiic  incor- 
rectness or  falsehood  of  which  would 
enable  the  surety  to  avoid  his  contract. 
So  in  Martin  v.  Striblin,  I  Spcers,  2.3, 
it  was  held  that  it  is  no  discharj;e  of  a 
surety  that  he  expected,  when  he  signed 
as  surety,  that  a  tliird  person  would  also 
sign  as  surety,  and  that  such  third  person 
would  receive  from  tiie  princijial  certain 
books  and  papers,  as  an  indemnity  for  the 
suretyship ;  unless  it  is  shown  that  the 
surety  stipulated  tliat  the  paper  should 
not  have  clfcct  until  one  or  iioth  of  such 
things  were  done,  or  that  the  signature  of 
the  surety  was  obtained  by  means  of  a 
fraudulent  representation  that  such  third 
j)erson  would  sign  the  notes,  and  that  the 
princijial  would  place  in  such  third  i)cr- 
son's  iiands  his  books  and  jiapcrs,  to  be  by 
him  collected  and  ajiplicd  in  payment  of 
the  debt.  And  in  Graves  v.  Tucker,  10 
S.  &  M.  9,  it  was  decided  that  a  fraud 
practised  by  a  principal  delttor  u])on  his 
surety,  in  obtaining  tlie  signature  of  the 
surety,  does  not  discharge  him  from  his 
obligation  to  the  obligee  of  tiie  l)ond, 
unless  such  fraud  was  with  the  knowledge 
or  consent  of  the  obligee.  —  So,  where 
the  surety  of  a  note  given  for  proi)crty 
purchased  at  an  administrator's  sale,  when 
requested  by  the  yirincijial  to  sign  it,  was 
told  l)y  tiie  ])ayce  tiiat  his  signature  was 
only  wanted  as  a  form  to  complv  with  tiie 
order  of  the  ordinary,  it  was  held  tliat  no 


fi-aud  was  thereby  practised  on  the  surety 
which  could  avoid  the  note  as  to  him. 
Smvlcv  V.  Head,  2  Kicli.  oDO.  See  also, 
Kaiitofi  r.  Mathews,  10  Clark  &  Fin.  936, 
and  Hamilton  v.  Watson,  12  id.  109 ; 
The  North  British  Ins.  Co.  v.  Lloyd,  28 
E.  L.  &  E.  456. 

(.s)  Thus,  in  Allen  v.  Thompson,  10 
New  Ilamp.  .32,  tlic  plaintiff"  had  obtained 
tlie  account-book  of  his  debtor,  as  a 
jilcdge  to  secure  the  debt ;  and  the  de- 
fendant, in  consideration  that  tiie  plaintiff 
would  deliver  the  book  to  one  B.,  to  col- 
lect the  demands,  verbally  jiroinised  the 
])laiutitf  to  pay  him  the  amount  due  from 
the  debtor,  if  B.  should  not  collect  enough 
for  tiiat  purpose.  Parker,  C.  J. :  "  In 
cases  of  mere  forbearance,  there  is  no  con- 
sideration independent  of  the  debt,  tho 
forbearance  being  of  the  debt  itself;  and 
it  may,  perhaps,  be  said,  that  this  consid- 
eration, being  thus  connected  with  the 
debt,  moves  only  between  the  ])arties  to 
the  original  contract,  although  the  delay 
is  at  the  request  and  on  the  jiromisc  of  a 
third  person.  But  in  this  case  there  is 
not  only  a  new  consideration,  but  one 
which  is  distinct  from  and  independent  of 
the  debt  ;  and  the  delivery  of  the  books 
to  Bryant,  on  the  defendant's  request, 
being  in  effect  the  same  as  a  delivery  to 
the  defendant  himself,  this  new  eonsider.a- 
tion  ])asses  between  the  jjarties  to  the  new 
contract.  The  authorities  are  clear  that 
CiU^cs  of  this  description  are  not  within  the 
statute,  and  no  writing  is  necessary  to 
make  the  contract  valid."  So  in  Hilton 
V.  Dinsmore,  21  Maine,  410,  it  was  dcter- 
min<>(l  that  if  a  ])romise  by  the  defendant, 
to  pay  the  previously  existing  del)t  of  a 
third  person,  be  grounded  upon  the  con- 
sideration of  funds  placed  in  his  hands  by 
the  original  debtor,  with  a  view  to  the 
payment  of  tliis  debt,  as  well  ns  upon  an 

[523] 


498*  THE   LAW    OF   CONTRACTS.  [BOOK  III. 

what  are  the  circumstances  which  authorize  this  distinction,  has 
been  very  much  discussed,  and  very  *variously-  decided.  The 
statute  of  frauds  being  intended  to  prevent  frauds,  courts  are 
generally  reluctant  to  permit  it  to  be  so  applied  as  to  work  a 
fraud.  This  cannot  be  always  prevented.  But  the  endeavor  to 
prevent  it,  by  construing  the  promise  as  original  and  not  col- 
lateral, has  sometimes  led  to  dicta,  and  perhaps  to  decisions 
w^hich  are  hardly  to  be  reconciled  with  any  reasonable  inter- 
pretation or  application  of  the  statute.  If  we  collate  the  cases 
which  relate  to  this  question,  and  especially  those  which  seem 
to  have  been  most  carefully  considered,  we  may  draw  from 
them  this  rule ;  that  where  the  promise  to  pay  the  debt  of  ano- 
ther is  founded  upon  a  new  consideration,  and  this  considera- 
tion passes  between  the  parties  to  this  promise,  and  gives  to 
the  promisor  a  benefit  which  he  did  not  enjoy  before,  and  would 
not  have  possessed  but  for  the  promise,  then  it  will  be  regarded 
as  an  original  promise,  and  therefore  will  be  enforced,  although 
not  in  writing,  [t)  Thus,  if  the  property  of  the  debtor  be  at- 
tached, and  the  attachment  be  withdrawn  at  the  request  of  the 
guarantor,  this  is  a  good  consideration  to  support  the  guaranty, 
but  not  enough  to  make  it  an  original  promise.  But  if  the 
property  be  not  only  relieved  from  attachment,  but  delivered 
to  the  guarantor  at  his  request,  this  may  sufiice  to  make  it  an 
original  promise,  (w) 

agreement  on  the  part  of  the  phiintiff  to  servants  of  the   phiintiff  came  round  to 

forbear  to  sue,  it  is  an  orii^inal  undertak-  collect  the   pay.      When   about   to    call 

ing,  and  need  not  be  evidenced  by  writ-  upon  the  Guards,  the  defendant  told  them 

ing.     But  it  is  denied  that  a  promise  to  they  need   not    call  upon    them,  for  he 

pay  the  prior  debt  of  another,  on  the  con-  would    be    responsible   for    them.      The 

sideration  merely  of  forbearance  to  enforce  action  was  brought  against  the  defendant 

payment,  is  valid,  unless  the  promise  be  to  recover  for  the  dinner  furnished  to  the 

in  wi'iting.  Guards.     It  was  held  that  the  defendant's 

(t)  In  Tileston  v.  Nettleton,   6   Pick,  jjromise  was  not  an  original,  Init  a  collat- 

509,  it  appeared  that  the  plaintiff,   who  eral  undertaking,  and  therefore  witliin  the 

was  an  innkeeper,  on  the  4th  of  July,  1825,  statute   of   frauds.      Sec  also,    Cahill   r. 

furnished  a  dinner  for  a  public  celebration.  Bigelow,  18  Pick.  369. 

He  received  his  directions  from  a  com-  («)   Nelson   v.  Boynton,  3  Met.    396, 

mittee  of  arrangements,  of  which  the  de-  where   tliis  point    is  discussed    at  much 

fendant  was  a  member.    It  was  understood  length  and  with  great  force,  l)y  »S7ifl«-,  C. 

that  every  one  who  dined  was  to  pay  for  J. ;  Skelton  v.  Brewster,  8  Johns.  376  ; 

his  own  dinner,  and  the  committee  were  Stanly  v.  Hendricks,  13  Ire.  L.  86  ;  Kan- 

to  incur  no  liability.     Among  those  who  die  i\  Harris,  6  Yerg.  508.     In  this  last 

dined  was  a  military  comj)any,  called  the  case  a  sheriff  levied  an  execution    upon 

Hampden  Guards,  of  which  the  defendant  the  property  of  the  defendant  in  the  pos- 

was  commander.     During  the  dinner  the  session  of  a  third  person,  and  such  third 

[524] 


CH.  viir.] 


GUARANTY. 


*499 


*The  entry  in  the  books  of  the  seller  is  often  of  gi'eat  impor- 
tance in  determining  whether  a  promise  be  original  or  collateral. 
Being  made  by  the  seller,  it  is  of  course  of  far  greater  weight 
when  against  him  than  when  it  sustains  his  claim.  Suppose 
that  A  promises  to  pay  B,  if  B  will  sell  goods  which  C  is  to 
receive.  The  question  may  occur  whether  they  were  sold  to  A 
for  C's  benefit,  or  to  C  on  the  guaranty  of  A.  If,  on  examina- 
tion of  the  books  of  B,  it  appears  that  at  the  time  of  the  sale  he 
charged  the  goods  to  C,  as  s»ld  to  him,  it  would  be  almost 
decisive  agains't  B's  claim  against  A  as  the  original  ))urchaser. 
But  if  it  was  found  that  he  had  charged  the  goods  to  A,  it 
would  still  be  open  to  A  to  show  that  he  had  no  right  to  do  so. 
It  often  happens  that  a  seller  makes  such  a  charge  with  a  view 
of  enlarging  or  asserting  his  rights,  on  the  supposition  that  this 
charge  will  suffice  to  fix  the  liability  on  the  person  against  whom 
it  is  made.  But  it  is  obvious  that  such  an  entry  can  have  no 
effect,  unless  the  circumstances  of  the  sale  show  it  to  be  in  con- 
formity with  the  true  rights  and  obligations  of  the  party.  Nor 
would  an  entry  by  the  seller  to  one  party  be  absolutely  conclusive 
against  his  right  to  claim  payment  of  another  as  the  original 
purchaser,  if  he  were  able  to  show  clearly  that  the  entry  was 
made  by  mistake,  to  one  who  was  not  the  buyer,  and  without 
any   purpose    of    discharging    him    who   was   the    buyer,  (v) 


person  agreed  verbally  if  the  slierifT  would 
release  the  property  he  would  ])ay  the 
execution.  UeUl,  that  this  agreement 
was  binding  in  law  and  not  within  the 
statute  of  frauds.  In  Durham  r.  Arlcdge, 
1  Stroh.  5,  one  A  held  an  exeeution 
agaiuiit  K.  C,  the  father  of  B,  )iromised 
A  that  if  he  would  delay  enforcing  the 
execution,  lie  would  pay  him  SlOO  in  cash, 
and  the  balance  in  one  year.  The  prom- 
ise not  being  in  writing,  this  mere  sus- 
pension of  the  plaintiff's  legal  right  was 
held  not  to  constitute  sucli  a  new  and  in- 
dependent consideration  as  would  give 
effect  to  the  promise  to  pay  tiie  dcl)t  of 
another,  as  an  original  contract  Sec  also, 
Tindal  c.  Touchberrv,  .3  Strob.  L.  177; 
Blount  V.  Hawkins,  19  Ala.  100;  Fisher 
V.  Cutter,  20  Missouri,  206. 

((•)  In  Matthews  v.  Milton,  4  Yerg.  576, 
it  appeared  that  A  and  B  being  in  the 
plaintiffs'  store  together,  A  told  the  plain- 


tiffs he  would  pay  for  any  article  B  might 
take  up,  and  B  tlifrcnpon  purchased  sev- 
eral articles,  which  the  plaintiffs  charged 
to  A  and  B.  //(/(/,  tliat  tiic  promise  of 
A  was  within  the  statute  of  frauds,  as 
l)cing  a  promise  to  pay  the  debt  of  B. 
Allirr,  if  the  articles  had  been  charged  to 
A  alone,  for  then  it  would  not  have  been 
B's  debt.  See  also,  Gardiner  c.  Ho])kins, 
5  Wend.  23;  Graham  v.  O'Niel,  2  Hall, 
474 ;  Porter  v.  Langhorn,  2  Bibb,  6.3  ; 
Flanders  v.  Crolius,  1  Duer,  206.  But 
wliei-e  A  retiuestcd  B  to  sell  goods  to  C, 
promising  by  parol  to  indorse  C's  note 
for  the  price,  it  was  lichl  that  this  promise 
was  within  the  statute  of  frauds,  and 
therefore  void.  Carville  v.  Crane,  5  Hill, 
48.{.  See  also,  ConoUy  r.  Kettlewcll,  1 
(iiil,  260 ;  Hoi.kins  r.  Kichardson,  9 
(irattan,  483;  Cutler  r.  Ilinton,  6  Hand. 
509  ;  Lelund  v.  Creyon,  1  McCord,  100. 

[525] 


500*     .  THE    LAW    OF    CONTRACTS.  [BOOK  III. 

Whether  a  contract  is  collateral  or  original,  may  be  a  question 
of  construction,  and  then  it  is  for  the  court;  but  it  is  often  re- 
garded as  a  question  of  fact,  and  then  it  is  for  the  jury,  (vv) 

Sales  by  a  factor,  with  a  guaranty  of  the  price  from  the  fac- 
tor to  the  owner,  are  common  in  all  commercial  countries.  In 
Europe  they  are  commonly,  called  '-c/e/  a'edere"  *contracts; 
and  the  commission  charged  by  the  factor,  and  intended  to 
cover  not  only  his  services  in  selling,  but  his  risk  in  insuring 
the  payments,  is  called  a  "  del*  credere  commission,"  as  we 
have  remarked  before ;  but  this  phrase  is  seldom  used  here, 
although  this  kind  of  contract  is  very  common.  It  is,  in  one 
sense,  a  promise  to  pay  the  debt  of  another ;  and  it  has  been 
said  by  English  courts  that  it  must  be  in  writing,  (iv)  We 
doubt,  however,  whether- this  doctrine  would  be  held  in  Eng- 
land now ;  (iviv)  and  so  far  as  the  question  has  been  adjudi- 
cated in  this  country,  it  has  been  held,  as  we  have  already 
stated,  to  be  an  original  promise,  and  therefore  enforceable  at 
law,  although  not  in  writing,  (x)  The  promisor  in  fact  receives 
a  direct  consideration  for  this  precise  promise  from  the  promisee. 


SECTION    IV. 

OF    THE   AGREEMENT    AND    ACCEPTANCE. 

The  contract  of  guaranty,  like  every  other  contract,  implies 
two  parties,  and  requires  the  agreement  of  both  parties  to  make 
it  valid.  In  other  words,  a  promise  to  pay  the  debt  of  another 
is  not  valid,  unless  it  is  accepted  by  the  promisee.  (//)  Lan- 
guage  is   sometimes  used  by   courts  and  legists  which  might 


(vv)    See    Sinclair  v.   Kichartlson,    12  frauds,  as  being  a  promise  to  answer  for 

Verm.  33  ;  Flanders  v.  Crolius,  1  Duci',  the  default  of  anotlier. 

206.  (.r)  See  ante,  p.  78,  n.  (t,)  et  se/j. 

(if)  Chitty  on  Contracts,  196;  Gall  v.  (y)  Mozley  v.  Tinkler,   1   C.  M.  &  R. 

Comber,  1  Moore,  279.  692  ;  Mclve'r  v.  Richardson,   1  M.  &  S. 

(iviv)    Since   the   first  edition   of   tl)is  557.   A  mere  overture  or  offer  to  guaranty 

volume  was  published,  the   Court  of  Ex-  is  not  binding-  unless  accepted.    Chitty  on 

chequer /(«cef/ec/fM  in  Couturier  r.  Hastie,  Cont.   437,    n.    (1);    Caton    v.     Shaw,  2 

16  E.  L.  &  E.  562,  that  sucii  agreement  Harr.  &  Gill,  13;  Menard  v.  Scudder,  7 

by  a  factor  is  not  within  the  statute  of  Louis  Ann.  385. 

[52G] 


CII.  VIII.]  GUARANTY.  *o01 

seem  to  mean  that  there  wer.e  cases  of  guaranty  which  need  not 
be  accepted ;  but  this  is  not  accurate ;  there  are  cases  in  which 
this  acceptance  is  implied  and  presumed  ;  but  there  rnust  be 
acceptance  or  assent,  expressed  or  implied,  or  there  can  be  no 
contract.  The  true  questions  are,  .when  must  this  acceptance 
be  express  and  positive,  and  in  what  way  and  at  what  time 
must  it  be  made,  when  an  express  acceptance  is  necessary. 
And  these  questions  have  sometimes  been  found  to  be  very  dif- 
ficult. If  one  goes  *with  a  purchaser,  and  there  says  to  the 
seller,  "  furnish  him  with  the  goods  he  wishes,  and  I  will  guar- 
anty the  payment,"  and  the  seller  thereupon  furnishes  the 
goods,  this  would  be  a  sufficient  acceptance  of  the  guaranty, 
and  a  sufficient  notice  to  the  guarantor.  All  the  parts  of  the 
transaction  would  be  connected,  and  could  leave  no  doubt  as  to 
its  character.  But  if  the  guaranty  were  for  a  future  operation, 
perhaps  for  one  of  uncertain  amount,  and  offered  by  letter, 
there  should  then,  according  to  the  weight  of  authority,  be  a 
distinct  notice  of  acceptance,  and  also  a  notice  of  the  amount 
advanced  upon  the  guaranty,  unless  that  amount  be  the  same 
that  is  specified  in  the  guaranty  itself,  (z)     The  reason  of  this 

(z)  Wc  have  already  considered  tliis  Bleeker  r.  Hyde,  3  McLean,  279.  In 
subject  somewhat  in  our  chapter  on  assent.  New  Haven  County  Bank  v.  Mitchell,  15 
Sec  p.  402,  and  notes.  The  modern  cases  Conn.  206,  where  A  executed  a  writing, 
have  (juitc  g-cnerally  established  the  doc-  whereby  ^hc  agreed  with  B  for  value  re- 
trine,  that  where  the  projiosition  to  guar-  ceived,  that  he.  A,  would,  at  all  times, 
antee,  or  letter  of  credit,  is  future  in  its  hold  himself  responsible  to  B.  to  a  limited 
application,  and  uncertain  in  its  amount,  amount,  for  such  paper  as  might  be  in- 
the  guarantor  must  have  notice  that  his  dorsed  \)y  C  and  holden  by  B  within  the 
guaranty  is  accepted,  and  that  goods  are  amount  specified,  without  notice  to  be 
delivered  upon  it.  Lee  v.  Dick,  10  Pet.  given  to  A  by  B,  and  such  writing  wa* 
482  ;  Adams  i-.  Jones,  12  Pet.  207  ;  Nor-  simultaneously  delivered  by  A  and  ac- 
ton V.  Eastman,  4  Greenl.  (Bennett's  ed.)  cepted  by  B,  and  B  on  the  credit  thereof 
521  ;  Tuckcrman  v.  French,  7  Greenl.  discounted  paper  indorsed  by  C;  it  was 
(Bennett's  ed.)  11.5;  Kay  >:.  Allen,  9  /ieW,  1st,  that  no  other  acceptance  by  B  or 
Barr,  320 ;  Cremer  v.  Higginson,  1  Ma-  notice  thereof  to  A  was  necessary  to  per- 
son, 323;  Howe  v.  Nickels,  22  Maine,  feet  the  obligation  of  A ;  2d,  that  no  notice 
17.t;  Hill  V.  Calvin,  4  How.  [Miss.]  231  ;  to  A  of  the  amount  of  credit  given  liy  B 
Taylor  v.  Wetmore,  10  Ohio,  490  ;  Law-  on  the  paper  indorsed  by  C  was  necessary, 
son  V.  Townes,  2  Ala.  373;  Mussey  r.  this  being  expressly  dispensed  with  by  the 
Rayner,  22  Pick.  223  ;  Wildes  c.  Savage,  terms  of  the  contract. —  Some  authorities 
1  Story,  22.  And  sec  Lowe  v.  Beckwith,  hold  that  not  only  must  the  guarantor 
14  B.  Monroe,  187.  This  notice  must  l)c  have  reasonable  notice  of  the  accci)tancc 
given  in  a  rciisonable  time  after  it  is  ac-  of  his  giuiranty,  but  also  of  the  amount  of 
cepted.  Id.  Notice  of  the  acceptance  is  goods  delivered  upon  it,  and  that  payment 
not  necessary,  however,  where  the  accept-  for  the  same  has  been  demanded  of  the 
ancc  is  contemporaneous  with  the  guar-  original  debtor.  Howe  v.  Nickels,  22 
anty.     Wildes  v.  Sav;ige,   1   Story,  22;  Maine,   175.     And   see   Union  Bank   of 


502* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


is,  that  the  *guarantor  may  know  distinctly  his  liability,  and 
have  the  means  of  arranging  his  relations  as  he  would  with  the 
party  in  whose  favor  the  guaranty  is  given,  and  take  from  him 
security  or  indemnity.  From  the  reason  of  the  thing  we  may 
state  the  rule  to  be,  that  every  guarantor  must  have  tliis  oppor- 
tunity; and  unless  the  transaction  is  such  that  of  itself  it  gives 
him  all  the  knowledge  he  needs,  at  a  proper  time,  then  this 
knowledge  must  be  given  him  by  specific  notice. 

As  to  the  manner  of  the  notice,  no  cases  have  prescribed  any 
special  form,  (a)  nor  is  the  time  precisely  determined.     But  the 


Louisiana  v.  Bowman,  9  Louis.  Ann.  195  ; 
Farm.  &  Mcc.  Banki;.  Kcrclieval,2  Mich. 
504.  So  in  Clark  v.  Remington,  1 1  Met. 
361,  R.  by  his  guaranty  engaged  to  pay 
C.  for  goods  which  C.  might,  from  time 
to  time,  sell  and  deliver  to  D.  C.  ac- 
cepted the  guaranty,  and  K.  had  notice 
that  it  was  accepted.  C.  delivered  one 
parcel  of  goods  to  D.,  for  which  D.  sea- 
sonably paid.  In  September,  1842,  C. 
delivered  other  goods  to  D. ;   in  March, 

1843,  took  D.'s  note  therefor,  payable  in 
twenty  days,  which  was  never  paid.  In 
June,  1843,  D.  was  in  business,  and  had 
property  sufficient  to  pay  C.     In  April, 

1844,  D  was  discharged  from  his  debts 
under  the  insolvent  laws,  but  paid  no 
dividend,  and  C.  did  not  prove  his  claim 
against  him  under  the  proceedings  in  in- 
solvency. C.  gave  E.  no  notice  of  the 
credit  which  lie  had  given  to  D.,  nor  of 
the  state  of  D.'s  accounts  with  him,  nor  of 
D.'s  failure  to  meet  his  payments,  until  the 
1st  of  Januai'y,  1845,  when  he  demanded 
payment  from  R.  of  the  amount  due  to 
him  from  D.  Held,  that  R.  was  dis- 
charged from  his  liability  on  the  guaranty 
by  C.'s  omission  to  give  him  season- 
able notice  of  the  amount  due  from  D., 
and  of  D.'s  failure  to  pay  it.  See  also 
McGuire  v.  Newkirk,  1  Eng.  [Ark.]  142. 
In  Craft  v.  Isham,  13  Conn.  28,  the  facts 
were  that  in  A[)ril,  1832,  A  gave  B  a  writ- 
ing, guaranteeing  the  payment  to  B  of 
goods  wliich  he  should  sell  to  C,  to  the 
amount  of  $1,000,  if  C.  should  fail  to  pay 
at  the  end  of  three  years.  C  was  the  son- 
in-law  of  A,  and  A  daily  passed  C's  store, 
and  occasionally  purchased  goods  there. 
B  furnished  C  goods,  to  the  amount  of 
about  $1,000,  between  the  said  April  and 
November  following,  on  a  credit  of  four 
months,   the  last  credit  expiring   on  the 

[528] 


1  Oth  of  March,  1 833.  In  November,  1 834, 
C  became  insolvent,  and  never  paid  for 
the  goods.  No  notice  was  at  any  time 
given  to  A  of  the  acceptance  of  the  guar- 
anty by  B,  nor  was  any  notice  given  to 
him  of  the  amount  of  the  debt  clue  from 
C  for  the  goods,  until  November,  1835. 
In  an  action  by  B  against  A  on  the 
guaranty,  it  was  held,  that  the  defendant 
was  entitled  to  notice,  within  a  reason- 
able time,  of  the  accei)tance  of  the  guar- 
anty liy  tlie  plaintifif,  and  of  the  amount  of 
the  goods  furnished  under  it,  and  that  the 
notice  given  in  this  case  was  not  within  a 
reasonable  time.  In  New  York,  however, 
in  the  case  of  Douglass  v.  Rowland,  24 
Wend.  35,  the  court  say,  "  Unless  there 
is  something  in  the  nature  of  the  contract 
or  terms  of  the  writing,  creating  or  imply- 
ing the  necessity  of  acceptance  or  notice 
as  a  condition  of  liability,  neither  are 
deemed  requisite."  And  in  Union  Bank 
v.  Coster's  Ex'rs,  3  Comstock,  212,  the 
court  referring  to  Douglass  v.  Howland 
and  Smith  i\  Dann,  6  Hill,  543,  say : 
"  We  must  hold  the  law  to  be  settled  in 
this  State,  that  where  the  guaranty  is  ab- 
solute no  notice  of  acceptance  is  neces- 
sary." And  see  Bright  r.  McKnight,  1 
Sneed,  158. 

(a)  It  is  immaterial  how  the  notice  is 
given  to  the  guarantor,  whether  by  the 
party  accepting  the  guaranty,  or  him  in 
whose  favor  it  is  given.  Reasonable  knoiol- 
edge  on  the  part  of  the  guarantor  that  his 
guai'anty  is  accepted  is  sufficient.  Oakes 
V.  Weller,  16  Verm.  63,  13  Verm.  106; 
Menard  v.  Scudder,  7  Louis.  Ann.  385. 
An  acknowledgment  by  the  guarantor  of 
his  liability,  and  a  promise  to  pay,  super- 
sedes the  necessity  of  proving  notice. 
Peck  V.  Barney,  13'  Verm.  93.  But  see 
Reynolds  v.  Douglass,  12  Pet.  497. 


CH.  VIII.] 


GUARANTY. 


*o03 


notice  must  be  given  in  a  resonable  time  ;  and  that  time  will 
be  reasonable  which  secures  to  the  guarantor  all  rights  and 
means  of  protecting  himself,  (b) 


SECTION    V. 

OF  THE   CHANGE   OF   LIABILITY. 

The  guarantor  cannot  be  held  to  any  gi-eater  extent  than  the 
original  debtor,  either  in  point  of  amount  or  of  time,  (c)  *Nor 
can  this  liability  be  extended  or  enlarged  by  operation  of  law 
without  his  consent.  This  would  appear  to  be  a  plain  and 
certain  principle  of  law,  although  there  are  some  cases  which 
seem  to  oppose  it.  (d)  If  one  becomes  bound  for  the  fidelity 
of  an  officer  in  a  corporation  created  by  a  statute  for  a  limited 
period,  and  after  that  expires  the  charter  is  renewed,  but  no 
new  bond  given,  and  no  confirmation  of  the  old  one,  it  has 
been  held  in  New  Hampshire  that  the  surety  is  still  bound,  {e) 


(h)  What  is  a  reasonable  time,  the  facts 
not  being  in  dispute,  seems  to  be  entirely 
a  (lucstioii  of  law,  and  not  projjer  to  be 
submitted  to  the  jury.  Ciaft  c.  Isham,  13 
Conn.  28 ;  Howe  v.  Nickles,  22  Maine, 
175  ;  Lowrv  v.  Adams,  22  Verm.  160. 

(c)  Walsh  l:  Bailie,  10  Johns.  180; 
Tunison  v.  Cramer,  2  South.  498 ;  Clark 
V.  Bush,  3  Cow.  15\  ;  United  States  v. 
Boyd,  1.5  Pet.  187  ;  Fisher  i'.  Salmon,  1 
(.'ala.  413.  The  liability  of  the  jruarantor 
will  be  deemed  coextensive  with  tliat  of 
tlie  j)rineipal,  unless  it  be  expressly  limit- 
ed. CuriiiifT  (..  Chalklen,  3  JM.  &"S.  502. 
A  guarantor  is  not  bound  beyond  the  fair 
import  of  the  actual  tenns  of  his  engage- 
ment. Miller  v.  Stewart,  9  Wheat.  680, 
720  ;  Wardens  of  St.  Saviour's  »-.  Bostock, 
5  B.  &  r.  175;  Borden  c.  Houston,  2 
Tex.  .594. 

((/)  Thus,  in  Reed  v.  FuUum,  2  Pick. 
158,  where  a  surety  became  boiuul  for  a 
poor  debtor,  "  that  he  would  not  dupait 
without  the  exterior  bounds  <if  tlu-  del)tor's 
liberties,"  and  at  the  time  tlie  bond  was 
given  the  "  del)tor's  liberties  "  extended 
tlirough  the  whole  county,  but  they  were 
subseipiently  reduced  to  much  more  nar- 

voL.  I.  45 


row  limits,  it  was  held  that  the  surety  was 
liable  for  the  eseajie  of  the  debtor,  beyond 
the  last-mentioned  limits,  although  he  had 
not  passed  beyond  the  liberties  as  they 
existed  when  the  bond  was  given. 

(e)  Exeter  Bank  v.  Rogers,  7  New 
Hamp.  21.  The  facts  were  that  the  Ex- 
eter Bank  was  incorporated  by  an  act  of 
the  legislature,  in  the  year  1803,  to  con- 
tinue for  the  term  of  twenty  yeai-s  from 
January  1,  1804.  In  1822  an  additional 
act  of  the  legislature  was  ))assed,  which 
provided  that  the  first  act  should  remain 
and  continue  in  force  for  a  further  term  of 
twenty  years  from  Januaiy  1,  1824  ;  that 
there  should  be  no  division  of  the  capital 
stock  without  the  consent  of  the  legisla- 
ture, and  that  the  bank  should  not  have  in 
circulation  at  any  time  bills  exceeding  in 
amount  the  capital  stock  actually  paid; 
any  cashier  or  other  officer  violating  these 
provisions  to  forfeit  not  less  than  51,000, 
nor  more  than  810,000..  R.  wa.s  appointed 
cashier  of  the  bank  in  1809,  gave  bond 
with  sureties  for  the  faiihtul  di-cliarge  of 
the  duties  of  the  otlicc,  and  cuiitinucd 
c:ishier  until  1830.  It  was /«/</  that  the 
bond  covered  idl  tlic  time  which  R.  re- 

[  529  ] 


504* 


THE   LAW    OF   CONTRACTS. 


[book  hi. 


But  this  question  has  been  decided  differently,  *and  more  in 
accordance  with  the  principles  of  the  law  of  contracts,  in  Mary- 
land. (/)  There  the  surety  was  held  to  be  discharged,  on  the 
ground  that  his  liability  was  exactly  defined  when  he  assumed 


mained  in  office,  and  that  the  sureties 
were  not  discharged  by  any  of  tlio  ])ro- 
visions  in  tlie  additional  act  of  tlic  legis- 
lature. And  Rir/ianlsun,  C.  J.,  in  giving 
the  opinion  of  the  court,  observed  :  "  The 
true  rules  of  law  to  be  deduced  from  all 
the  cases  on  this  subject,  are  these.  When 
the  term  of  office  is  limited  to  a  particular 
period,  as  a  year  or  five  years,  and  the 
person  appointed  cannot  continue  in  office 
for  a  longer  period  without  a  new  appoint- 
ment, then  the  official  bond,  if  notliing 
appear  to  tlie  contrary,  is  presumed  to  be 
intended  to  be  confined  to  the  particular 
term ;  and  if  the  officer  be  reappointed 
there  must  be  a  new  liond.  But  wlien  an 
office  is  held  at  the  will  of  tliose  who  make 
the  appointment,  and  is  not  limited  to 
any  certain  term,  then,  the  bond  is  pre- 
sumed to  be  intended,  if  nothing  appear 
to  the  contrary,  to  cover  all  the  time  the 
person  appointed  shall  continue  in  office 
under  the  appointment.  Thus  a  sheriff 
is  appointed  in  this  State  to  hold  his  office 
during  the  term  of  five  years,  and  cannot 
hold  it  beyond  that  term  without  a  new 
appointment.  The  bond  he  gives  does  not 
therefore  extend  beyond  the  term  for  which 
he  is  ai)pointed.  But  the  deinities  of  the 
sheriff  hold  their  offices  at  the  will  of  the 
sheriff,  and  their  bonds  may  extend  to  any 
period  during  which  they  are  continued  in 
office,  notwithstanding  the  sheriff  may  in 
the  mean  time  l)e  re-ap])ointed,  and  be 
compelled  to  give  new  bonds  himself. 
These  rules  are  founded  in  sound  reason 
and  good-sense.  The  presumption  which 
the  law  makes  as  to  the  intention  of  the 
parties  to  the  bond  is  the  natural  pre- 
sumption in  both  cases.  Kow  we  are  of 
opinion  that  tlie  terms  of  the  condition  in 
this  case  are  liroad  cnougli  to  embrace  the 
whole  term  during  which  Rogers  was 
cashier,  and  that  there  is  nothing  in  the 
form  of  the  appointment,  the  nature  of  the 
office,  the  words  of  the  condition,  or  the 
conduct  of  the  parties,  that  gives  the 
slightest  indication  of  any  intention  in  any 
party  that  the  bond  should  be  limited  to 
the  period  mentioned  in  the  original  char- 
ter as  the  termination  of  the  corporation." 
(f)  Union  Bank  v.  Kidgely,  1  Harr.  & 
Gill,  324,  which  was  an  action  against  the 
sureties  of  a  cashier  for  the  faithful  pcr- 

[530] 


formance  of  his  duties.  The  charter  of 
the  bank  expired,  and  was  extended  by  a 
new  act  of  the  legislature.  The  alleged 
default  of  the  cashier  occurred  after  the  re- 
enactment  of  the  charter.  The  court 
held  that  where  an  act  of  incorporation, 
under  which  a  bond  was  taken  to  se- 
cure the  good  conduct  of  one  of  the 
officers  of  the  corporation,  was  limited  in 
its  duration  to  a  certain  period,  the  bond 
must  have  the  same  limitation ;  because, 
the  parties  looking  to  that  act,  it  would 
seem  to  be  very  clear  that  no  responsibil- 
ity was  contemplated  beyond  the  period  of 
its  specified  existence.  The  extension  of 
the  charter  beyond  the  period  of  its  first 
limitation  by  legislative  authority  does  not 
enter  into  the  contract,  and  cannot  enlarge 
it.  See  S.  C.  Society  v.  Johnson,  1  Mc- 
Cord,  41.  In  the  late  case  of  Bamford  v. 
lies,  3  Exch.  380,  a  bond,  reciting  that  A 
was  appointed  assistant  overseer  of  the 
parish  of  M.,  v/as  conditioned  for  the  due 
performance  of  his  duties,  "  thenceforth 
from  time  to  time,  and  at  all  times,  so 
long  as  he  should  continue  in  such  office." 
On  the  25th  June,  1840,  a  vestry  meeting 
was  held,  at  which  A  was  elected  .assistant 
overseer  until  the  25th  March,  1841,  at  a 
salary  of  8d.  in  the  pound  on  some  sums 
collected,  and  4^^.  on  others.  Two  jus- 
tices, by  their  warrant,  dated  9th  July, 
1840,  reciting  the  vestry  resolution,  and 
that  tins  salary  had  been  fixed  for  the 
execution  of  his  office  until  the  25th 
March  then  next,  stated,  that  in  pursuance 
of  the  59  Geo.  3,  c.  12,  they  appointed 
him  assistant  overseer.  On  tiie  25th 
March,  1841,  he  was  again  elected  to  the 
same  office,  at  a  salary  of  .£50  per  annum, 
and  was  re-appointed  by  the  justices,  and 
he  continued  to  be  so  reelected  and  re-ap- 
pointed by  the  justices  until  March,  1846. 
On  ceasing  to  hold  office,  he  retained  mon- 
eys in  his  hands.  Held,  that  the  sureties  were 
not  liable  on  the  bond.  See  also  Mayor 
of  Berwick-npon-Tweed  v.  Oswald,  16  li. 
L.  &  E.  236  ;  Erank  v.  lidwards,  16  E.  L. 
&  E.  477  and  note ;  Northwestern  Kail- 
way  Co.  V.  Whinrav,  26  E.  L.  &  E.  488 ; 
Kitson  V.  Julian,  30  E.  L.  &  E.  326  ; 
Jamison  i\  Cosby,  II  Hnm])li.  273.  And 
see  OsAvald  v.  Mayor  of  Berwick  upon 
Tweed,  26  E.  L.  &  E.  85. 


en.  VIII.] 


GUARANTY. 


-504 


it,  and  could  not  be  enlarged  or  varied  without  his  consent, 
either  by  the  party  receiving  the  guaranty  or  by  the  operation 
of  law. 

The  Supreme  Court  of  the  United  States  have  taken  strong 
ground  upon  this  point.  They  have  decided  that  the  surety  is 
discharged  not  merely  by  payment  of  the  debt  or  a  release  of 
the  principal,  but  by  any  material  change  in  the  relations  be- 
tween the  principal  and  the  party  to  whom  he  owes  a  debt  or 
duty  ;  and  that  the  surety  cannot  be  held  in  such  case  by  show- 
ing that  the  change  was  not  injurious  to  him.  For  he  had  a 
right  to  judge  for  himself  of  the  circumstances  under  which  he 
was  willing  to  be  liable,  and  to  stand  upon  the  very  terms  of 
his  contract,  (g-) 


(7)  Miller  v.  Stewart,  9  "Wlicat.  680. 
In  this  case  a  bond  was  given,  conditioned 
for  the  faithful  pcrfornianee  of  the  duties 
of  the  office  of  deputy  collector  of  direct 
taxes  for  eij^ht  certain  townships,  and  the 
instrument  of  the  appointment,  referred  to 
in  the  bond,  was  afterwards  altered,  so  as 
to  extend  to  another  townshiji,  without 
the  consent  of  the  sureties.  The  court 
lifhl,  that  the  surety  was  dischargod  from 
his  responsibility  for  moneys  sul)sequently 
collected  by  his  principal.  See  also, 
United  States  v.  Tillotson,  Paine,  .30.5  ; 
United  States  v.  Hillega.s,  ;i  Wash.  C.  C 
R.'  70  ;  Postmaster-General  v.  Kccder,  4 
id.  678  ;  Chute  v.  Pattee,  37  Me.  102.  In 
Miiyhcw  I'.  Boyd,  5  Maryl.  102,  it  was 
licld  that  any  dealings  with  the  principal 
dei)tor  by  the  cre<litor,  which  amount  to 
a  departure  from  the  contract  by  which  a 
surety  is  bound,  and  which  hi/  possil/i/iti/ 
mifjlil  materially  vary  or  enlarge  the  hit- 
ter's liability  without  bis  assent,  discharges 
the  surety.  In  the  late  case  of  IJonar  v. 
McDonald,  3  House  of  I^)rds  Cases,  226, 
1  E.  L.  &  E.  1,  in  the  House  of  Lords, 
the  facts  were,  that  in  a  loud  by  caution- 
ers (sureties)  for  the  cai-cful  attention  to 
business  and  the  faithful  discharge  of  the 
duties  of  an  agent  of  a  bank,  it  was  ]»ro- 
vided  "that  he  should  have  no  other 
business  of  any  kinil,  nor  be  connected  in 
nny  shape  with  any  trade,  manufacture,  or 
mercantile  copartnery,  nor  l)C  agent  for 
any  inrlividual  or  copartnery  in  any  man- 
ner or  way  whatsoever,  tior  lie  serurili/  for 
any  iiidiriiliuil,  or  ropnrtncri/  in  uuij  mtiiinfr 
or  vdi/  ivhalsopver."  The  bank  subse- 
quently,  without  the  knowledge  of  the 


sureties,  increased  the  salary  of  the  agent, 
he  undertahinfj  to  hear  onefoinih  part  of  all 
kisfifs  wliirli  iiiiijJit  he  incurred  hij  liis  dis- 
counts. Jlcld,  affirming  the  decision  of  a 
majority  of  the  court  below,  that  this  was 
such  an  alteration  of  the  contract,  and  of 
the  liability  of  the  agent,  that  the  sureties 
were  discharged,  notwithstanding  that  the 
loss  arose,  not  from  discounts,  but  from 
imi)roper  conduct  of  the  agent.  And  see 
Small  r.  Cnrrie,  27  E.  L.  &  E.  .304.  But 
in  Stewart  r.  M'Kean,  29  iC.  L.  &  E.  383, 
the  plaintiffs,  bottle  manufacturers,  ap- 
pointed W.  M.  their  agent  for  the  sale  of 
bottles,  on  commission,  and  received  the 
following  guarantee  :  "  I  hereliy  agree  to 
guarantee  my  brother,  W.  M.'s  intromis- 
sures,  as  your  agent  in  Leith,  to  the  extent 
of  .500/."  The  terms  of  sale  between  the 
plaintiffs  and  W.  M.,  at  the  time  of  the 
guarantee,  were  that  the  moneys  received 
.should  be  remitted  from  time  to  time,  and 
an  account  of  sales  rendered  at  the  end  of 
each  month,  or  when  required,  and  an 
account  current  every  three  weeks.  It 
was  .soon  after  agree<l  between  tiie  plain- 
tiffs and  W.  M.  that  the  account  current 
should  be  rendered  every  si.\  months,  and 
sul)sc(iiiciuly,  in  pursuance  of  an  agree- 
ment l)etwecn  them,  W.  M.  from  time  to 
time  gave  his  promissory  notes  to  the 
plainfiHs,  payable  foUr  moiuhs  from  ilate, 
for  sums  having  no  relation  to  the  amoimt 
due,  transmitted  W.  M.  the  dlHcivnce  l)e- 
twcen  thi>  monc_v  then  in  his  liand<  and 
the  amount  of  tin'  notes.  The  dclVndant 
liad  no  knowledge  of,  and  never  in<piircd 
a.s  to  the  original  or  subsequent  tciins  of 
delivery.     It  was  held,   (Pollock,  C.  B., 

[531] 


505*-506' 


THE   LAW   OF   CONTRACTS. 


[book  III. 


*Any  thing,  therefore,  which  operates  as  a  novation,  dis- 
charges the  surety  So  if  a  new  note  be  given  in  discharge  of 
a  former  one;  (//)  and  it  has  been  adjudged,  upon  good  reasons, 
that  where  a  surety  is  in  fact  discharged  by  a  novation,  or  by  a 
material  change  of  the  debt,  and  in  ignorance  of  his  being  thus 
freed  from  his  liability  makes  a  subsequent  acknowledgment  of 
his  liability,  he  cannot  be  held  thereon,  (i)  But  the  guarantor 
may  assent  to  the  change,  and  waive  his  right  of  claiming  a 
discharge  because  of  it.  (j) 

In  general,  a  guaranty  to  a  partnership  is  extinguished  by  a 
change  in  the  firm,  although  the  copartnership  name  is  not 
changed,  (k)    This  has  been  held  to  be  the  effect  of  *such  change. 


dissent  lev  te,)  that  the  alteration  in  the  mode 
of  accounting  and  payii>g'  did  not  discharge 
the  surety. 

(h)  Burge  on  Suretyship,  B.  2,  ch.  5; 
Letclier  v.  Bank  of  the  Commonwealth,  1 
Dana,  82  ;  Castlcman  v.  Holmes,  4  J.  J. 
Marsh.  1  ;  Bell  v.  Martin,  3  Han-.  167  ; 
Fanners  and  Mechanics'  Bank  v.  Kerclie- 
val,  2  Mich.  504. 

(/)  Merrimack  Co.  Bank  v.  Brown,  12 
New  Hump.  320 ;  Fowler  v.  Brooks,  13 
id.  240.  See  also,  Koe  v.  Harrison,  .2 
T.  R.  42.5. 

(j)  Fowler  v.  Brooks,  13  New  Hamp. 
240.  In  tills  case  it  was  determined  that 
if'a  surety,  with  knowledge  of  the  fact  that 
an  agreement  for  an  extension  of  time  has 
been  made  between  the  creditor  and  the 
principal,  make  a  new  promise  to  pay  the  . 
debt,  he  cannot  afterwards  avail  himself 
of  the  agreement,  as  a  discharge  of  his  lia- 
bility, notwithstanding  there  was  no  new 
consideration  for  his  promise.  And  see 
Ex  parte  Harvey,  27  E.  L.  &  E.  272. 

(k)  Bellairs  v.  Ebsworth,  3  Camp.  52  ; 
Russell  V.  Perkins,  1  ]\Iason,368  ;  Weston 
V.  Barton,  4  Taunt.  673.  It  was  here 
held  tinit  a  bond  conditioned  to  repay  to 
five  persons  all  sums  advanced  by  them, 
or  any  of  them,  in  their  capacity  of  bank- 
ers, will  not  extend  to  sums  advanced 
after  the  decease  of  one  of  tlie  five  !)y  the 
four  survivors,  the  four  tiien  acting  as 
bankers.  Jlfdiis field,  C.  J.,  observed : 
"  The  question  here  is,  whether  the  origi- 
nal partnership  being  at  an  end,  in  conse- 
quence of  the  death  of  Golding,  the  bond 
is  still  in  force  as  security  to  the  surviving 
four,  or  whether  that  political  ])ersonage, 
as   it   may  be    called,  consisting  of  five, 

'  [532] 


being  dead,  the  bond  is  not  at  an  end.  .  . 
From  almost  all  the  cases,  in  truth  we  may 
say  from  all,  (for  though  there  is  one  ad- 
verse case  of  Barclay  v.  Lucas,  the  pro- 
priety of  that  decision  has  been  very  much 
questioned,)  it  results  that  where  one  of 
the  obligees  dies,  the  security  is  at  an  end. 
It  is  not  necessary  now  to  enter  into  the 
reasons  of  those  decisions,  but  there  may 
be  very  good  reasons  for  such  a  construc- 
tion ;  it  is  very  probable  that  sureties  may 
be  induced  to  enter  into  such  a  security 
by  a  confidence  which  they  repose  in  the 
integrity,  diligence,  caution,  and  accuracy 
of  one  or  two  of  the  partners.  In  the  na- 
ture of  things,  there  cannot  be  a  partner- 
ship consisting  of  several  persons,  in  which 
there  are  not  some  jiersons  possessing 
tliese  qualities  in  a  greater  degree  than 
the  rest ;  and  it  may  be  that  the  partner 
dying,  or  going  out,  may  be  the  very  pci'- 
801}  on  whom  the  sureties  relied  ;  it  would 
therefore  be  very  unreasonable  to  hold  the 
surety  to  his  contract  after  such  change." 
See  also  Bodenham  v.  I'urchas,  2  B.  & 
Aid.  39.  But  in  New  Haven  County 
Bank  r.  Mitchell,  15  Conn.  206,  the  facts 
were  as  follows  :  The  guaranty  of  A.,  by 
its  terms,  made  him  responsible  to  B.,  a 
banking  institution,  for  such  jjaper  as 
slioukl  be  indorsed  by  the  firm  of  S.  M.  & 
G.,  and  held  by  B.,  and  bound  A.  to  save 
B.  harmless  from  all  loss  which  B.  might 
sustain  by  reason  of  holding  ] taper  in- 
dorsed by  said  firm.  The  partnership  of 
S.  M.  &  G.  was  afterwards  dissolved,  of 
which  B.  had  notice.  The  partners  then 
executed  a  ])Ovver  of  attorney  to  M.,  who 
had,  previously  to  the  dissolution,  trans- 
acted nearly  all  the  bunk  business  of  the 


en.  viri.] 


GUARANTY. 


*507 


although  the  guaranty  given  to  the  firm  was  expressly  for  "ad- 
vances by  them,  or  either  of  them."  The  mere  fact  that  the 
partnership  is  very  numerous,  does  not  seem  to  vary  this  rule, 
if  the  guaranty  be  given  to  the  whole  firm.  *But  where  the 
partnership  was  numerous,  and  seven  of  the  members  were 
trustees  for  the  firm,  and  a  bond  was  given  to  these  trustees  to 
secure  the  faithful  services  of  the  clerk  of  the  company,  and  a 
part  of  the  trustees  died,  there  it  was  held  that  the  surviving 
trustees  might  maintain  an  action  on  the  bond,  although  it  was 
shown  that  there  had  been  changes  in  the  company.  (/) 

A  guaranty  may  doubtless  be  a  continuing  contract,  and  be 
unaffected  by  a  change  of  circumstances,  as  to  the  subject- 
matter,  and  also  as  to  the  parties  for  whose  benefit  it  shall 
enure.  It  may  provide,  for  instance,  for  the  fidelity  of  a  cashier 
in  a  bank,  as  long  as  it  shall  continue  under  its  present  charter, 
and  under  any  extension  or  renewal  thereof.     So  provision  may 


partncrsliip  with  B.,  authorizinj;  him  to 
si;.m  1111(1  indorse  notes  which  miglit  he 
considered  necessary  in  the  manaficmcnt 
of  the  concern.  M.  <lelivered  the  ])owcr 
to  I>.  ;  after  which  M.,  \>y  virliie  thereof, 
coiititiucd  to  use  tlie  name  of  S.  M.  «&  (i., 
as  drawers  and  inrhfrscrs  of  nejrotiahle 
pai)er,  wliicli  was  discounted  l)y  B.,  and 
the  j)roceeds  credited  to  the  firm,  and  ap- 
plied in  payment  of  their  former  inck-htcd- 
ness  to  B.  ]5y  virtue  of  such  jiower,  M. 
also  sii^ned  in  the  name  of  the  firm  vari- 
ous other  notes  wliich  were  indorsed  hy 
A.,  with  notice  of  the  dissohition,  and 
knowin<;  that  tliese  notes  were  intended  to 
be,  as  they  were  in  fact,  discounted  l)y  B., 
and  tlie  proceeds  applied  in  payment  of 
the  dehts  and  liahilities  of  the  firm.  In 
the  course  of  tiiesc  transactions,  M.,  hy 
virtue  of  said  ])ower,  indoiscd  two  notes, 
which  were  discounted  liy  B.,  and  the  ])ro- 
ceeds  credited  to  the  firm.  The  parties 
to  these  notes  haviiifr  failed,  B.  soujrht  a 
remedy  on  the  <rnaranty  atrainst  A.  ;  and 
it  was  /«'/</  that  the  f;iiaranty,  hy  its  terms, 
contemplated  only  such  jiaper  as  should 
he  indorsed  hy  the  (inn  of  S.  M.  &  G.,  as 
a  firm,  and  durin<r  the  continuance  of  the 
jjartnership,  hut  that,  for  the  ])urposc  of 
scttlin<^  tlie  partnership  concerns,  the  part- 
nership relation  hctwci'ii  the  partners  con- 
timied  to  suhsist  after  the  dissolution,  and 
the  notes  so  indorsed  hy  M.  were  in  lej^ul 

45* 


contemplation  indorsed  hy  the  firm  ;  eon- 
sc(]uently  they  were  embraced  within  the 
scoi)e  and  true  meaning  of  the  guaranty. 
And  in  Staats  t\  Ilowlett,  4  Denio,  ,559, 
A  gave  B'an  undertaking  in  writing  as 
follows  :  "  I  licreliy  obligate  myself  to  hold 
you  hannless  for  any  indorsement  you 
may  make  for,  or  have  ma<U^  for,  the  late 
firm  of  Peck,  Howlett  &  Foster."  The 
firm  had  previously  become  dissolved  by 
the  death  of  one  of  its  members.  A  note 
subsequently  made  by  one  of  the  surviving 
])artners,  in  the  course  of  li(piiilating  the 
business  of  the  firm,  and  signed  "  S.  li. 
Howlett,  for  the  late  firm  of  Peck,  How- 
lett &  Foster,"  was  indorsed  by  B.  J/iUi, 
that  it  was  within  the  terms  of  the  guar- 
anty. The  case  of  I'emherton  i'.  Oakcs, 
4  Huss.  154,  illustrates  the  )irincii)leof  the 
text.  See  further,  that  guaranties  are  to 
be  construed  strictly,  and  that  if  any  part- 
ners he  taken  into  or  retire  from  a  firm, 
the  guaranty  does  not  continue.  Simsoti 
V.  Cooke,  8  Moore,  588  ;  Kijiling  r.  Tur- 
ner, 5  B.  &  Aid.  2(il  ;  Wright  r.  Russell, 
.'}  Wils.  5:M  ;  Ban-lay  r.  Lucas,  .3  Doug. 
,■521;  Penovcr  r.  Wat.son,  16  .Johns.  Kid; 
Barker  r.  Parker,  1  T.  H.  -'87;  Drv  i: 
Davy,  2  P.  &  Dav.  249  ;  Place  >:  Delegal, 
4  Bi'ng.  N.  C.  426  ;  Dance  r.  (iirdler,  4 
B.  &  V.  34  ;  Mvers  r.  E.lge,  7  T.  K.  254. 
(/)  Metcalfe!  Bruin,  12  East,  405. 

[533] 


508* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


be  made  for  its  validity  to  a  partnership  after  a  change  of  mem- 
bers, perhaps  by  adequate  covenants,  even  without  the  inter- 
vention of  trustees  ;  although  it  would  certainly  be  the  better,  if 
not  the  only  safe  way,  to  constitute  trustees.  But,  from  what 
has  already  been  said,  it  will  be  obvious  that  unless  the  contract 
of  guaranty  expressly  provides  for  these  changes,  their  occur- 
rence discharges  the  guarantor  from  his  obligation,  (m) 

So  a  bond  for  the  good  conduct  of  a  clerk,  when  the  obligee 
died,  and  the  executor  employed  the  same  clerk  in  arranging 
and  finishing  the  business  of  the  obligee,  was  not  *held  sufficient 
to  maintain  an  action  by  the  executor  for  misconduct  of  the 
clerk  after  the  death  of  the  obligee,  (n) 

In  regard  to  the  subject-matter,  a  guaranty  to  cover  goods 
supplied  to  a  certain  amount,  without  restriction  of  time,  con- 
tinues until  revoked  ;  although  even  such  continuing  guaranty 
may  be  discharged  by  a  change  of  the  terms  of  credit,  (o)  If 
the  guarantor  means  to  limit  his  liability  to  a  single  transaction, 
he  should  so  express  it.  (p)      Still,  if  this  purpose  may  fairly  be 


(m)  The  case  of  Barclay  v.  Lucas,  3 
Doiit;-.  321,  1  T.  R.  291,  n.  a,  although  it 
has  hceu  donhted  on  some  points,  (see 
Weston  V.  Barton,  4  Taunt.  681,)  is  yet 
an  authority  for  this  principle,  that  if  the 
terras  of  the  contract  show  it  was  the  in- 
tention of  the  parties  that  the  liability 
should  continue,  such  will  be  the  case, 
althouji;h  the  names  of  the  firm  chancre. 
Such  was  evidently  the  court's  understand- 
ing of  the  bond  in  that  case,  for  Lord 
Mavs/ielfl  ohsevYcA  :  "  The  question  turns, 
as  Lord  Chief  Justice  De  Grey  observes, 
in  the  case  wliich  has  been  cited,  upon  the 
meaninii;  of  the  parties.  In  endeavoring 
to  discover  that  meaning,  the  subject- 
matter  of  tlie  contract  is  to  be  considered. 
It  is  notorious  that  these  banking-houses 
continue  for  ages  with  the  occasional  ad- 
dition of  new  partners.  In  such  cstab- 
lislnnents  clerks  are  necessary,  who  now 
and  then  succeed  as  partners,  an  arrange- 
ment very  proper  and  very  beneficial  to 
the  clerks.  The  house  requires  security 
for  their  iionesty.  Now  it  seems  to  me  to 
make  no  difference  whether  a  new  partner 
is  introduced  or  not,  for  there  is  no  doubt 
that  it  is  a  security  to  the  house.  I  am 
glad  tliat  there  is  a  distinction  between 
this  case  and  that  decided  in  the  Common 
Fleas ;  for  I  think  that  the  plaintiffs  are 

[534] 


entitled  to  recover  to  the  extent  of  the 
whole  sum  embezzled,  or  at  all  events  to 
the  extent  of  their  own  share."  This 
principle  was  the  foundation  of  the  de- 
cision in  Pease  v.  Hirst,  10  B.  &  C.  122. 
(»)  Barker  v.  Parker,  1  T.  K.  287. 
(o)  In  Bastow  v.  Bennett,  .3  Camp.  220, 
A  gave  to  B  a  written  guaranty  to  the  ex- 
tent of  £300  for  any  goods  he  might  sup- 
ply to  C,  provided  C  neglected  to  pay  in 
due  time.  B  supplied  goods  to  C  accord- 
ingly at  two  months'  credit,  and  C  paid  in 
due  time  to  an  amount  exceeding  =C300. 
The  account  having  run  for  some  time  on 
these  terms,  and  there  being  a  balance  due 
to  B,  a  new  account  was  opened  on  new 
terms  of  credit.  Held,  that  the  guaranty 
extended  to  all  goods  furnished  wiiile  the 
term  of  credit  remained  unchanged,  but 
not  to  those  furnished  after  the  term  of 
credit  was  changed,  and  a  new  account 
opened. 

(/-)  Merle  v.  Wells,  2  Camp.  413.  In 
this  case  the  guaranty  was  in  these  words  : 
"  Gentlemen,  I  have  been  applied  to  by 
my  brother,  William  Wclis,  jeweller,  to  be 
bound  to  you  for  any  delits  he  may  con- 
tract, not  to  exceed  one  hundred  i)Ound.s, 
(with  you)  for  goods  necessary  in  his  busi- 
ness as  a  jeweller.  I  have  wrote  to  say 
by   this    declaration    I    consider    myself 


CH.   VIII.] 


GUARANTY. 


-508 


gathered    from    the    whole    contract,    courts    will    so    construe 
it.  (7) 


bound  to  Tou  for  any  debt  he  may  con- 
tract for  liis  liusinoss  as  a  jtweller,  not  cx- 
ccediuy  one  hundred  jioiinds,  after  t!iis 
date.  ( Signed,)  John  Wells."  And  Lord 
Ellenhoroiiijh  said  :  "  I  tliink  the  defendant 
was  answerable  for  any  del»t  not  exceed- 
ing one  hundred  pounds  wliich  William 
Wells  niiiiht  from  time  to  time  contract 
with  the  plaintiffs  in  the  way  of  his  busi- 
ness. The  guaranty  is  not  confined  to 
one  instance,  liut  applies  to  deljts  succes- 
sively renewed.  If  a  party  means  to  be 
surety  only  for  a  sinj:le  dealing,  he  sliould 
take  care  to  say  so.  By  such  an  instru- 
ment as  this,  a  continuing  suretyship  is 
created  to  the  specified  amount.  There 
must  be,  therefore,  a  verdict  for  the  jjlain- 
tifis  for  .£100." 

(7)  See  Cremcr  v.  Iligginson,  1  jMason, 
323,  which  is  a  leading  case  on  this  sub- 
ject. In  this  case  the  letter  of  guaranty 
contained  this  clause  :  "  The  objeitof  the 
present  letter  is  to  request  you,  if  conven- 
ient, to  furnish  them,"  (ilessrs.  Stephen 
and  Henry  iligginson,)  "  with  any  sum 
they  may  want,  as  far  as  fifty  thousand 
dollars;  say  fifty  thousand  dollars.  They 
will  reimburse  you  the  amount,  togciher 
■with  interest,  as  soon  as  arrangements  can 
be  made  to  do  it ;  and  as  our  embargo 
cannot  be  continued  much  longer,  we  ap- 
prehend there  will  be  no  difliculty  in  this. 
We  shall  hold  ourselves  answeralile  to 
you  for  the  amount."  It  was  h<ld,  that 
this  was  not  an  absolute  original  under- 
taking, but  a  guaranty  ;  that  it  covered 
advances  only  to  Stei)hen  and  Henry  Hig- 
ginson,  (who  were  then  partners,)  on  part- 
nerehip  account,  and  coidd  not  be  a])plied 
to  cover  advances  to  either  of  the  f)artners 
separately,  on  his  separate  account  ;  that 
the  authority  of  the  guaranty  was  revoked 
by  a  dissolution  of  the  partnership,  and 
no  subsc(|ucnt  advances  made  by  the  party, 
after  a  fidl  notice  of  such  dissolution,  were 
within  the  reach  of  the  guaranty  ;  that  the 
letter  did  not  ini|)ort  to  be  a  continuing 
guaranty  for  money  advanced,  tuliis  </iio- 
lits,  from  time  to  time,  to  the  amount  of 
$.50,000,  but  for  a  single  advance  of 
money  to  that  amount  ;  and  that,  when 
once  advances  were  made  to  S.")0,000,  no 
subse(]uent  advances  were  within  the  guar- 
anty ;  although,  at  the  time  of  such  fur- 
ther ndvaiiccs,  the  sum  actually  advanci'd 
ha'd  been  reduced  below  S.')0,00()  iiy  reim- 
bursements of  the  debtors.     In  (Jiant  i'. 


Ridsdale,  2  liar.  &.  .Johns.  186,  a  guaranty 
in  the  following  terms  :  "1  will  guaranty 
their  engagements,  should   you  think   it 
nccessarj',  for  any  transactions  they  m.iy 
have  in  your  house,"  was  lu/d  an  absolute 
and  continuing  guaranty,  until   counter- 
manded.—  So   where   the    defendant  ad- 
dressed a   letter  to   the  jdaintifis,  stating 
that  his  brother  wished  to  go  into  business, 
and  promising  to  be  accountable  for  such 
goods   furnished  by   the  jilaintitfs  as  his 
brother  should  call"  for,  from  8300  to  S.500 
worth  ;  in  consetpicncc  of  which  tiie  plain- 
tiffs furnished  him  with  divers  parcels  of 
goods  ;  it  was  /(t-A/that  this  was  a  continu- 
ing guaranty  to  the  amount  specified,  and 
was  not  limited  to  the  bill   of  parcels  first 
delivered.     Kapclye   v.  Bailey,   5    Conn. 
149.     See  also,  Clark  r.  Burdett,  2  Hall, 
197.  —  A  writing  in  these  words  :  "  I  agree 
to  be  res))onsii)le  for  the   price   of  goods 
])urchased  of  you,  either  by  note  or  account, 
at   any  time   hereafter,  to  the   amount  of 
SlOO,"  is  a  continuing  guaranty  to  that 
extent,  for  goods  to  be  at  any  time  sold 
before    the    credit    is   recalled.     Bent    v. 
Hartshorn,  1  Met.  24.  —  Many  of  the  cases 
seem   to  hold  with    Lord  Elleiihorouqh,  in 
Merle   v.  Wells,  2  Camp.  413,  that  the 
guaranty  will  be  understood  to  be  continu- 
ing,   unless   expressly   limited.     But  the 
contrary  opinion  was  expressed  in  White 
V.  Reed,  15  Conn.  457.     In  that  case  the 
defendant  gave  the  ]>laintirt"  a  writing  in 
these  words  :  "  For  any  sum  that  my  son 
G.  may  become  indebted  to  you,  not  ex- 
ceeding $200,  I  will  hold  myself  account- 
able."    Ill  Id,  that  the  terms  of  this  instru- 
ment were  satisfied  when  any  indebtedness 
within    the  amount   limited  was  incurred 
by  (J.,  and  c(inse(piently  that  it  was  not  a 
continuing    guaranty.     So    in    Boyce    v. 
Ewart,  1   Rice,  126,  the  guaranty  was  in 
these  words  :  "  The   bearer   is    about  to 
commence  business,  to  assist  him  in  which 
he  will  need  your  aid,  which,  if  you  render, 
we  will,  in  case  of  failure,  inilemnify  you 
to  the  amount  of  S4,000."     ILUI,  that  it 
was   not  a  continuing  guaraiuy,  but   ap- 
plicable  to   the    bearer's   commencing  in 
business,  and  that,  as  soon  ;u5  the  bearer 
had  refunded  $4,000,  the  guaranty  ceased. 
In    Fellows   r.   Prentis*,  3    Deiiio,  512,  a 
guaranty  in  these  words:  "  I  hereby  agree 
to  guaranty  to  you   the    payment  of  such 
an    amount  of  goods,  at    a  credit    of  one 
year,   interest    after  six  months,   not  ex. 

[535] 


509-*510 


THE    LAW    OF    CONTRACTS. 


[cook  III. 


SECTION    VI. 

now    A    GUARANTOR   IS    AFFECTED    BY    INDULGENCE    TO    A    DEBTOR. 

A  gDarantor  is  entitled  to  a  just  protection.  But  tliis  prin- 
ciple is  not  carried  so  far  as  to  permit  him  to  compel  the  credi- 
tor unreasonably  to  proceed  against  the  principal  debtor,  (r) 
From  some  cases  it  may  be  doubted  whether  he  has  any  power 
in  this  way.  In  one  case,  (.s)  it  was  held  that  a  surety,  who 
was  injured  by  a  delay  in  suing  the  principal  debtor,  was  not 
discharged,  on  the  ground  that  he  might  have  insured  a  prompt 
demand  against  the  debtor,  by  making  himself  an  indorser  in- 
stead of  a  surety.  But  this  would  have  secured  only  a  demand, 
and  not  a  suit;  and  it  seems  hard  and  severe  to  say  that  be- 
cause one  does  not  secure  to  *himseif  the  precise  and  immediate 
demand  and  notice  necessary  to  hold  indorsers,  he  shall  not  be 
entitled  to  any  care  or  diligence  on  the  part  of  the  creditor. 

If  the  surety  requests  the  creditor  to  collect  the  debt,  and 
there  is  refusal  and  delay,  and  subsequent  insolvency,  it  would 


cecdinn;  $500,  as  you  may  credit  to  A.," 
was  hi  Id  not  to  be  a  coiitiiiuiiift-  guaranty, 
but  it  was  lield  to  be  exhausted  by  a  single 
purchase  of  goods  to  the  amount  of  •'Ji.'JOO. 
See  also,  Whitney  /'.  Groot,  24  Wend. 
82 ;  Lawrence  v.  McCalmont,  2  How. 
426  ;  Chapman  r.  Sutton,  2  C.  B.  634  ; 
Tanner  v.  Moore,  11  Jur.  11  ;  Allnut  v. 
Ashenden,  5  M.  &  Gr.  392  ;  Hitchcoclv  v. 
Humphrey,  id.  559  ;  Martin  v.  Wright,  9 
Jur.  178;"  Johnston  v.  Nicholls,  1  C.  B. 
251  ;  Farmers  &  Mechanics'  Bank  i\  Ker- 
chcval,  2  Mich.  504  ;  Agawam  Banlc  v. 
Strever,  16  Barb.  82. 

(r)  It  seems  to  i)e  well  settled  that  mere 
delay  by  the  creditor  to  jjrocced  against 
the  princi])al,  althougli  re(|uested  to  do  so 
by  the  surety,  will  not  in  and  of  itself 
discharge  the  surety.  IIutTman  v.  Hul- 
bert,  13  Wend.  377;  Davis  v.  Iliggins,  3 
New  Hamp.  231  ;  Bellows  i'.  Lovell,  5 
Pick.  307  ;  Erie  Bank  v.  Gibson,  1  Watts, 
143;  Cope  t\  Smith,  8  S.  &  R.  110; 
Johnson  r.  Planters  Bank,  4  S.  &  M.  lf.5  ; 
Beebc  v.  Dudley,  6  Fost.  249  ;  Bickford  v. 

[536] 


Gibbs,  8  Cush.  184.  But  if  this  delay  of 
the  creditor  operates  to  the  injury  of  the 
surety,  as  if  tiie  principal  debtor  was  at 
the  time  of  the  request  solvent,  but  after- 
wards became  insolvent,  and  tlie  surety 
will  not  be  able  to  collect  the  amount,  he 
is  pro  tanio  discharged.  Row  v.  Pulver,  1 
Cow.  246  ;  State  v.  Reynolds,  3  Miss.  95  ; 
Hcrrick  v.  Borst,  4  Hill,  650.  And  see 
note  (?/')  post. 

(s)  Townsend  v.  Riddle,  2  New  Hnmp. 
448.  And  Woodbury,  J.,  said  :  "  Here 
the  character  of  the  defendant  as  a  surety 
did  not  appear  on  the  face  of  the  contract, 
nor  was  it  i)roved  that  the  plaintiff  knew 
him  to  be  only  a  surety.  Here  he  was 
not  liable  as  a  mere  indorser  on  the  same 
instrument,  or  as  a  guarantor  on  a  sepa- 
rate one.  No  time  for  an  adjustment 
with  the  principal  was  fixed  by  law  ;  no 
delay  was  given  to  him  after  a  request  by 
the  surety  for  a  prosecution ;  no  new 
engagement  for  forbearance  appears  to 
have  been  entered  into  between  the  creditor 
and  debtor." 


CH.  viri.] 


GUARANTY. 


•511 


seem  difficult  to  resist  the  surety's  claim  to  be  discharged,  (t) 
In  1816  it  was  said  by  the  Supreme  Court  of  New  York,  in  a 
case  where  such  facts  were  pleaded  and  demurred  to,  that  the 
plea  was  good,  and  the  defence  sufficient,  (ii)  Chancellor  Kent 
has  questioned  the  law  of  this  *case,  and  it  is  said  that  two  of 
the  judges  of  the  court  afterwards  retracted  their  opinion.  But 
in  1833,  the  Supreme  Court  of  the  same  State  seemed  to  hold 


(t)  In  the  Trent  Navigation  Co.  i\ 
Harley,  10  East,  35,  Lord  E/lenboronr/li 
said  :  "  The  only  question  is,  whether  the 
laelies  of  the  ohlij^ees,  in  not  callinj;  u]ion 
the  principal  so  soon  as  they  niiyht  have 
done,  if  the  accounts  had  been  ])ro])erly 
examined  from  time  to  time,  he  an  estop- 
pel at  law  [in  an  action]  against  the  sure- 
ties ■?  I  know  of  no  sucii  estoj)])el  at  law, 
whatever  remedy  there  may  he  in  equity." 
And  in  Dawson  r.  Lawes,  23  E.  L.  &  E. 
374,  tlie  Vice-Chancellor  said  that  in 
order  to  discharj^e  sureties  for  the  faithful 
performance  of  duties  hy  their  pnncii)al, 
from  their  oldiyation,  there  must  he  such 
an  act  of  connivance  as  enabled  the  jjany 
to  get  the  fund  in  his  hands,  or  sudi  an 
act  of  gross  negligence  as  to  amount  to  a 
wilful  shutting  of  the  person's  eyes  to  the 
fraud  which  the  party  was  about  to  coni- 
niit,  or  something  ai)j)ro.\imatiiig  to  it. 

(h)  Pain  V.  Packard,  13  Johns.  174." 
And  see  People  i\  Janscn,  7  id.  33G.  In 
Ilerrick  c.  liorst,  4  Hill,  650,  it  was'fiM 
that  although  the  creditor  neglect  to  jiros- 
ecute  the  jiriticipal,  after  a  request  by  The 
surety,  this  will  not  discharge  the  surety, 
if  tlie  princii)al  was  then  insolvcTit.  And 
the  surety,  in  order  to  estal)lish  a  defence 
of  tliis  kind,  must  sliow  rkarly  that  at  the 
time  the  request  was  made  the  debt  could 
have  been  collected  of  the  ])rincipal. 
Coiren,  J.,  then  observed :  "  Tiie  view 
taken  of  the  question  in  Iluli'man  v.  Ilul- 
bert,  13  Wend.  377,  tlie  only  case  in  this 
court  where  tlie  kind  or  degree  of  insol- 
vency on  which  the  surety  is  to.be  dis- 
charged has  been  noticed,  is  not  inconsist- 
ent with  the  direction  given  at  tlie  circuit. 
Mr.  Justice  Nelson  there  said,  tlie  rule  is 
founded  on  the  assumption  that  the  deiit 
is  clearly  colleetable  by  suit;  and  upon 
this  ground  only  can  the  rule  be  defended. 
Again,  he  say;,  there  must  be  something 
more  than  an  ability  to  pay  at  the  ojition 
of  the  delxor.  Among  other  reasons  be 
mentions  the  surety  having  a  remedy  of 
his  own  by  payment  aiul  suit,  a  reason 
which,  as  I  mentioned,  would   in   other 


cases,  deprive  the  party  com])laining  of 
all  claim  ;  for  in  no  other  case  that  I  am 
aware  of  can  he  demand  compensation  or 
raise  a  defence  grounded  on  liis  own  neg- 
lect. What  principle  suc^ii  a  defence 
should  ever  have  foimd  to  stand  upon  in 
any  court  it  is  difficult  to  see.  It  intro- 
duces a  new  term  into  the 'creditor's  con- 
tract. It  catne  into  this  court  without 
precedent,  (Pain  r.  Packard,  13  Johns. 
174,)  was  afterwards  repudiated  even  by 
the  Court  of  Chancery,  (King  v.  Baldwin, 
2  Johns.  CIi.  Rep.  554,)  as  it  always  has 
been  both  at  law  and  equity  in  England  ; 
but  was  restored  on  a  tie  in  the  Court  of 
Errors,  turned  by  the  easting  vote  of  a 
layman.  King  v.  Baldwin,  17  Johns. 
384.  Piatt,  J.,  and  Yates,  J.,  took  that  oc- 
casion to  acknowledge  that  they  had  erred 
in  Pain  v.  Packard,  as  Senator  Van  Vech- 
ten  showed  most  conclusively  that  the 
whole  court  had  dono.  The  decision  was 
oltviously  erroneous  in  another  respect,  as 
was  also  shown  by  that  learned  senator. 
It  overruled  a  previous  decision  of  the 
same  court  in  liC  Gucn  v.  Gouverneur,  1 
Johns.  Cas.  492,  on  the  question  of  res 
jitdiralu  ;  necessarily  so,  uidess  it  be  con- 
ceded that  the  defence  belongs  exclusively 
to  equity.  I  do  not  deny  that  the  error 
has  become  inveterate,  though  it  ha-s 
never  been  treated  with  much  favor.  A 
(III  turn  was  referred  to  on  the  argument,  in 
the  Manchester  Iron  Man.  Co.  ;■.  Sweeting, 
10  Wend.  1G2,  that  the  refusal  to  sue  is 
tantamount  to  an  agreement  not  to  prose- 
cute the  surety.  The  remark  meant, 
however,  no  more  than  that  such  a  neglect 
as  amounts  to  a  defence  is  like  the  agree- 
ment not  to  sue  in  n'S])ect  to  being  reecir- 
abic  under  the  general  issue.  The  judge 
was  speaking  to  the  question  whetlier  the 
defence  shoidd  not  have  been  specially 
])lcadcd  as  it  was  in  Pain  v.  Packard.  (,)a 
the  other  liand,  it  has  often  been  said  that 
the  deRn<-e  should  iu>t  l>e  encouraged,  but 
rather  discountenanced  ;  and  several  decis- 
ions will  lie  found  to  have  proceeded  ou 
this  ground." 

[537] 


*512 


THE   LAAV    OF   COXTRACTS. 


[eOOK    III. 


the  same  views.  In  1811  this  court  decided  that  a  mere  delay 
in  calling  on  the  principal  will  not  discharge  the  surety,  (v)  Of 
this  there  seems  no  question  ;  and  the  objection  to  discharging 
him  where  he  requests  a  collection  of  the  debt  and  is  injured 
by  the  refusal,  rests  upon  the  right  and  power  of  the  surety  to 
pay  the  debt  himself  whenever  he  pleases,  and  then  take  his 
own  measures  against  the  debtor.  It  would  be,  however,  un- 
just to  hold  him  liable  on  this  ground,  where  he  has  been  in- 
jured by  the  certain  fault  of  the  party  to  whom  he  makes  the 
guaranty,  (iv)  And  from  a  consideration  of  the  cases,  and  the 
reasons  on  which  they  rest,  we  think  this  rule  may  be  drawn  ; 
—  that  a  surety  is  discharged  where  the  creditor,  *after  notice 
and  request,  has  been  guilty  of  a  delay  which  amounts  to  gross 
negligence,  and  by  this  negligence  the  surety  has  lost  his  secu- 
rity or  indemnity.  If,  however,  in  that  case  the  creditor  should 
show  full  knowledge  and  an  equal  negligence  on  the  part  of 
the  guarantor,  it  would  be  difficult  to  point  out  any  acknowl- 
edged principles  which  would  lead  to  his  discharge,  (x) 


(r)  People  V.  Janscn,  7  Johns.  .336. 
The  authorities  all  agree  upon  this  point. 
Hunt  V.  United  States,  1  Gallis.  32  ;  Nay- 
lor  V.  Mooily,  3  Blackf.  93  ;  Hunt  v. 
Bridgham,  2  Pick.  581  ;  Winter  r.  Branch 
Bank,  23  Ala.  762  ;  Nichols  v.  McDowell, 
14  B.  IM6nroe,  7.  And  even  an  agree- 
ment by  the  creditor  to  enlarge  the  time, 
unless  it  is  made  upon  such  consideration, 
or  in  such  form  as  to  be  binding  upon 
him,  and  to  estop  him  from  suing  the 
principal,  does  not  discliargc  the  surety. 
Leavitt  ;;.  Savage,  16  Maine,  72;  Bailey 
V.  Adams,  10  New  Hamp.  162  ;  Joslyn  v. 
Smith,  13  Verm.  3.53;  Harter  v.  Moore, 
5  Blackf.  367  ;  Farmers  Bank  v.  Ray- 
nolds,  13  Ohio,  84.  And  see  note  (y) 
post. 

(iv)  The  better  authorities  agree  that  if 
the  surety  can  positively  and  clearly  show 
an  injury  to  himself  by  the  failure  of  the 
creditor  to  prosecute  after  rcijuest,  he  is 
exonerated,  pro  tanto.  Row  v.  Pulver,  1 
Cow.  246 ;  State  v.  Reynolds,  3  Miss.  9.5  ; 
Manchester  Iron  Co.  v.  Sweeting,  10 
Wend.  162  ;  Goodman  r.  GrifHn,  3  Stew. 
169  ;  Hogaboom  v.  Herrick,  4  Verm.  131  ; 
Johnston  v.  Thompson,  4  Watts,  446  ; 
Wetzel  V.  Sjiousler's  Ex'rs,  18  Penn.  460  ; 
Lang   V.  Brevard,  3    Strob.   Eq.   59.     In 

[538] 


Locke  V.  United  States,  3  Mason,  446,  it 
was  luld  that  the  neglect  of  the  postmaster- 
general  to  sue  for  balances  due  by  post- 
masters, within  the  time  prescribed  by 
law,  although  he  thereby  is  rendered  per- 
sonally chargeable  with  such  balances,  is 
not  a  discharge  of  the  postmasters  or 
their  sureties  upon  their  official  bonds. 
And  in  Bellows  v.  Lovell,  5  Pick.  307,  the 
Supreme  Court  of  Massachusetts  hid  that 
a  refusal  of  the  creditor  to  sue  the  prin- 
cipal upon  a  mere  rc(|acst  of  the  surety, 
unaccompanied  with  an  offer  of  indem- 
nity against  the  costs  and  charges  of  the 
suit,  is  not  a  defence  at  law  to  a  suit 
against  the  surety,  notwithstanding  the 
principal  may  afterwards  have  become 
insolvent.  So  in  D.ivis  v.  Huggins,  3 
New  Hamp.  231,  where  one  who  had 
signed  a  i)romissory  note  as  surety  re- 
quested the  payee  to  collect  the  money  of 
the  principal,  but  the  payee  neglected  so 
to  do  until  the  principal  became  insolvent ; 
it  was  held  that  the  surety  was  not  dis- 
charged. 

(.r)  And  it  has  been  expressly  held,  that 
if  the  extension  of  payment  is  given  to  a 
princi])al,  at  the  instance  of  the  surety  or 
with  his  consent,  the  surety  is  not  dis- 
charged.    Suydam  i'.  Vance,  2  McLean, 


CH.  VIII.] 


GUARANTY. 


*0l3 


A  guarantor  or  surety  has  a  right  to  expect  that  the  creditor 
will  not  wantonly  lose  or  destroy  his  claim  against  the  princijDal 
debtor,  with  the  intention  of  falling  back  upon  the  liability  of 
the  guarantor,  (xx)  For  the  guarantor  promises  only  to  pay 
the  debt  of  another,  in  case  that  other  does  not  pay  it;  and  this 
contract  is  held  to  imply  some  endeavor  and  some  diligence  on 
the  part  of  the  creditor  to  secure  the  debt  from  the  principal 
debtor.  To  this  the  guarantor  is  entitled  ;  but  this  does  not 
give  him  the  right  to  debar  the  principal  debtor  from  all  favor 
or  indulgence.  It  was  once  uncertain  whether  a  forbearance  of 
the  debt  did  not  discharge  the  guarantor ;  but  it  is  now  well 
settled  that  a  mere  forbearance,  leaving  to  the  creditor  the 
power  of  putting  his  claim  in  suit  at  any  time,  does  not  have 
this  effect.  (//)     Thus,  the  neglect  of  *postmasters  to    sue  for 


99;  Solomon  v.  Gregory,  4  Harr.  112; 
New  Iliinipsliire  Savings  Bank  v.  Colcord, 
1 5  N.  il.  1 1 9.  See  also,  Day  v.  Ridgwav, 
17  Penn.  303;  Weilcr  v.  Hocli,  25  rcnii. 
St.  Reps.  525.  Or  if  the  surety,  being  in- 
formed of  sui-li  an  arrangement,  assents  to 
it,  it  is  no  defence  to  him.  Tyson  v.  Cox, 
T.  &  K.  395 ;  Smith  v.  Winter,  4  M.  & 
■\V.  519;  La  Fargc  v.  Herter,  11  liarb. 
159;  Woodcock  i\  Oxford  &  Worcester 
Kaihvay  Co.  21  E.  L.  &  E.  285.  Or  if 
the  surety  has  been  amply  secured  and 
indemniried  by  tlic  principal,  eyen  if  the 
extension  was  made  without  his  consent. 
Smith  V.  Estate  of  Steele,  25  Verm.  427. 
Otherwise  if  he  assents  in  ignorance  of 
the  real  facts.  West  v.  Ashdown,  1 
Bing.  164  ;  Robinson  v.  (Jffutt,  7  Monroe, 

541.     See  also,  ante,  p.  505,  and  n.  (/.) 
{xx)  N.  II.  Savings  Bank  v.  Colcord, 

15  N.  H.  119;  liolt  V.  Bodey,  18  Penn. 

207  ;  I'errine  v.  Fireman's  Ins.   Co.    22 

Ala.  575. 

(y)  It   is  well  settled  that  mere  delay 

witliout   fraud,    or   agreement    with    the 

principal,  dues  not  discharge  the  surety. 

Hunt   V.    United   States,  1    Gallison,  32  ; 

Naylor  v.  Moody,  3   Blackf.  93  ;  Hunt  v. 

Bridgham,    2    Tick.    581  ;    Townscnd    v. 

Riddle,  2  New  Hamp.   448  ;    Leavitt  v. 

Savage,  IG  Maine,  72;  Freeman's  Bank 

r.     Rollins,     13     id.    202  ;    Joimston    v. 

Searcy,   4    Yerg.    182;  Dawson    v.    Real 

Estate  Bank,  5   Ark.   283 ;  Montgomery 

V.  Dillingham,  3  S.  &  M.  647  ;  Peo|)le  v. 

White,  1 1    111.  342  ;   Dorman  r.  Bi-elow, 

I  Flor.  281.     To  have  such  etfecl,  there 


must  be  an  actual  agreement  bct\yeen  the 
creditor  and  the  principal  to  extend  the 
time  of  payment.  Hutchinson  v.  Moody, 
18  Maine,"  393  ;  Fuller  r.  Milford,  2  Mc- 
Lean, 74;  Greely  v.  Dow,  2  Met.  176; 
Wagman  v.  Hoag,  14  Barb.  232.  And 
the  agreement  must  be  upon  sufficient  con- 
sideration, and  must  amount  in  law  to  an 
estoppel  upon  the  creditor,  sufficient  to 
prevent  him  from  beginning  a  suit  be- 
fore the  expiration  of  the  extended  time  ; 
and  when  such  an  agreement  is  made  the 
surety  is  discharged.  Leavitt  v.  Savage, 
10  Maine,  72;  Lime  Rock  Bank  r.  Mal- 
lett,  34  id.  547 ;  Bailey  v.  Adams,  10 
New  Ilamp.  162  ;  Hoyt  v.  French,  4  Fos- 
ter, 198  ;  Joslyn  v.  Smith,  13  Verm.  353; 
AVheeler  v.  Washburn,  24  id.  293  ;  Chace 
V.  Brooks,  5  Cush.  43 ;  Ilotlinan  v. 
Coomt>s,  9  Gill,  284 ;  Payne  v.  Commer- 
cial Bank,  6  S.  &  M."24;  Newell  v. 
Hamer,  4  How.  (Miss.)  684  ;  CJoman  v. 
Suite,  4  Blackf.  241  ;  Farmers  Bank  v. 
Raynolds,  13  Ohio,  84;  Haynes  v.  Co- 
yington,  9  S.  «Si  M.  470  ;  Anderson  v. 
Mannon,  7  B.  Monr.  217;  Sawyer  u. 
Patterson,  11  Ala.  523 ;  Gray's  PLx'rs  t\ 
Brown,  22  id.  262  ;  Moss  r.  liall,  5  E.xch. 
46 ;  Phillips  r.  Rounds,  33  Maine,  357  ; 
Thomas  r.  Dow,  itl.  390 ;  Turrill  v. 
Boynton,  23  Verm.  192  ;  Bangs  i-.  Strong, 
4Coms.  315;  Miller  v.  Stem,  12  Penn. 
383;  Mitchell  v.  Gotten,  3  Florida,  134  ; 
Burke  v.  Cruger,  8  Tex.  GO.  Therefore 
a  surety  in  a  sp'rinliy  is  not  discharged  by 
a  parol  agreement  between  the  creditor 
and    the    principal,   on  the  day  the  debt 

[539]' 


514* 


THE    LAW    OF    CONTRACTS. 


[took  III. 


balances  due  them  does  not  discharge  their  sureties,  (z)  Where 
a  creditor  received  the  interest  in  advance  for  sixty  days,  this 
did  not  discharge  the  surety;  for  though  it  undoubtedly  signi- 
fied that  the  debt  was  not  to  be  demanded  within  that  period, 
yet  it  might  have  been  at  any  moment,  [a)  So  where  a  bank 
renewed  a  note  on  receiving  twenty-five  per  cent.,  and  the  in- 
terest on  the  remainder  for  a  certain  period,  the  note  lying  in 
the  bank  overdue,  the  surety  was  not  discharged,  (b) 

*It  seems  to  be  settled  that  an  express  covenant  not  to  sue  the 
principal  debtor  within  a  limited  time  does  not  discharge  the 
surety;  because  a  suit  may  nevertheless  be  commenced  at  any 
time,  and  such  a  covenant  is  no  bar,  but  only  gives  to  the  cove- 


became  due,  to  allow  the  principal  one 
year  more  for  payment.  Tate  v.  AVy- 
mond,  7  Blackf.  i'45.  But  the  agreement 
for  extension  must  not  only  Ite  valid  and 
binding  in  law,  but  the  time  of  the  exten- 
sion must  be  definitely  and  precisely 
fixed.  Miller  v.  Stem,  2  Barr,  286  ;  Par- 
nell  ?\  Price,  3  Rich.  121;  Waddlington 
V.  Gary,  7  S.  &  M.  522  ;  Gardner  ;-'.  Wat- 
son, 13  111.  347;  Waters  r.  Simpson,  2 
Gilman,  570;  People  v.  Mcllatton,  id. 
638  ;  McGee  v.  Metcalf,  12-  S.  &  M.  535. 
And  the  sureties  are  not  discharged  by 
the  giving  of  time  to  the  principal,  if 
a  riglit  lias  been  reserved,  in  the  contract 
to  proceed  against  the  sureties  at  any 
time.  Wyke  v.  Rogers,  12  E.  L.  &  E. 
163  ;  Viele  v.  Hoag,  24  Verm.  46  ;  Hub- 
bell  v.  Carpenter,  1  Seld.  171;  Wagman 
V.  Hoag,  14  Barb.  232. 

[z)  See  Locke  ?>.  United  States,  3 
Mason,  446,  cited  ante,  in  note  {w)  p. 
511. 

(a)  Oxford  Bank  v.  Lewis,  8  Pick. 
45S. 

{b)  Blackstone  Bank  ?'.  Hill,  10  Pick. 
129.  And  the  ground  of  this  decision  is 
thus  stated  by  the  court :  "  The  first  ob- 
jection that  an  extension  of  credit  was 
given  to  the  principal  without  the  consent 
of  the  surety,  if  nuide  out  would  be  a  good 
defence,  but  it  is  not  su])ported  in  ))oint 
of  fact.  The  principle  is  stated  in  Ox- 
ford Bank  v.  Lewis,  8  Pick.  458,  that  to 
discharge  the  surety,  the  contract  for  new 
credit  must  be  such  as  will  prevent  the 
holder  of  the  note  from  bringing  an  action 
against  the  ]irinci])al.  The  i>]ainti(fs  were 
not  prechided,  during  such  snpi)osed  re- 
newed term  of  credit,  from  suing  tlie  prin- 
cipal, in  tlie  case  under  consideration.   As 

[540] 


to   the  understanding   that  the   plaintiifs 
were  not  to  collect  the  note  unless  they 
should  want  money,  that  was  a  matter  of 
courtesy  ratlier  tlum  of  legal  obligation. 
The  strongest  circumstance  showing  a  re- 
newed credit  is  the  receiving  of  interest  in 
advance  ;  but  in  the  case  of  Oxford  Bank 
V.  Lewis,  where  that  point   was  directly 
adjudged,   it  was  held   that  that  circum- 
stance did  not  tie  the  hands  of  the  plain- 
tiffs, if  at  any  time  they  thought  it  neces- 
sary for  their  security  to  bring  an  action." 
See   also,    Strafford   Bank  v.   Crosby,   8 
Greenl.  191.    But  these  cases  seem  to  rest 
on  the  ground  of  usage  of  the  bank,  and 
that  the  same  was  known  to  the  sureties, 
and  acquiesced  in  by  them.     And  it  was 
accordingly  held  in  Crosby  v.  Wyatt,  10 
New  Hamp.  318,  that  if  a  note  is  made 
payable  to  a  bank,  where  a  regular  usage 
exists  to  receive  payment  by  instalments, 
at  regular  intervals,  with  the  interest  on 
the  bal.ance  in  advance,  there  is  presump- 
tive evidence  of  the   assent  of  a  surety 
that   payment  may  be   delayed,   and  re- 
ceived by  instalments  according  to  such 
usage,  until  the  contrary  is  shown.     But 
this  principle  cannot  be  held  to  apply  to 
any  delay  beyond  such  regular  usage,  and 
no  assent  to  any  other  course  can  be  pre- 
sumed.    A  similar  doctrine  was  held  in 
Savings  Bank  r.  Ela,  11  New  Hamp.  336. 
So  in   Gilford    r.  Allen,  3    Met.  255,   it 
was   determined  that   if  the  holder  of  a 
note  payable  on  demand  makes  a  valid 
agreement  with  the  principal    promisor, 
witliout  the  consent  of  tlie  surety,  to  re- 
ceive payment  by  yearly  instalments,  he 
thereby  discharges  the  surety.     And  see 
further,  l))-aper  v.  Romeyn,  18  Barb.  106  ; 
Lime  Rock  Bank  v.  Mallctt,  34  Me.  547. 


en.  VIII.]  GUARANTY.  -514 

nantee  an  action  for  damages,  (c)  But  where  there  is  an  entry 
on  the  docket  of  the  court,  made  by  counsel,  to  the  effect  that 
no  action  shall  be  brought  on  the  original  debt,  this  discharges 
the  surety,  because  it  will  be  enforced  by  the  court,  and  no  such 
action  will  be  permitted.  It  is  therefore  equivalent  to  a  dis- 
charge of  the  debt  by  the  creditor,  which  of  course  operates  the 
discharge  of  the  guarantor,  (d)  Such  an  arrangement  made 
with  the  principal  debtor  without  the  consent  of  the  surety, 
although  innocently  done,  may  work  an  injury  to  the  surety. 


SECTION    VII. 

OF   NOTICE   TO   THE   GUARANTOR. 

A  guaranty  may  be  extinguished  or  discharged  by  the  fact 
that  the  guarantee  gives  no  notice  to  the  guarantor  of  the  fail- 
ure of  the  principal  debtor,  and  of  the  intention  of  the  guarantee 
to  enforce  the  guaranty.  For  a  guarantor  is  entitled  to  reason- 
able notice  of  this.  What  the  notice  should  be,  or  when  it 
should  be  given,  is  not  settled  in  the  case  of  a  mere  guarantor 
as  it  is  in  the  case  of  an  indorser,  but  the  reason  and  justice  are 
the  same  in  both  cases,  and  equally  require  notice,  in  order  that 
the  guarantor  may  at  once  take  what  measures  are  within  his 
power  to  secure  or  indemnify  himself  The  question  of  reason- 
able time  is  a  question  of  law,  and  the  cases  are  very  few  which 
would  help  us  in  determining  what  time  would  be  reasonable. 
But,  from  the  authorities  and  the  reason  of  the  thing,  we  deduce 
these  rules;  the  guarantor  is  entitled  to  this  notice,  but  cannot 
defend  himself  by  the  want  of  it,  unless  the  notice  and  demand 
have  been  so  long  delayed  as  to  raise  a  presumption  of  waiver 
or  of  payment,  or  unless  he  can  show  that  he  has  lost  by  the 


(r)  Perkins   v.    Gilman,  8   Pick.    229.  held  that  the  bail  was   not  thereby  dis- 

And  in  Fullam  v.  Valentine,  11  Pick.  156,  charged,  for  the  covenant  was  only  collat- 

whcre    the    defendant    was    arrested    on  eral  to  the  action,  and  did  not  deprive  tlie 

mesne    process    and    pave    bail,    and    the  plaintitV  of  the  |)ower  to  arrest  the  defend- 

plaiiitiff,  before  jndgnient  was   rendered,  ant,  nor  the  bail  of  the  power  to  surrender 

covenanted  not  to  arrest  him  on  any  writ  him,  within  the  fonr  niontlis. 

or  execution  within  fonr  months,  it  was  (J)  Pullam  v.  Valentine,  supra. 

VOL.  I.                                  46  [5-il] 


515*-516* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


delay  opportunities  for  obtaining  securities  which  a  notice  or  an 
earlier  notice  would  have  given  him.  In  this  latter  case  a  very 
brief  delay,  of  a  day  or  two  only,  might  be  fatal  to  the  claim  of 
the  guarantee,  if  it  appeared  that  notice  could  easily  have  been 
given,  and  would  have  saved  the  guarantor  from  loss.  The 
question  would  be,  in  such  a  case,  was  there  actual  negligence, 
causing  actual  injury,  [del) 

A  demand  on  the  principal  debtor,  and  a  failure  on  his  part 
to  do  that  which  he  was  bound  to  do,  are  requisite  to  found 
any  claim  against  the  guarantor;  and  notice  of  the  failure,  as 
we  have  said,  must  be  given  to  him.  (e)  But  if  the  guaranty  is 
for  the  payment  of  a  note,  and  is  absolute  and  unconditional,  it 
has  been  held  that  neither  demand  nor  notice  is  necessary  to 
charge  the  guarantor ;  (ee)  but  we  should  have  some  question 
of  this. 


*SECTION    VIII. 

OF   GUAEANTY   BY   ONE   IN   OFFICE. 

If  a  guaranty  be  made  by  one  expressly  in  an  official  or 
special  capacity,  as  attorney,  executor,  guardian,  assignee, 
*trustee,  churchwarden,  or  the  like ;  and  the  guarantor  holds 
such  office,  and  has  a  right  to  give  the  guaranty  in  his  official 
capacity,  then  he  is  only  bound  in  that  capacity.  But  if  he 
does  not  hold  such  otfice,  or  if  he  holds  the  office,  but  has  no 
right  to  give  the  guaranty  in  that  capacity,  then  he  is  person- 
ally liable,  and  such  designation  is  merely  surplusage,  or  words 
of  description.  (/) 


(dd)  Oxford  Bank  v.  Hayncs,  8  Pick. 
423;  Thomas  v.  Davis,  14  Pick.  353; 
Talbot  V.  Gay,  18  id.  534;  Wliiton  v. 
Mcars,  1 1  I\Ictc.  563  ;  Farmers  &  Me- 
chanics' Bank  v.  Kercheval,  2  Mich.  505  ; 
Bickford  v.  Gibbs,  8  Cush.  154. 

(e)  Ibid.;  Douglass  v.  Eeynolds,  7  Pet. 
114.  But  this  demand  and  notice  may  be 
waived  bv  the  surety  in  his  guaranty. 
Bickford  v.  Gibbs,  8  Cush.  154. 

[542  ] 


(ee)  Read  v.  Cutts,  7  Greenl.  186  ; 
Breed  v.  Hillhouse,  7  Conn.  523 ;  contra, 
Greene  v.  Dodge,  2  Ham.  498 ;  Beebe  v. 
Dudley,  6  Post.  249. 

(/)  Redhead  v.  Cator,  1  Stark.  14; 
Hall  V.  Ashurst,  1  Cr.  &  M.  714 ;  Burrell 
V.  Jones,  3  B.  &  Aid.  47-51 ;  Appleton 
V.  Binks,  5  East,  148 ;  Sumner  v.  Wil- 
liams, 8  Mass.  162. 


CH.  Vlir.]  GUARANTY.  *ol7 


SECTION    IX. 

OF   REVOCATION   OF   GUARANTY. 

A  promise  of  guaranty  is  always  revocable  at  the  pleasure  of 
the  guarantor  by  sufficient  notice,  unless  it  be  made  to  cover 
some  specific  transaction  which  is  not  yet  exhausted,  or  unless 
it  be  founded  upon  a  continuing  consideration,  the  benefit  of 
which  the  guarantor  cannot  or  does  not  renounce.  If  the  prom- 
ise be  to  guarantee  the  payment  of  goods  sold  up  to  a  certain 
amount,  and  after  a  part  has  been  delivered,  the  guaranty  is 
revoked,  it  would  seem  that  the  revocation  is  good,  unless  it  be 
founded  upon  a  consideration  which  has  been  paid  to  the  guar- 
antor for  the  whole  amount;  or  unless  the  seller  has,  in  reliance 
on  the  guaranty,  not  only  delivered  a  part  to  the  buyer,  but 
bound  himself  by  a  contract  enforceable  at  law  to  deliver  the 
residue.  And  if  the  guaranty  be  to  indemnify  for  misconduct 
of  an  officer  or  servant,  this  promise  is  revocable,  provided  the 
circumstances  are  such  that  when  it  is  revoked  the  promisee 
may  dismiss  the  servant  without  injury  to  himself  on  his  failure 
to  provide  new  and  adequate  sureties. 

It  seems,  however,  that  a  distinction  is  taken  between  the 
power  of  revocation,  when  the  guaranty  is  given  by  parol  con- 
tract, and  when  it  is  under  seal.  In  the  former  case  this  power 
is  very  broadly  asserted,  but  in  the  latter  it  is  almost  wholly 
denied.  An  eminent  judge  says,  indeed,  that  there  *are  no 
means  or  mode  of  revocation  of  guaranty  under  seal,  (g-)  But 
whether  this  is  strictly  true  may  well  be  doubted. 

(f/)    Lord    Ellenliorou^h,   in    Ilasscll  v.  in  a  roiu't  of  law  a  letter  of  revocation  to 

Lon;;,  2  M.  &  S.  370.     And  sec  liai/lri/,  the  ohli^^cc  would  he  of  no  avail,  hut  that 

J.,  in  Calvert  v.  Gordon,  7  Ji.  «&  C.  809.  the  proper  court  for  relief  was  a  court  of 

So  in   Hough  v.  Warr,   1   C.  &  P.  l.")!,  equity. 
Abbott,  C.  J.,  expressed  the  opinion,  that 

[543] 


518-519* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


CHAPTER  IX. 


HIRING    OF   PERSONS. 


Sect.  1. —  Servants. 


In  England,  a  domestic  servant  who  is  turned  away  without 
notice,  and  without  fault,  is  entitled  to  one  month's  wages, 
although  there  be  no  agreement  to  that  effect.  (A)    *We  are  not 


(h)  Robinson  v.  Hindman,  3  Esp.  235. 
And  this  is  on  the  ground  that  a  yeneral 
hiring,  that  is  to  say,  a  hiring  without  any 
engagement  as  to  the  duration  of  the  ser- 
vice, is  presumed  to  be  a  hiring  for  a  year, 
and  it  will  be  construed  in  a  court  of  law 
to  be  a  hiring  on  the  terms  that  either 
party  might  determine  the  engagement 
upon  giving  a  month's  notice,  and  the  law 
implies  a  promise  by  the  master  to  pay  a 
month's  wages,  if  he  dismiss  his  servant 
without  cause,  witliout  giving  such  notice. 
See  Fawcett  v.  Cash,  5  B.  &  Ad.  904 ; 
Lilley  v.  Elwin,  11  Q.  B.  754;  Nowlan  v. 
Ablett,  2  C.  M.  &  R.  54  ;  Beeston  v.  Coll- 
yer,  4  Bing.  .309,  2  C.  &  P.  607  ;  Spain  ?-. 
Arnotr,  2  Stark.  257 ;  Huttman  v.  Boul- 
nois,  2  C.  &  P.  511 ;  Holcroft  v.  Barber,  1 
C.  &  K.  4 ;  Baxter  v.  Nurse,  1  C.  &  K. 
10.  But  this  presumption  of  a  j'early  hir- 
ing may  be  rebutted  by  evidence  showing 
that  such  was  not  the  intention  of  tiie 
parties.  Bayley  v.  Rimmcll,  1  M.  &  W. 
506.  This  was  an  action  by  an  assistant 
surgeon,  against  his  employer,  to  recover 
the  amount  of  salary  due  him  in  that  capac- 
ity. The  plaintiff'  claimed  for  salary  for  a 
hundred  and  sixty-one  days,  at  the  rate  of 
£200  per  annum,  and  he  so  described  his 
claim  in  the  jiarticulars  of  liis  demand  an- 
nexed to  the  record.  No  specific  contract 
of  hiring  was  proved,  but  evidence  was 
given  of  the  service.  It  appeared  that 
after  the  plaintiff"  had  been  some  time  iu 

[544-] 


the  defendant's  employment,  he  was  taken 
ill,  and  went  to  a  hospital,  where  he  re- 
mained three  months.  He  did  not  return 
to  his  employment,  nor  did  the  defendant 
request  him  to  do  so.  It  appeared  that 
the  plaintiff"  had  been  paid  different  sums 
of  money,  but  not  at  any  fixed  or  definite 
periods.  It  was  submitted  that  upon  this 
evidence  it  must  be  taken  to  be  a  general 
hiring,  and  that  in  legal  estimation  that 
was  a  hiring  for  a  year,  and  therefore  that 
no  wages  were  recoverable,  as  the  year's 
service  had  not  been  performed.  Sed  non 
allocatur;  and  Parke,  B.,  in  giving  the 
opinion  of  the  court,  observed:  "Ad- 
mitting that  there  was  some  evidence  of  a 
hiring,  and  agreeing  in  the  proposition 
that  a  general  hiring,  if  unexplained,  is  to 
be  taken  to  be  a  hiring  for  a  year,  I  think 
there  is  abundant  evidence  in  this  case  to 
show  that  there  was  no  hiring  for  a  year. 
It  appears  that  payments  were  made,  but 
thej'  were  not  made  according  to  the 
yearly  amount,  nor  at  any  definite  periods 
of  the  year.  The  parties  separated  in  the 
middle  of  the  year,  and  neither  did  the 
plaintiff  return,  nor  did  the  defendant  re- 
cjuire  him  to  return  and  complete  the  ser- 
vice. If,  indeed,  the  jury  ought  to  have 
found  whether  this  was  a  yearly  hiring, 
the  learned  judge  should  have  been  re- 
quired to  leave  that  question  to  them  ;  but 
there  is  really  nothing  to  show  that  the 
compensation  was  to  be  paid  at  the  end  of 


en.  IX.] 


HIRIXG   OF   PERSONS. 


-519 


aware  that  a  siinilar  rule  exists  in  this  country ;  but  where  the 
wages  are  payable  at  definite  periods,  as  by  the  week  or  by  the 
month,  the  contract  for  each  period  would  perhaps  be  con- 
sidered as  so  far  entire,  that  a  servant  leaving  without  cause 
after  the  month  had  commenced  could  not  recover  wages  for 
his  services  within  that  month;  and  a  master  turning  off  his 
servant  without  cause  would  be  bound  to  pay  him  his  wages 
through  the  month.  This,  however,  may  be  doubted  unless 
there  was  some  agreement  expressed  or  distinctly  inferable  from 
the  contract,  or  a  custom  or  usage  were  proved  which  the 
parties  might  be  considered  as  having  contemplated,  (i) 


the  year."  The  presumption  of  a  yearly 
hiring;  is  not  a  presumption  of  laic,  but  of 
fiict  merely.  Cressire/I,  J.,  in  Baxter  v. 
Nurse,  6  M.  &  Gr.  941,  and  the  presump- 
tion of  a  yearl\'  hirin<r  does  not  arise, 
where  the  services  of  the  scn'ant  arc  ex- 
pressed to  be  at  the  will  of  either  party ; 
as  where  a  boy  was  hired  by  a  farmer,  for 
his  meat  and  clothes,  "  so  lonr/  r/.s  he  had  a 
mind  to  slop."  Rex  v.  Christ's  Parish, 
York,  3  B.  &  C.  459.  See  also,  Rex  v. 
Great  Borden,  7  B.  &  C.  249.  As  to  what 
words  are  sufHcient  to  constitute  a  yearly 
hiring  see  Emmery  v.  Elderton,  26  E.  L. 
&  E.  1.  There  was  formerly  a  doubt 
whether  a  contract  to  serve  dun'm/  Ilff  was 
valid,  but  it  seems  that  such  contract  is 
not  itself  illegal.  Lord  Ahinqer,  in  Wallis 
V.  Day,  2  JL  &  W.  281.  See  further,  1 
Bl.  Com.  425,  n.  i;  Christian's  ed. 

(/)  In  England  this  doctrine  rests  on 
the  ground  that  the  parties  may  make  the 
contract  with  reference  to  (/emral  nswjc, 
which  thereby  becomes  a  ])art  of  the  con- 
tract. See  Tunier  v.  Robinson,  5  B.  & 
Ad.  789  ;  Ridgway  r.  Ilungeiford  Market 
Co.  .3  Ad.  &  El.  171.  In  this  country  it 
has  been  hM  tiiat  a  contract  to  work  "  for 
eight  months  for  S104,  or  S13  a  month," 
was  so  far  an  entire  contract  that  if  the 
plaintiff  left  without  cause,  l)cforc  the 
eight  months,  he  could  not  recover  for  any 
part  of  the  time ;  and  although  he  had 
worked  more  than  a  month,  he  was  not 
allowed  to  recover  for  a  niontli,  since 
there  was  no  provision  that  he  should  be 
paid  monthly.  Reab  v.  Moor,  19  Johns. 
337.  So,  where  the  plaintiff  agreed  to 
work  for  the  defendant  "  scun  iiioiilhs,  nt 
S12  pel-  month,"  it  was  held  that  this  was 
an  entire  contract ;  that  $84  were  to  be 
paid  at  the  end  of  the  seven  mouths,  and 

*46 


not  812  at  the  end  of  each  month;  and 
that  if  the  plaintiff  left  without  good 
cause,  before  the  seven  months  were  ex- 
])ired,  he  could  not  recover  any  thing  for 
his  services,  although  the  defendant  had 
paid  a  part  during  the  continuance  of  the 
service.  Davis  v.  ISIaxwell,  12  Met.  286. 
In  this  case,  Hubbard,  J.,  said  :  "  In  re- 
gard to  the  contract  itself,  which  was  an 
agreement  to  work  for  the  defendant  for 
seven  months,  at  twelve  dollars  per  month, 
we  arc  of  opinion  that  it  was  an  entire 
one,  and  that  the  plaintiff,  having  left  the 
defendant's  service  before  the  time  expired, 
cannot  recover  for  the  partial  sersico  per- 
formed ;  and  that  it  differs  not  in  principle 
from  the  adjinlged  cases  of  Stark  r.  Parker, 
2  Pick.  2f.7  ;  Ulmstead  i\  Beale,  19  Pick. 
528  ;  and  Thayer  v.  Wadsworth,  19  Pick. 
349  ;  which  we  are  unwilling  to  disturb, 
upon  mere  verbal  diflcrcnces  between  the 
contracts  in  those  cases  and  in  this,  which 
do  not  affect  its  spirit.  Tlie  plaintiff  has 
argued  that  it  wivs  a  contract  for  seven 
months,  at  twelve  dollars  per  month,  to  be 
paid  at  the  end  of  each  month.  But 
however  reasonable  such  a  contract  might 
be,  it  is  not,  we  think,  the  contract  which 
is  proved.  There  is  no  time  fixed  for  the 
payment,  and  the  law  therefore  fixes  the 
tin'ic  ;  and  that  is,  in  a  case  like  this,  the 
period  when  the  service  is  performed.  It 
is  one  bargain  ;  performance  on  one  part 
and  payment  on  the  other ;  and  not  per- 
formance aiul  full  payment  for  the  part 
performed.  The  rate  per  month  is  stated, 
as  is  common  in  such  contracts,  as  fixing 
the  rate  of  payment,  in  ca.se  the  contract 
should  be  given  up  by  consent,  or  death  or 
other  casualty  should  determine  it  before 
its  expiration',  without  aflVcting  the  right 
of  the  partv.     Such  contracts  for  hire,  for 

[545] 


520-521* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


Where  the  contract  is  for  a  time  certain,  if  the  master  dis- 
charge the  servant  before  the  time,  he  is  still  liable,  unless  the 
servant  have  given  cause,  by  showing  himself  unable  or  unwill- 
ing to  do  what   he  has  undertaken  to  do,  (J)      A  *promise  by 


definite  periods  of  time,  are  reasonable  and 
convenient,  are  founded  in  practical  wis- 
dom, and  have  long  received  the  sanction 
of  tlie  law.  It  is  our  duty  to  sustain  them 
wlicn  clearly  jjroved."  See  also,  Eldridge 
V.  Kowe,  2  Gilman,  91.  So  in  Nichols  v. 
Coolahan,  10  ^let.  449,  where  a  contract 
was  made  liy  N.  and  C,  tluit  N.  should 
have  eleven  dollars  per  month  and  board, 
so  long  as  he  should  work  for  C. ;  C.  in- 
forming N.  that  he  (C.)  might  not  have 
two  days'  work  for  him.  N.  worked  for 
C.  several  months,  and  brought  an  action 
for  his  wages,  and  annexed  to  his  writ  a 
hill  of  particulars,  in  which  he  charged  the 
price  agreed  on  per  month,  and  gave  C. 
credit  for  a  certain  sum  on  account  of 
three  weeks'  sickness  of  N.,  during  which 
time  he  was  unable  to  work.  C.  filed  in 
set-otf  an  account  against  N.  for  board 
during  his  sickness.  JAhl,  that  the  con- 
tract was  a  Iiiring  ])y  the  month  ;  that  C. 
was  not  entitled  to  ])ayment  for  N.'s  board 
during  his  sickness  ;  iiut  that  N.  could  not 
recover  wages  during  any  part  of  the  time 
of  his  detention  from  work  by  sickness.  — 
And  wherever  the  contract  shows  that  the 
hiring  was  intended  for  a  longer  term,  as 
for  a  year,  the  mere  reservation  of  wages 
for  a  shorter  term,  as  so  much  per  week, 
or  per  month,  will  not  control  the  hiring. 
Thus,  where  a  farm  servant  was  hired  for 
a  year,  at  three  shillings  a  week,  with  lib- 
erty to  go  at  a  fortnight's  notice,  the  con- 
tract was  held  to  be  a  hiring  for  a  year,  the 
fortnight's  notice  plainly  showing  that  it 
was  not  a  weekly  hiring.  Kex  v.  Bird- 
brooke,  4  T.  R.  245.  In  England,  in  the 
hiring  of  domestic  servants  for  a  year, 
there  is  generally  an  implied  condition 
arising  from  general  custom,  that  the  con- 
tract may  be  determined  by  a  month's 
notice  to  quit,  and  if  the  sen'ant  leave 
without  such  notice,  and  without  the  fault 
of  his  master,  he  can  recover  nothing  for 
his  services.     See  Hartley  v.  Cummings, 

5  C.  E.  247  ;  Pilkington  v.   Scott,   15  M. 

6  W.  G57  ;  Ai-chard  v.  Hornor,  3  C.  &  P. 
349 ;  Johnson  r.  Blenkenso]i,  5  Jurist, 
870 ;  Nowhin  v.  Ablctt,  2  C.  M.  &  R.  54  ; 
Debriar  v.  Minturn,  1  Cala.  450.  But  it 
has  been  held  in  this  country  that  where 
one  enters  into  the  service  of  employers, 
under  no  express  agreement  to  continue  in 

[546] 


their  service  for  any  definite  time,  but 
with  a  knowledge  of  a  regulation  adopted 
by  them  requiring  that  all  persons  em- 
ployed by  them  shall  give  them  four 
weeks'  notice  of  an  intention  to  quit  their 
service,  lie  does  not  forfeit  his  wages  by 
c[uitting  their  service  witiiout  giving  such 
notice  ;  but  he  is  liable  to  them  for  all 
damages  caused  by  his  not  giving  the 
notice  ;  and  in  a  suit  against  them  for 
his  wages,  the  amount  of  such  damages 
may  be  deducted  therefrom.  Hunt  v.  "The 
Otis  Company,  4  Met.  464. 

(j)  It  seems  that  where  a  servant  is 
hired  for  a  year,  or  other  fixed  period,  at 
an  entire  sum,  and  is  discharged  by  his 
employer,  witiiout  cause,  during  the  term, 
he  may  at  the  end  of  the  time  recover  for 
the  u-hvk  time,  according  to  the  contract. 
Gandell  r.  Pontigny,  4  Camp.  375  ;  Costi- 
gan  V.  The  Mohawk  &  Hudson  Railroad 
Co.  2  Denio,  609  ;  Cox  r.  Adams,  1  N. 
&  McC.  284  ;  Clancey  v.  Robertson,  2  Rep. 
Con.  Ct.  404 ;  Byrd'  v.  Boyd,  4  McCord, 
246.  It  seems,  however,  that  the  action 
in  such  case  should  be  special,  and  not  for 
work  and  labor  done.    Fewings  v.  Tisdal, 

1  Exch.  295  ;  Archard  v.  Hornor,  3  C.  & 
P.  349 ;  Smith  v.  Hayward,  7  Ad.  &  El. 
544 ;  Broxham  v.  Wagstaffe,  5  Jurist, 
845  ;  Hartley  v.  Harman,  11  Ad.  &  El. 
798.   But  if  the  servant  obtains  work  clse- 

,  where,  during  tiie  continuance  of  the  term 
for  which  lie  was  originally  employed  by 
the  defendant,  this  ought,  and  probably 
would,  reduce  the  damages  to  which  the 
servant  would  otherwise  be  entitled  by 
such  wrongful  dismissal.  Stewart  v. 
Walker,  14  Penn.  293.  And  see  Costi- 
gan  r.  The  Moiiawk  &  Hudson  R.  R.  Co. 

2  Denio,  617,  Ut-anlslei/,  J. ;  Hoyt  v.  Wild- 
fire, 3  Johns.  518  ;  Emerson  v.  Howland, 
1  IMason,  51.  In  Goodman  v.  Pocock,  15 
Q.  B.  576,  a  clerk  dismissed  in  the  mid- 
dle of  a  quarter  brought  an  action  for  a 
wrongful  dismissal,  the  declaration  con- 
taining a  special  count  for  such  dismis- 
sal. The  jury  were  directed  not  to  take 
into  account  the  services  actually  rendered 
during  the  broken  quarter,  as  tiiey  were 
not  recoverable  except  under  an  indebitatus 
count,  and  they  gave  damages  accordingly. 
The  i)laintiff  then  brought  a  second  action 
to  recover  ulider  an  indebitatus  count  for 


en.  IX.] 


HIRIXG    OF   PERSONS. 


*522 


the  servant  to  obey  the  lawful  and  reasonable  orders  of  his 
master,  within  the  scope  of  his  contract,  is  implied  by  law  ;  and 
a  breach  of  this  promise,  in  a  material  matter,  justifies  the 
master  in  discharging  him.  (/>:) 

*If  the  contract  be  for  a  time  certain,  and   the  servant  leave 
without  cause  before  the  time  expires,  it  has  been  held  in  many 


his  scn-iccs  during  the  broken  quarter.  It 
was  held  tliat  the  action  was  not  maintain- 
able, because  tiie  phiintiti'  by  iiis  former 
action  on  the  special  contract  had  treated 
it  as  an  open  contract,  and  he  could  not 
afterwards  recover  under  the  indehitatits 
count  as  for  services  under  a  rescinded 
contract.  It  was  also  hel'l,  that  in  the 
former  action  tiic  jury  ouglit  to  have  !)ecn 
directed  to  take  the  services  rendered  dur- 
ing the  broken  quarter  into  accoiTut,  in 
awarding  damages  under  the  sjiecial  count 
for  the  wrongful  dismissal.  And,  sr-mhip, 
per  Pattcson,  J.,  and  Kiie,  J.,  that  uniler 
an  indfhltdtus  count  the  servant  wrongfully 
dismissed  before  the  termitiation  of  the 
period  for  wliit'h  he  was  hired  cannot  re- 
cover his  whole  wages  up  to  such  termina- 
tion, as  for  a  constructive  service,  but  can 
recover  only  in  respect  of  his  service  up  to 
the  time  of  his  dismissal.  See  Lillcv  r. 
Ehvin,  11  Q.  B.  755 ;  Green  v.  Hulctt',  22 
Verm.  188. 

(Ic)  Per  curiam,  in  The  King  v.  St.  John, 
Devizes,  9  B.  &  C.  900.  The  wilful  dis- 
obedience, on  the  part  of  the  servant,  of 
any  lawful  order  of  the  master,  is  a  good 
cause  of  discharge.  Sjiaiu  v.  Arnott,  2 
Stark.  2.')6  ;  Callo  i-.  Brounckcr,4  C.  &  P. 
518;  Amor  r.  Fcaron,  9  Ad.  &  El.  548. 
See  also  Eillieul  v.  Armstrong,  7  Ad.  & 
El.  5.")7.  In  the  case  of  Turner  r.  Mason, 
14  M.  &  W.  112,  an  action  of  assiim]>sit 
was  brought  for  the  wrongful  dismissal  of 
ft  domestic  servant,  without  a  month's 
notice,  or  payment  of  a  month's  wages. 
Plea,  that  the  jdaintiff  refpiested  the  de- 
fendant to  give  her  leave  to  absent  herself 
from  his  service  during  the  night,  that 
he  refused  such  leave  and  forbade  her 
from  so  absenting  herself,  and  that  against 
his  will  she  nevertheless  absented  herself 
for  the  night,  and  until  the  following  day, 
whereupon  he  discharged  her.  Replica- 
tion, that  when  the  plaintift"  requested  the 
defendant  to  give  her  leave  to  absent  her- 
self from  his  service,  her  mother  had  been 
seized  with  sudden  and  violent  sickness, 
and  was  in  imminent  danger  of  death,  and 
believing  herself  likely    to  die,  recjuested 


the  plaintiff  to  visit  her  to  sec  licr  before 
her  death,  wliereupon  the  plaintiff"  rerptcst- 
ed  the  defendant  to  give  her  leave  to  ab- 
sent herself  for  that  purpose,  she  not  Ijeing 
likely  thereby  to  cause  any  injury  or  hinder- 
ance  to  his  domestic  affairs,  and  not  in- 
tending to  be  thereby  guilty  of  any  im- 
proper omission  or  unreasonable  delay  of 
her  duties ;  and  because  the  defendant 
wrongfully  and  unjustly  forbade  her  from 
so  absenting  herself  for  the  purpose  of 
visiting  her  mother,  &c.,  slie  left  bis  house 
and  service,  and  absenteil  licrself  fur  that 
purpose  for  the  time  mentioned  in  the  plea, 
the  same  being  a  reasonable  time  in  that 
behalf,  and  she  not  causing  thereby  any 
hinderance  to  his  domestic  affiiirs,  nor  be- 
ing thereby  guilty  of  any  improper  omis- 
sion or  unreasonable  delay  of  her  duties, 
as  she  lawfully  might,  &"c.  I/eld,  on  de- 
muiTcr,  that  tlie  plea  was  good,  as  show- 
ing a  dismissal  for  disobedience  to  a  lawful 
order  of  the  master,  and  that  the  rei»lica- 
tion  was  bad,  as  showing  no  sufficient  ex- 
cuse for  such  disobedience.  So  where  the 
servant  assaulted  his  employer's  servant 
maid,  with  intent  to  commit  a  rape  upon 
her.  Atkin  v.  Acton,  4  C.  &  P.  208.  Or 
commits  any  crime,  though  the  same  be 
not  immcdiatelv  injurious  tohis  emplover. 
Libhart  r.  Wo6d,  1  W.  &  S.  2G5.  'So 
where  an  unmarried  female  servant  be- 
comes jiregnant.  Ivcx  v.  BramjUon,  Caldc- 
cott,  li,  14.  So  using  abusive  language 
to-  his  employer.  Byrd  v.  Boyd,  4  >Ic- 
Cord,  246.  Or  quarrels  with  a  fellow 
clerk  in  the  store,  in  the  jircscnce  of  ladies, 
and  draws  a  revolver.  Kearner  r.  Holmes, 
6  Louis.  Ann.  373.  Or  is  guilty  of  any 
misconduct,  inconsistent  with  the  relation 
of  master  and  senant.  Singer  r.  McCor- 
mick,  4  W.  &  S.  265.  As  if  the  servant 
set  up  a  claim  to  be  a  partner  with  liis 
employer.  Amor  v.  Fearon,  9  Ad.  &  El. 
548.  Or  conduct  so  as  materially  to  in- 
jure his  em])lover's  business.  Lacy  v. 
Osttaldiston,  8  C.  &  K.  80.  Or  is  guilty 
of  repeated  intoxication  ;  semUe,  Wi.<e  v. 
Wilson,  1  C.  &  K.  662.  And  see  further 
Arding  v.  Lomax,  28  E.  L.  &  E.  543. 

[547] 


523* 


THE   LAW    OP  CONTKACTS. 


[book   III. 


cases',  ill  England  and  in  this  country,  that  he  has  no  claim  for 
the  services  he  has  rendered.  (/)      Some  of  these  *cases  are  of 


(/)  If  this  question  is  to  be  governed 
solely  by  the  number  of  authorities,  it 
would  seem  to  bo  at  rest,  for  it  is  supported 
by  the  following  adjudged  cases  :  Cutter 
V.  Powell,  6  T'.  R.  320  ;  Lillev  v.  Elwin, 
11  Q.  B.  755;  Stark  v.  Parker,  2  Pick. 
267;  McMillan  v.  Vanderlip,  12  Johns. 
165;  Jennings  v.  Camp,  13  id.  94;  Reab 
V.  Moor,  19  id.  337;  Waddington  v.  Oli- 
ver, 5  B.  &  P.  61  ;  Ellis  v.  Hamlen,  3 
Taunt.  52;  Marsli  v.  Kulesson,  1  Wend. 
514;  Miller  r.  Goddard,  34  Me.  102; 
Faxon  v.  Mansfield,  2  Mass.  147  ;  Lantry 
V.  Parks,  8  Cow.  63  ;  Ketchum  v.  Evert- 
gon,  13  Johns.  365  ;  Sickels  v.  Pattison, 
14  Weud.  257  ;  Weeks  v.  Leighton,  5  N. 
Hamp.  343  ;  Olmstead  v.  Bcale,  19  Pick. 
528  ;  Thayer  r.  Wadsworth,  id.  349  ;  St. 
Alban's  Steamboat  Co.  v.  Wilkins,  8 
Verm.  54  ;  Davis  v.  Maxwell,  12  Met. 
286 ;  Hunt  v.  Otis  Man.  Co.  4  id.  465 ; 
Winn  V.  Southgate,  17  Verm.  355;  Sut- 
ton V.  Tyrcll,  12  id.  79;  Ripley  v.  Chip- 
man,  13  id.  268  ;  Coe  v.  Smith,  1  Cart. 
(Ind.)  267;  Swift  v.  Williams,  2  Carter, 
365  ;  Hawkins  v.  Gilbert,  19  Ala.  54. 
Nor  does  it  make  any  difference  in  this 
respect  whether  the  wages  are  estimated 
at  a  gross  sum,  or  are  to  be  calculated 
according  to  a  certain  rate  per  week  or 
month,  or  are  payable  at  certain  stipulated 
times,  provided  the  servant  agree  for  a 
definite  and  whole  term  ;  such  an  arrange- 
ment being  perfectly  consistent  with  the 
entirety  of  the  contract.  Davis  v.  Max- 
well, 12  Met.  286.  The  law  on  this  point 
was  fully  affirmed  in  tlie  late  case  of  Winn 
V.  Southgate,  17  Verm.  355.  It  was  there 
held  that  if  one  contract  to  labor  for  an- 
other fur  a  specified  term,  and  leave  the 
service  of  his  emjiloyer  before  the  expirp,- 
tion  of  tlie  term,  without  any  cause,  attrit)- 
utable  either  to  the  emjiloyer  or  to  the  act 
of  providence,  he  cannot  recover  any  com- 
pensation for  the  portion  of  the  term  dur- 
ing which  he  in  fact  labors.  And  it 
makes  no  difference  that  the  employei", 
before  the  ex])iration  of  the  term,  permit- 
ted the  plaintiff  to  be  absent  from  his  em- 
ployment for  a  few  weeks  upon  a  journey, 
—  the  plaintiff  having,  after  his  return, 
again  resumed  labor  for  his  employer, 
under  the  contract.  Nor  does  it  make 
any  difference,  that  the  plaintiff  ceased 
laboring  for  bis  employer,  under  the  be- 
lief that,  according  to  the  legal  method  of 
computing  time,  under  similar  contracts, 

[548] 


he  had  continued  laboring  as  long  as  could 
be  required  of  him.  Nor  that  the  em- 
ployer, during  the  term,  has  from  time  to 
time  made  payments  to  the  jilaintift"  for 
his  lal)or.  But  if,  in  such  case,  the  de- 
fendant have  made  payments  to  the  plain- 
tiff upon  the  contract,  during  the  term, 
and  the  plaintiff,  having  commenced  an 
action  of  book  account  to  recover  for  his 
services,  is  defeated,  upon  the  ground  that 
he  left  the  service  of  the  defendant,  with- 
out legal  cause,  before  the  expiration  of 
the  term,  the  defendant  can  have  no  re- 
covery against  tlie  plaintiff' for  the  amount 
of  payments  thus  made.  See  also  Rice  v. 
The  bwight  Man.  Co.  2  Cush.  80,  where 
it  is  again  held  that  if  A  enter  into  the  ser- 
vice of  B  upon  an  agreement  to  labor  for 
him  a  year,  and  leave  at  the  end  of  six 
months,  A  can  maintain  no  action  for  the 
services  so  rendered  ;  but  if  B  then  prom- 
ise A  to  pay  him  for  the  six  months'  labor, 
upon  the  performance  of  any  additional 
service,  however  slight,  or  the  doing  of 
some  act  by  A,  to  his  personal  inconven- 
ience, though  of  no  value  to  B,  and  such 
service  is  rendered,  or  act  done,  this  will 
so  far  operate  as  a  waiver  of  the  original 
contract  that  an  action  may  he  maintained 
by  it  for  the  six  months'  labor.  That  an 
offer  to  pay,  by  the  employer,  is  a  waiver 
of  all  forfeiture,  see  also  Seaver  r.  Morse, 
20  Verm.  620.  So  where  the  employer 
gives  the  laborer  a  note,'  before  the  time 
for  which  he  was  hired  has  elapsed,  for 
the  amount  of  wages  already  earned,  he 
cannot  resist  payment  thereof  by  showing 
that  the  payee  left  his  service  before  the 
expiration  of  the  time  for  which  he  was 
originally  hired.  Thorpe  v.  White,  13 
Johns.  53.  See  also  Hayden  r.  Madison, 
7  Greenl.  76.  The  rule  before  adverted 
to  as  to  entire  performance  is  not  binding 
upon  persons  under  the  age  of  twenty-one 
years,  and  although  they  engage  to  work 
a  specified  time,  and  for  a  specified  sum, 
they  may  nevertheless  leave  when  they 
please,  and  recover  upon  a  rjuantmn  meruit 
for  what  their  services  are  really  worth. 
Moses  V.  Stevens,  2  Pick.  332 ;  Judkins 
V.  Walker,  17  Maine,  38  ;  Bishop  v.  Shep- 
herd, 23  Pick.  492;  Vent  v.  Osgood,  19 
id.  572  ;  Thomas  v.  Dike,  11  Verm.  273  ; 
Medbiiry  v.  Watrous,  7  Hill,  110  ;  Whit- 
marsh  i\  Hall,  3  Denio,  375  ;  deducting, 
it  set?ns,  any  damage  to  his  employer  by 
such  violation  of  the  contract.     Thomas 


en.  IX.] 


HIRING    or   PERSONS. 


*524 


great  severity  ;  as  where  the  hiring  was  for  a  year,  and  after 
ten  months  and  a  half  the  servant  went  away,  saying  he  would 
work  no  more  for  that  master,  and  after  two  days  returned  and 
offered  to  fulfil  his  contract,  and  the  master  refused  to  receive 
him,  it  was  held  that  the  servant  could  recover  no  wages  for  the 
time  he  had  worked,  (m)  The  ground  taken  in  these  cases, 
and  on  which  they  all  seem  to  rest,  is  the  entirety  of  the  con- 
tract, which  is  supposed  to  prevent  any  apportionment  of  the 
wages.  And  it  has  been  held  that  the  *servant  cannot  recover 
if  he  left  because  the  master  required  of  him  services  different 
from  those  specified  in  the  contract,  if  he  made  no  objection 
thereto,  (n)     But  if  prevented  from  performing  the  stipulated 


V.  Dike,  11  Verm.  273  ;  Moses  r.  Stevens, 

2  Pii-k.  3.32;  Judkins  r.  Walker,  17  Me. 
38.     But  see  contra,  Whitinarsh  v.  Hall, 

3  Denio,  375,  where  the  subject  was  fully 
considcrccl,  and  Jercott,  J.,  observed  upon 
this  point :  "  It  is  insisted  on  the  j)art  of 
tlie  defendants  that  the  justice  erred  in 
rejectin<^  the  evidence  offered  by  them,  on 
the  pronnd  that,  althou<;:h  the  plaintiff  was 
an  infant,  and  had  a  rif:ht  to  avoid  his 
contract  and  recover  the  value  of  his  ser- 
vices, yet  that  the  defendants  were  enti- 
tled, if  they  had  sustained  an  injury  by 
such  avoidance,  to  have  a  proper  allow- 
ance therefor  made  a^'ainst  such  value. 
In  other  words,  it  is  claimed  that  the  de- 
fendants are  entitled,  as  a  set-ofi"  aj^ainst 
the  value  of  the  plaiutiirs  services,  to  such 
sum  as  is  equal  to  the  amount  of  the  in- 
jury sustained  by  them,  by  the  avoidance 
of  the  contract  by  the  plaintiff',  which  in 
effect  would  chari^e  the  infant  with  the 
performance  of  his  contract,  or  with  dam- 
ages for  its  violation.  The  piojiosition  is 
not  sustained  Ijv  any  elcmentai-y  principle 
known  to  the  law,  and  I  do  not  find  that 
it  has  been  reeof^nizcd  by  any  adjudj;cd 
case,  unless  by  that  of  Moses  ?•.  Stevens,  2 
Pick.  332.  In  that  case  the  jilaintift",  an 
infaut,  h;id  made  a  special  a;.n-('emcnt  to 
labor  for  the  defendant  a  certain  time  for 
certain  wages,  and  before  the  time  expired 
left  his  service  voluntarily,  without  cause. 
It  was  }irl<1  that  he  might  JTCovcr  on  a 
(juantiiin  viiridt  for  the  services  performed, 
and  if  his  employer  was  injured  1)V  the 
sudden  termination  of  the  CDiitract  without 
notice,  a  deduction  shf>uld  be  made  on 
that  account.  The  learned  jiulge,  in  de- 
livering the  opinion  of  the  court,  said : 


'  We  think  the  special  contract  being 
avoided,  an  indchitatus  assiimpsi/  upon  a 
quantum  meruit  lies,  as  it  would  if  no  con- 
tract had  been  made ;  and  no  injustice 
will  be  done,  because  the  jury  will  give  no 
more  than,  under  all  circumstances,  the 
services  were  worth,  mahing  any  allowance 
for  any  disappointnwnt,  amountimi  to  an  in- 
jury, ichirh  the  defendant  in  such  case  iroidd 
sustain  by  the  avoidance  of  the  contract.' 
With  great  respect,  I  am  unable  to  yield 
my  assent  to  the  soundness  of  the  qualifi- 
cation annexed  to  the  proposition.  I 
think  that  the  infant  plaintiff",  in  such  an 
action,  is  entitled,  by  well-settled  princi- 
])les  of  law,  to  recover  such  sum  for  his 
services  as  he  would  be  entitleil  to  if  there 
had  been  no  express  contract  made.  A 
recovery  is  allowed  upon  the  assumption 
that  there  is  no  express  contract  at  all." 
But  in  the  ca.se  of  ^loultou  r.  Trask,  9 
Met.  .577,  decided  since  Whitmarsh  v. 
Hall,  it  was  held  that  where  a  minor 
makes  a  contract,  either  absolute  or  con- 
ditional ,  to  labor  for  a  year,  for  one  hun- 
dred dollars,  and  his  employer,  without 
sufficient  cause,  discharges  him  before  the 
year  expires,  ind<hitatus  assum]>sit  may  be 
maintained  for  the  minor's  wages  for  the 
time  <luriiig  which  he  laliored ;  and  his 
eini)loycr  is  bound  to  pay  at  the  rate  of 
one  hundred  dollars  a  year,  deducting  any 
loss  that  he  may  have  sustained  from  the 
minor's  unfaithfulness,  or  occasional  ab- 
sence without  leave.  See  also,  ante,  p. 
2G3,  n.  (/) 

(/«)  Lantry  r.  Parks,  8  Cowen,  63. 

(n)  Hair  r.  Bell,  6  Verm.  35  ;  Mullen 
V.  Gilkinson,  19  id.  503.  See  also  De 
Camp  V.  Stevens,  4  Blackf.  24.     In  tliis 

[549] 


524- 


THE    LAW   OF   CONTRACTS. 


[book  III. 


amount  of  labor  by  sickness,  or  similar  inability,  he  may  recover 
pay  for  what  he  has  done  on  a  quantum  meruit,  (o) 

The  case  of  Britton  v.  Turner,  6  New  Hamp.  R.  481,  [p)  re- 


case  a  person  contracted  to  work  for  a 
year,  at  a  certain  sum  per  month ;  but 
after  working  three  months  and  ten  days, 
he  left  his  employer,  and  sued  him  for  the 
work  thus  done.  It  was  proved  that  the 
defendant  had  manifested  a  disposition  to 
get  the  plaintiff  to  leave  him,  and  had 
said,  after  the  plaintiff  was  gone,  that  he 
was  glad  of  it,  as  the  plaintiff  was  worth 
nothing.  Held,  that  the  action  was  not 
sustained. 

(o)  Dickey  v.  Linscott,  20  Maine,  453  ; 
Fenton  v.  Clark,  11  Verm.  557.  In  this 
case,  Bennett,  J.,  in  giving  the  opinion  of 
a  majority  of  the  court,  observed  :  "  In 
the  case  before  the  court,  the  plaintiff  con- 
tracted with  the  defendant  to  labor  person- ' 
ally  for  him  for  four  months,  at  ten  dol- 
lars per  month,  and  by  the  terms  of  the 
contract,  was  to  receive  no  pay  till  he  had 
worked  the  four  months.  These  ser\aces 
being  of  a  personal  character,  the  contract 
could  not  be  performed  by  another,  and 
as  the  plaintiff  was  disabled  to  perform  it 
himself,  by  reason  of  sickness,  which  was 
the  act  of  God,  upon  the  authority  of  the 
foregoing  cases,  the  contract  was  dis- 
charged. The  inquiry  then  arises,  what 
is  the  result  ?  It  appears  to  me  apparent 
that  the  plaintiff  must,  at  least,  after  the 
expiration  of  the  four  months,  be  permit- 
ted to  recover  as  upon  a  quantum  meruit, 
pro  rata,  for  the  services  rendered.  Com- 
mon justice  requires  this,  and  I  should  be 
Sony  to  find  that  it  was  not  tolerated  by 
the  principles  of  the  common  law.  To 
hold,  in  a  case  like  this,  where  the  ])lain- 
tiff  has  been  discharged  of  his  contract  by 
the  act  of  God,  that  there  can  be  no  ap- 
portionment, upon  the  technical  ground 
that  the  contract  is  entire,  and  its  perform- 
ance a  condition  precedent,  is,  to  my  mind, 
leaving  the  substance  and  adhering  to  the 
shadow."  Redfield,  J.,  dissented.  See 
also  Seaver  v.  Morse,  20  Verm.  620.  In 
this  case  the  plaintiff,  having  contracted 
to  labor  for  the  defendant  six  months,  at 
a  specified  price  for  the  term,  was  taken 
unwell,  and  left  the  defendant's  service, 
and  was  so  unwell,  for  about  a  month, 
that  he  was  unable  to  perform  tiie  full 
labor  of  a  man,  and  then  he  recovered  his 
health,  l)ut  did  not  return  to  the  defend- 
ant's employment.  It  was  luld  that  he 
was  entitled  to  recover  for  his  services, 
[550] 


upon  a  quantum  meruit,  for  the  time  he 
labored.  And  it  was  also  held  that,  if  this 
were  not  so,  an  offer  by  the  defendant, 
after  the  plaintiff  had  left  his  service,  to 
pay  the  plaintiff  the  amount  due  to  him, 
at  the  rate  of  compensation  fixed  by  the 
original  contract,  was  a  waiver  of  all  claim 
of  forfeiture.  To  the  same  effect  is  Fuller 
V.  Brown,  11  Met.  440,  where  a  special 
agreement  was  made  by  A  and  B,  that 
A  should  work  for  B,  and  that,  if  he  should 
be  dissatisfied,  and  wish  to  leave  the  ser- 
vice, he  should  give  B  four  weeks'  notice, 
and  work  for  him  four  weeks  after  the  no- 
tice, and  then  receive  his  pay.  After  A 
had  begun  to  work  under  this  agreement, 
he  became  sick  and  unable  to  work,  and 
left  B  witliout  giving  four  weeks  notice, 
and  remained  sick  for  sevei-al  weeks. 
Held,  that  this  agreement  as  to  notice  ap- 
plied to  a  voluntary  leaving  of  the  service 
by  A,  and  not  to  a  leaving  by  reason  of 
his  sickness  and  inability  to  continue 
therein  ;  and  that  he  was  entitled  to  recover 
a  proper  compensation  for  the  work  which 
he  had  done.  And  see  Fahy  v.  North,  19 
Barb.  341. 

(/J )  In  this  case  the  whole  subject  was 
fully  and  ably  examined  by  Parker,  J., 
and  the  court  came  to  the  following  con- 
clusions, which  the  American  Editor  of 
Chitty  on  Contracts  regards  as  "mani- 
festly just  and  sensible."  1.  Wliere  a 
party  undertakes  to  pay,  upon  a  sj>ccial 
contract  for  the  performance  of  labor,  he 
is  not  liable  to  be  charged  upon  such 
special  contract  until  the  money  is  earned 
according  to  the  terms  of  the  agreement ; 
and  where  the  pai-ties  have-  made  an  ex- 
press agreement,  the  law  will  not  imply 
and  raise  an  agreement  different  from  that 
which  the  parties  have  entered  into,  ex- 
cept upon  some  further  transaction  be- 
tween them.  2.  In  case  of  a  failure  to 
perform  such  special  contract,  by  default 
of  the  party  contracting  to  do  the  service, 
if  the  money  is  not  due  by  the  terms  of 
the  special  agreement,  and  the  nature  of 
the  contract  is  such  that  tlie  employer  can 
reject  what  has  been  done,  and  refuse  to 
receive  any  benefit  from  the  part  ])erform- 
ance,  he  is  entitled  to  do  so,  unless  he  has 
before  assented  to  and  accepted  of  what 
has  been  done,  and  in  such  case  the  party 
performing  the  labor  is  not  entitled  to  re- 


CH.  IX.] 


HIRING   OF   PERSOXS. 


*52o-*526 


sists  the  whole  doctrine  of  these  cases,  and  jiermits  the  *servant 
to  recover  on  a  quantum  meruit.  His  right  to  recover  is  care- 
fully guarded  in  this  case  by  principles  which  seem  to  protect 
the  master  from  all  wrong ;  and  to  require  of  him  only  such 
payment  as  is  justly  due  for  benefits  received  and  retained,  and 
after  all  deduction  for  any  damage  he  may  have  sustained  from 
the  breach  of  the  contract.  So  guarded,  it  might  seem  that  the 
principles  of  this  case  are  better  adapted  to  do  adequate  justice 
to  both  parties,  and  WTong  to  neither,  than  those  of  the  numer- 
ous cases  which  rest  upon  the  somewhat  technical  rule  of  the 
entirety  of  the  contract.  It  is  certain,  however,  that,  since  this 
case  was  reported,  the  *same  question  has  been  again  consid- 
ered in  other  courts,  and  decided  in  conformity  with  the  earlier 
decisions,  {q) 


cover,  however  much  he  may  have  done. 
3.  But  if,  upon  a.  contract  of  such  a  char- 
acter, *a  party  actually  receives  useful 
labor,  and  thereby  derives  a  benefit  and 
advantage,  over  and  above  the  damage 
which  has  resulted  from  the  breach  of  the 
contract  by  the  other  party,  the  labor  act- 
ually done  and  the  value  received  furnish 
a  new  consideration,  and  the  la\V  there- 
upon raises  a  promise  to  pay  to  the  extent 
of  the  reasonable  worth  of  the  excess. 
And  the  rule  is  the  same,  whether  the 
labor  was  received  and  accepted  l)y  the 
assent  of  the  party  prior  to  the  breach,  and 
under  a  contract  by  which,  from  its  na- 
ture, the  party  was  to  receive  tlie  labor 
from  time  to  time  until  the  completion  of 
the  wliole  contract,  or  whether  it  was  re- 
ceived and  accepted  by  an  assent  subse- 
quent to  the  performance  of  all  that  was  in 
fact  done.  4.  In  case  such  contract  is 
broken,  by  the  f\mlt  of  the  party  employed, 
after  part  performance  has  been  received, 
the  employer  is  entitled,  if  he  so  elect,  to 
put  the  breach  of  contract  in  defence  for 
the  j)urpose  of  reducing  the  damages,  or 
showing  that  nothing  is  due,  and  the  bene- 
fit for  which  he  is  liable  to  be  charged,  in 
that  case,  is  the  amount  of  value  wliich  he 
has  received,  if  any,  beyond  the  amount 
of  damage,  and  the  imjjlicd  [iromise  which 
the  law  will  raise  is  to  jiay  such  amount  of 
the  stipulated  price  for  tiie  wlioIe  labor  as 
remains,  after  deducting  wliat  it  would 
cost  to  procure  a  completion  of  the  whole 
service,  and  also  any  damage  which  has 
been  sustained  by  reason  of  the  nun-fulfil- 


ment of  the  contract.  5.  If  in  such  case 
it  be  found  that  the  damages  are  equal  to 
or  greater  than  the  amount  of  the  value  of 
the  labor  performed,  so  that  the  employer, 
having  a  right  to  tiie  performance  of  the 
whole  contract,  lias  not,  upon  the  whole 
case,  received  a  beneficial  service,  the 
plaintitf  cannot  recover.  6.  If  the  em- 
ployer elects  to  permit  himself  to  be 
charged  for  the  value  of  the  labor,  without 
interposing  the  damages  in  defence,  he  is 
entitled  to  do  so,  and  may  have  an  action 
to  recover  his  damages  for  the  non-per- 
fonnance  of  the  contract.  7.  If  he  elects 
to  have  the  damages  considered  in  the 
action  against  him,  he  must  be  understood 
as  conceding  that  they  are  not  to  be  ex- 
tended beyond  the  amount  of  what  he  has 
received,  and  he  cannot  therefore  after- 
wards sustain  an  action  for  further  dam- 
ages. 

{([)  The  case  of  Britton  r.  Turner  was 
cited  and  alluded  to  by  the  court,  in  giving 
the  opinion,  in  the  subsecjuent  cjisc  of 
Olmstead  v.  Beale,  19  Pick.  529,  but 
Morion,  3.,  wlio  there  delivered  the  opinion 
of  the  court,  said  :  "  We  have  no  hesi- 
tancy in  adhering  to  our  own  decisions, 
supported  as  they  are  by  principle,  and  a 
long  scries  of  adjudications."  On  the 
other  hand,  the  jirinciples  of  Britton  v. 
Turner  were  clearly  ap|)rovcd  by  Iknnett, 
J.,  in  delivering  the  ojiinion  of  Fenton  i-. 
Clark,  1 1  Verm.  560.  The  Court  of  Ver- 
mont seems  in  other  cases  inclined  to  con- 
strue all  entire  contracts  of  labor  and  ser- 
vice equitably  for  the  laborer,  and  to  hold, 

[001] 


527' 


THE   LAW    OF    CONTRACTS. 


[book  III. 


On  the  same  principle  of  entirety  of  contract,  it  is  held  that 
if  a  servant  is  discharged  for  misconduct  during  the  currency  of 
a  quarter,  he  is  entitled  to  no  wages  from  the  beginning  of 
that  quarter,  although  he  did  not  misbehave  until  the  day  when 
discharged,  (r)  But  if  the  contract  be  dissolved  by  mutual  con- 
sent, he  may  recover  wages  pro  rata,  without  any  express  con- 
tract to  that  effect,  {s)  and  so  he  may  if  he  leave  for  justifiable 
cause,  [ss)  If  a  justifiable  cause  for  dismissal  exists,  he  cannot 
recover,  although  not  dismissed  expressly  on  that  ground,  [t) 
and  even  although  the  master  did  not  know  of  its  existence  at 
the  time,  [tt)  And  if  the  servant,  by  his  misconduct,  forfeits 
his  claim  for  wages,  a  subsequent  promise  of  the  master  to  pay 
the  wages  has  been  said  to  be  void  for  want  of  considera- 
tion, {u) 

*Where  the  servant  is  wrongfully  dismissed  during  a  quarter, 
or  other  definite  term,  he  may,  after  the  quarter  or  term  ends, 


where  the  employer  has  received  benefit 
from  the  servant's  labor,  and  the  parties 
cannot  be  placed  in  statu  quo,  that  the  em- 
ployer is  liable  on  a  quantum  meruit  for  the 
labor  actually  performed,  although  the 
contract  was  not  peiformed  exucthj  as 
agreed.  See  Gilnian  v.  Hall,  11  Verm. 
510;  and  Blood  v.  Enos,  12  Verm.  625. 
See  n.  (o),  p.  524,  and  also  u.  [l],  p. 
522. 

(r)  Atkin  v.  Acton,  4  C.  &  P.  208 ; 
Ridgway  v.  Hungerford  Market  Co.  3  Ad. 
&  El.  171  ;  Turner  v.  Robinsons,  6  C.  & 
P.  15,  2  N.  &  M.  829.  See  also.  Spots- 
wood  V.  Barrow,  5  Exch.  110  ;  and  Lush 
V.  Russell,  5  id.  203. 

(s)  Thomas  v.  Williams,  1  Ad.  &  El. 
685  ;  Hill  v.  Green,  4  Pick.  114.  Whether 
the  contract  has  been  rescinded  is  a  ([ues- 
tion  for  the  jury.  Lamburn  o.  Cruden,  2 
M.  &  G.  253.  In  this  case  a  servant  was 
engaged  at  a  yearly  salary,  J)ayable  quar- 
terly. A  month  after  the  termination  of 
one  of  the  years  of  the  service  the  servant 
tendered  his  resignation.  After  another 
month  the  resignation  was  accepted,  noth- 
ing being  said  about  remuneration  for  the 
time  elapsed  since  the  tennination  of  the 
last  year's  service.  It  was  held  that  the 
law  implied  no  engagement  to  pay  for  the 
services  performed  since  the  last  quarter ; 
but  that,  under  the  circumstances  of  this 
case,  it  onglit  to  have  liecn  left  to  the  jury 
to  say  whether  the  parties  had  come  to  an 

[552] 


agreement  that  those  services  should  be 
paid  for. 

(ss)  Patterson  v.  Gage,  23  Verm.  558  ; 
Prichard  v.  Martin,  27  Miss.  305.  And 
where  the  contract  was  dissolved  by  au- 
thority of  the  State  (the  employee  being 
sent  away  under  a  statute  as  a  witness  in 
a  criminal  case)  it  was  held  that  the  hirer 
was  bound  to  pay,  and  only  to  pay  pro 
rata  wages  for  the  time  in  which  the  ser- 
vant Vvas  actually  in  his  employ.  Melville 
V.  De  Wolf,  30  E.  L.  &  E.  323. 

[t)  Ridgway  v.  Hungerford  Market  Co. 
3  Ad.  &  El.  171  ;  Cussons  v.  Skinner,  11 
U.  &  W.  161  ;  Baillie  v.  Kell,  4  Bing.  N. 
C.  638.  See  also,  Mercer  v.  Whall,  5  Q. 
B.  457,  Lord  Dcnman. 

[tt)  Spotswood  V.  BaiTow,  5  Exch. 
110;  Willets  v.  Green,  3  Car.  &  Kir.  59. 

{u)  This  point  was  decided  in  the  case 
of  Jlockman  v.  Shepherdson,  3  P.  &  D. 
182.  But  it  is  to  be  observed  that  in  that 
case  there  was  an  express  agreement  be- 
tween the  parties,  that  if  the  servant 
should  get  drunk  any  time  during  the  ser- 
vice, he  should  forfeit  all  his  wages  up  to 
that  time.  The  case  of  Seaver  v.  Morse, 
20  Verm.  620,  is  an  autliority  for  holding 
that  a  forfeiture  of  wages,  incurred  by  a 
fiiilure  to  perform  an  entire  contract,  is 
waived  by  a  subsequent  promise  of  the 
employer  to  pay  such  wages,  although  the 
promise  is  made  without  any  new  con- 
sideration.    See  also,  ante,  p.  522,  n.  (/). 


en.  IX.] 


HIRING   OF   PERSONS. 


*528 


recover  for  the  whole,  in  an  action,  not  for  work  and  labor,  but 
for  preventing  him  from  doing  his  work,  (v) 

It  should  seem  from  the  decisions  that  a  master  is  not  bound 
to  provide  medical  attendance  or  medicines  for  his  farm  ser- 
vant, or  his  house  servant,  in  case  of  illness;  even  if  this  be 
caused  by  an  accident  occurring  while  he  was  in  the  discharge 
of  his  duty,  (iv)  But  it  is  also  held  that  if  he  does  send  for  a 
physician  he  is  not  only  liable  himself,  but  cannot  deduct  the 
charge  from  the  wages  of  the  servant  without  an  express  agree- 
ment to  that  effect,  (x)     The  master  is  bound  *to  take  proper 


(v)  The  earlier  cases  seem  to  have  al- 
lowed a  recovery  in  such  case,  on  a  com- 
mon count  for  work  and  labor  done.  Gan- 
(lall  V.  Pontignj,  4  Camp.  .'J75 ;  Eardly  v. 
Price,  5  B.  &  F.  333 ;  Smith  v.  Kings- 
ford,  3  Scott,  279 ;  Collins  i-.  Price,  2  M. 

6  P.  233.  But  the  more  recent  authori- 
ties have  established  the  better  pnnci|)le, 
that  the  balance  due  for  work  actually 
performed,  at  the  time  of  such  wrongful 
dismissal,  may  be  recovered  on  the  com- 
mon counts,  while  there  must  be  a  special 
count  for  the  amount  of  the  month's 
wages,  which  has  not  been  earned  ;  or,  to 
speak  more  coiTcctly,  for  the  recovery  of 
damages  for  the  wrongful  dismissal,  a 
month's  wages  iK-ing  tlie  measure  of  dam- 
ages for  such  breach  of  contract.  See 
Arciiard  i-.  Homer,  3  C.  &  P.  349  ;  Few- 
ings  V.  Tisdal,  1  Exch.  295  ;  Broxham  v. 
Wagstaffe,  5  Jur.  845  ;  Smith  r.  Havward, 

7  Ad.  &  El.  544;  Hulle  v.  Ilcightinan,  2 
East,  145.  See  Lilley  i-.  Elwin,  H  Q.  B. 
755.  In  such  case  the  wages  due  at  the 
time  of  dismissal  cannot  be  recovered 
under  such  special  count ;  there  must  be  a 
count  for  work  and  labor  done  ;  and  these 
may  be  joined  in  the  same  (leclaration. 
Haltlcy  r.  Ilarman,  11  Ad.  &  El.  798. 
But  see  Goodman  v.  Pocock,  15  Q.  B. 
576.     See  aUo,  antp,  p.  520,  n.  (  /). 

(«')  The  contrary'  opinion  was  once 
declared  l)y  Lord  Kcuijon,  in  Scarman  v. 
Castdl,  1  Esp.  270,  but  this  doctrine  has 
long  since  been  overruled.  See  Sellen  v. 
Norman,  4  C.  &  P.  80  ;  Cooper  v.  Phil- 
lips, id.  581.  In  Dunbar  v.  Williams,  10 
Johns.  249,  it  is  said  that  no  action  lies 
by  a  physician  for  medicine  administered 
to,  and  attenilance  on,  a  alare,  without  the 
knowledge  or  request  of  tiie  master,  in  a 
ca.se  not  requiring  instant  and  immediate 
assistance.     But,  it  seems,  that  if  medical 

VOL.  I.  47 


or  other  assistance  be  rendered  to  a  slave, 
in  case  of  such  pressing  necessity  as  not 
to  admit  of  a  previous  application  to  the 
master,  the  person  rendering  the  assist- 
ance would  be  entitled  to  recover  a  com- 
pensation from  the  master  on  the  implied 
assumpsit,  arising  from  the  legal  obligation 
of  the  master,  to  make  the  requisite  pro- 
vision for  his  slave.  And  in  England  a 
master  is  liable  to  provide  medical  attend- 
ance for  his  apprentice.  Regina  v.  Smith. 
8  C.  &  P.  153. 

(.r)  Sellen  v.  Xorman,  4  C.  &  P.  80  ; 
Emmons  v.  Lord,  18  Maine,  351.  It 
would  seem  that  he  cannot  deduct  the 
servant's  wages  during  the  time  he  was 
sick  and  unable  to  work.  Story  on  Cont. 
§  962,  /,  k,  and  cases  cited.  In  Nichols 
V.  Coolahan,  10  Met.  449,  a  contract  was 
made  by  N.  &  C.  that  N.  should  have 
eleven  dollars  per  month  and  board,  so 
long  as  he  should  work  for  C,  C.  inform- 
ing N.  that  he  (C.)  might  not  have  two 
days  work  for  him.  N.  worked  for  C. 
several  months,  and  brought  an  action  for 
his  wages,  and  annexed  to  his  writ  a  bill 
of  particulars,  in  which  he  charged  the 
price  agreed  on  per  montli,  and  gave  C 
credit  for  a  certain  sum  on  account  of 
three  weeks  sickness  of  N.,  during  which 
time  he  was  unable  to  work.  C.  fded  in 
set-off  an  account  against  N.  for  board 
during  his  sickness ;  it  was  held  that  the 
contract  was  a  hiring  by  the  month,  that 
C.  was  not  entitled  to  payment  for  N.'s 
board  during  his  sickness ;  but  that  N. 
could  not  recover  wages  for  any  part  of 
the  time  of  his  detention  from  work  by 
sickness.  "  Another  (juestion,"  I/ulAiard, 
J.,  remarked,  "  might  have  Iieen  raised 
on  this  contract,  namely,  wluthiT  tlic 
plaintiff  might  not  have  been  entitled  to 
pavmcnt  for  his  whole  time  ;  but  by  crcd- 

[553] 


528- 


THE   LAW   OF   CONTRACTS. 


[book   III. 


care  of  his  servant,  and  not  expose  him  to  clanger,  (t/)  but  he  is 
not  responsible  for  an  accident  happening  in  the  course  of  his 
service,  unless  the  master  knew  that  it  exposed  the  servant  to 
peculiar  danger,  and  the  servant  did  not.  (z) 

It  has  been  held  that  a  master  who  uses  due  care  in  the  selec- 
tion and  employment  of  his  servants,  is  not  responsible  to  one 
of  them  for  an  injury  received  from  the  carelessness  of  another 
while  employed  in  the  master's  service,  (zz)  But  if  the  master 
has  a  general  manager  who  employs  the  servants,  standing  in 
the  place  of  the  master,  he  is  to  be  treated  as  the  a^ent  of  the 
master,  and  not  as  a  co-servant,  and  if  he  does  not  hire  careful 


iting  the  loss  of  time  he  has  precludecl 
that  inquiry,  and  is  propei'ly  bound  by 
his  admission."  Nor,  without  a  specific 
agreement  to  that  effect,  can  the  master 
deduct  the  value  of  articles  injured  or  lost 
by  the  servant ;  but  must  bring  a  cross 
action  .therefor.  Le  Loir  v.  Bristow,  4 
Camp.  134.  But  see  Snell  w.  The  Inde- 
pendence, Gilpin,  40  ;  The  New  Phanix, 
2  Hagg.  Adm.  420.  If  the  servant  is 
an  infant,  the  master  may  deduct  from 
his  wages  such  sums  as  he  has  paid  for 
the  infant's  necessaries,  but  no  other. 
Hedgley  v.  Holt,  4  C.  &  P.  104.  In  this 
case,  Bai/Jey,  J.,  said :  "Payments  made 
on  account  of  wages  due  to  an  infant,  for 
necessaries,  and  wliich  could  not  be 
avoided,  are  valid  payments  ;  but  an  in- 
fant cannot  bind  herself  for  things  which 
are  not  necessary  ;  iildeed,  even  the  state- 
ment of  an  account  does  not  bind  an 
infixnt.  It  appears  that  this  young 
woman  was  under  age  when  she  settled 
the  account.  The  consequences  might 
be  very  injurious  if  tlie  law  were  othei'- 
wisc.  Wluit  would  it  lead  to  in  this  very 
case  1  Here  is  a  female,  who  is  described 
as  rather  a  showy  woman,  suffered  to  dress 
in  a  manner  quite  unfitted  for  her  station  ; 
and  at  the  end  of  her  twelve  months'  ser- 
vitude she  would  not  have  a  farthing  in 
her  pocket."  In  Adams  v.  The  Woon- 
socket  Company,  11  Met.  327,  a  father, 
whose  minor  daugliter  was  employed  by  a 
manufacturing  company,  at  a  distance  of 
many  miles  from  his  residence,  forbade 
them  to  employ  her  any  further,  and  gave 
them  notice  that  if  they  should  continue 
to  employ  her,  he  should  demand  $3.50 
per  week  for  her  time  and  labor,  without 
any  deduction  on  any  account  whatever, 

[554] 


and  also  directed  them  not  to  pay  or 
allow  her  any  thing,  either  goods  or 
money,  on  account  of  lier  labor.  It  was 
held,  in  an  action  of  assumpsit  by  the 
father  against  the  company,  to  recover  pay 
for  his  daughter's  labor,  subsequently 
done  for  them,  that  he  was  entitled  to 
recover  only  as  much  as  her  labor  was 
reasonably  worth,  deducting  the  price  of 
board  provided  for  her  by  them,  without 
any  deduction  for  clothing  which  they 
provided  for  her. 

(ij)  In  Priestley  v.  Fowler,  3  M.  &  W. 
1 ,  Lord  ^6/«rjfer  saj'S  this  should  be  such 
care  as  the  master  may  reasonably  be  ex- 
pected to  take  of  himself.  And  see  Pat- 
erson  v.  AVallace,  28  E.  L.  &  E.  48. 

(s)  Priestley  v.  Fowler,  3  M.  &  W.  1. 

(zz)  Farweil  v.  Boston  &  Worcester  R. 
R.  Co.  4  Mete.  49  ;  Priestley  v.  Fowler,  3 
M.  &  W.  1  ;  Brown  v.  Maxwell,  6  Hill, 
594  ;  Hutchinson  v.  York,  Newcastle,  and 
Berwick  Railway  Co.  5  Exch.  343  ;  Wig- 
more  V.  Jay,  id.  354 ;  Hubgh  v.  New  Or- 
leans Railroad,  G  Louis.  Ann.  495  ;  Ryan 
V.  The  Curab.  Valley  Railroad  Co.  23 
Penn.  St.  Rep.  384;  Coon  v.  Syracuse  & 
Utica  Railroad,  1  Seld.  493  ;  Sherman  v. 
Rochester  &  Syracuse  Railroad,  15  Barb. 
574 ;  Albro  v.  Agawam  Canal  Co.  6 
Cush.  75  ;  Shields  v.  Yonge,  15  Geo.  349  ; 
Mitchell  V.  Penn.  R.  R.  Co.,  Amcr.  Law 
Register,  Oct.  1853,  p.  717;  Honner  v. 
Illinois  Central  Railroad  Co.  15  111.  550; 
Contra,  Little  Miami  Railroad  Co.  v. 
Stevens,  20  Ohio,  415  ;  Cleaveland,  Co- 
lumb.  &  Cincin.  R.  R.  Co.  v.  Kearny,  3 
Ohio  State  Reps.  201,  and  the  Scotch  case 
of  Dixon  V.  Ranken,  20  Law  Times  Rep. 
44. 


CH.  IX.]  HIRING   OF   PERSONS.  *529 

servants  the  master  is  liable  as  if  he  hired  improper  servants 
himself,  (za) 

The  master  is  under  no  legal  obligation  to  give  a  testimo- 
nial of  character  to  his  servant.  If  he  does,  it  will  be  presumed 
that  he  speaks  the  truth,  or  what  he  believes  to  be  true ;  and 
therefore  if  he  says  what  injures  the  standing  and  prospects  of 
the  servant,  and  this  turns  out  not  to  be  true,  the  master  is 
nevertheless  not  liable,  unless  the  servant  can  prove  that  the 
falsity  was  uttered  in  malice,  (a)  Such  is  the  English  rule  ; 
but  it  may  be  supposed  that  in  this  country,  if  the  master  is 
proved  to  have  said  what  is  untrue,  he  would  be  responsible  for 
any  injury  arising  therefrom  to  the  servant;  at  least  unless  he. 
could  satisfy  the  jury  that  he  did  not  speak  from  malice. 

In  order  to  constitute  a  contract  of  hiring  and  service  there 
must  be  a  mutual  engagement,  on  the  one  part  to  serve,  and 
*on  the  other  to  employ  and  pay.  (b)  But  these  engagements 
cannot  always  be  implied  one  from  the  other,  or  measured  one 
by  the  other.  If  a  servant  agrees  to  serve  for  a  term  of  two 
years,  and  the  master  only  agrees  to  pay  so  much  weekly,  the 
master  is  under  no  obligation  to  keep  or  employ  him  during  the 
two  years,  but  only  to  pay  so  much  while  he  does  employ 
him.  (c)     But  where  the  contracts  are  mutual,  and  cover  the 


(za)  Walker  v.  Boiling,  22  Ala.  294.  avoidable  cause,)  to  do  a  full  day's  work 

(a)  Rogers  r.  Clifion,  3  B.  &  V.  .'391  ;  on  every  working  day.    Hi  Id,  that  tlic  de- 

Edmonson  v.  Stephenson,  Bull.  N.  P.  8;  fcndant  was  not  obliged  by  this  contract  to 

Weatherston  v.  Hawkins,  1  T.  B.  110.  employ  plaintift"at  reasonable  times  for  a 

(/;)  Sec  Sykcs  v.  Dixon,  9  Ad.  &  El.  reasonable  number  of  working  days  dur- 
G93,  where  B.  contracted  in  writing  to  ing  the  term.  So  in  Aspdin  v.  Austin,  5 
work  for  plaintifl"  in  his  trade,  and  for  no  Q.  B.  671,  by  an  agreement  between 
other  i)crs()n,  during  twelve  months,  and  plaintiff  and  defendant,  jilaintiff  agreed  to 
so  on  from  twelve  months  to  twelve  manufacture  for  defendant  cement  of  a 
months,  until  B.  should  give  notice  of  certain  quality,  and  defendant,  on  condi- 
quitting.  Jlchl,  that  such  agreement  was  tion  of  plaintiff's  j)erforming  such  engage- 
invalid  imder  the  statute  of  frauds,  for  ment,  ])romised  to  J'ay  him  .£4  weekly- 
want  of  mutuality.  during  the  two  years  following  the  date  of 

{(•)  Thus  in  Williamson  v.  Taylor,  5  Q.  the  agreement,  and  £5  weekly  during  the 
B.  17.5,  by  an  agreement  between  defend-  year  next  following,  and  also  to  receive 
ant  and  plaintiff",  defendant,  lieing  the  him  into  partnership  as  a  manufacturer  of 
owner  of  a  colliery,  retained  and  hired  cement  at  the  ex))iration  of  three  years  ; 
])laintiffto  hew,  work,  &e.,  at  the  colliery,  and  plaintiff  engaged  to  instruct  defendant 
fur  wages  at  certain  rates  in  pro])ortion  to  in  tiie  art  of  manufacturing  cement.  Each 
the  work  done,  ])ayaljlc  once  a  fortnight ;  party  bound  himself  in  a  penal  sum  to 
and  plaintiff  agreed  to  continue  defend-  i'ullil  tlie  agreement.  Defendant  after- 
ant's  servant  during  all  times  the  jiit  wards  covenanted  by  deed  fur  the  pertbrm- 
should  be  laid  otV  work,  and,  when  re-  ance  of  the  agreement  on  his  ]):irt.  llfld, 
quired,    (except  when  prevented  by  un-  that  tlic  stipulations  in  tlie  agreement  did 

[5oo] 


529- 


THE   LAW   OF   CONTRACTS. 


[book   III. 


same  ground,  for  both  parties,  then  the  master  has  at  once  a 
right  to  require  the  servant  to  enter  upon  the  discharge  of  his 
duty  during  the  term,  and  the  servant  has  a  right  to  require  the 
master  to  employ  him  during  the  whole  of  the  term. 

Like  other  agreements,  a  contract  for  labor  and  service,  if  not 
to  be  performed  within  a  year  is  within  the  statute  of  frauds, 
and  if  by  parol,  is  wholly  void,  (cc)  And  if  the  contract  of 
service  is  begun  within  a  year  from  the  making  of  it,  but  is 
not  by  the  terms  of  the  agreement  to  be  completed  within  that 
time,  it  is  within  the  statute  and  void,  (cd)  It  must  be  certain, 
however,  from  the  terms  of  the  contract,  or  be  necessarily  im- 
,  plied  therefrom,  that  the  contract  cannot  be  performed  within  a 
year,  or  it  will  not  be  void,  (ce)     This  subject  will  be,  however, 


not  raise  an  implied  covenant  that  defend- 
ant should  employ  plaintiff'  in  the  business 
during  three  or  two  years,  though  defend- 
ant was  bound  by  the  express  words  to 
pay  plaintiff"  the  stipulated  wages  dur- 
ing those  periods  respectively,  if  plaintiff" 
performed,  or  was  ready  to  perform,  the 
condition  precedent  on  his  part.  See  also, 
Dunn  V.  Sayles,  5  Q.  B.  685  ;  Pilkington 
V.  Scott,  15  M.  &  W.  657;  Elderton  v. 
Emmens,  6  Com.  Bench,  160;  Rust  v. 
Nottidge,  16  E.  L.  &  E.  170;  Regina  v. 
Welch,  20  E.  L.  &  E.  82. 

{cc)  Bracegirdle  v.  Heald,  1  B.  &  Aid. 
722.  In  this  case  the  contract  was  by 
parol  on  the  27  th  May,  for  a  year's  service 
from  the  SOtli  of  June  following,  and  was 
held  void.  See  also,  Snelling  v.  Lord 
Huntingfield,  1  Cr.  M.  &  R.  20  ;  Hinckley 
V.  Southgate,  11  Verm.  428;  Tuttle  v. 
Swett,  31  Maine,  555. 

(cd)  Idem;  and  see  Pitcher  ?•.  Wilson, 
5  Missouri,  46;  Drummond  v.  Burrell,  13 
Wend.  307  ;  Squire  i'.  Whipple,  1  Verm. 
69  ;  Birch  v.  Earl  of  Liverpool,  9  B.  & 
Cr.  392. 

(ce)  A  parol  agreement  to  labor  for  a 
company  "  for  the  term  of  five  ye.ars,  or 
so  long  as  A,  shall  continue  to  be  ar/ent  of  the 
companj/,"  is  not  void  under  the  statute, 
as  it  mi(/ht  have  been  completed  within  a 
year,  although  in  some  contingencies  it 
miglit  extend  beyond  a  year.  Roberts  r. 
Rockbottom  Company,  7  Met.  47.  — This 
construction  of  the  statute  is  supported 
also  by  the  cases  of  Kent  v.  Kent,  18 
Pick  569;  Peters  v.  Wcstborough,  19 
Pick.  364 ;  Wells  v.  Horton,  4  Biiig.  40. 
—  In  Broadwell  v.  Getman,  2  Denio,  87, 

[556] 


it  was  held  that  a  parol  agreement  which 
is  not  wholly  to  be  performed  within  one 
year,  is  void,  though  some  of  the  stipula- 
tions are  to  be  executed  within  the  year. 
And,  semhle  per  Beardsley,  J.,  it  is  void 
although  one  of  the  parties  is  to  perform 
every  thing  on  his  part  within  the  year,  if 
a  longer  time  than  a  j^ear  is  sti))ulated  for 
the  performance  by  the  other.  But  in 
Cherry  v.  Ileming,  4  Exch.  631,  it  was 
held  (affirming  Donellan  v.  Read,  3  B. 
&  Ad.  899,)  that  in  the  4th  section  of  the 
Statute  of  Frauds  the  words,  "  not  to  be 
performed  within  the  space  of  one  year," 
mean,  "  not  to  be  performed  on  either  side," 
and  that  the  rontract  in  question  having 
been  performed  on  one  side  within  a  year 
from  the  making  thereof,  the  case  was  not 
within  the  statute.  —  So  in  Hcrrin  v.  But- 
ters, 20  Maine,  119,  the  law  on  this  sub- 
ject is  thus  laid  down  ;  where  by  the  terms 
of  a  contract  the  time  of  its  performance 
was  to  be  extended  beyond  a  year,  it  is 
within  the  statute  of  frauds,  tb.ough  a  part 
of  it  was  by  the  agreement  to  be  performed 
within  a  year.  To  bring  a  case  within  the 
statute  of  frauds,  it  must  have  been  ex- 
pressly stijnilated  by  the  parties,  or  it 
must,  upon  a  reasonable  construction  of 
tlieir  contract,  appear  to  have  Ijeen  under- 
stood by  tliem,  that  the  contract  was  not 
to  be  performed  witliin  a  year.  A.  G.  B. 
contracted  in  writing  Avith  S.  to  clear 
eleven  acres  of  land  in  three  j-cars  from 
the  date  of  tlie  contract,  one  acre  to  be 
seeded  down  the  (then)  present  spring, 
one  acre  the  next  spring,  and  one  acre  the 
si)ring  following  ;  as  a  compensation  for 
whicli,  he,  A.  G.  B.,  was  to  have  all  the 


CII.  IX.] 


HIRESTG   OP   PEESONS. 


*530 


considered  more  fully  in  the  second  part  of  this  work  in  the 
chapter  upon  the  statute  of  frauds. 

A  nice  distinction  is  taken  in  some  cases  between  the  pre- 
sumptions which  arise  where  service  is  rendered  to  a  stranger, 
and  where  it  is  rendered  to  near  relations.  In  general,  where- 
ever  service  is  rendered  and  received,  a  contract  of  hiring,  or  an 
obligation  to  pay  will  be  presumed,  (d)  But  *it  is  said  not  to 
be  so  where  the  service  is  rendered  to  the  parent  or  uncle,  or 
other  near  relative  of  the  party,  on  the  ground  that  the  law  re- 
gards such  services  as  acts  of  gratuitous  kindness  and  affection. 


proceeds  of  said  land  three  years,  except 
the  two  acres  first  seeded  down.  A.  G.  B. 
assigned  verbally  Iiis  interest  to  the  extent 
of  lialf  the  contract,  to  II.,  who  verbally 
a.ssifincd  said  half  to  C.  B. ;  said  XL  &  C. 
B.  respectively  agreeing  verbally  to  per- 
form one  half  of  the  conti'act.  A.  G.  B. 
and  C.  B.  commence  the  performance  of 
contract,  but  do  not  complete  it.  S.  sues 
A.  G.  B.,  and  recovers  damages  for  non- 
performance, wliich  arc  paid  by  A.  G.  B. 
il.  being  called  n])on  by  A.  G.  B.  for  half 
of  the  damages  so  recovered  and  paid, 
pays  the  same  to  him  ;  and  then  com- 
mences a  suit  for  the  same  against  C.  B.  — 
it  was  lie/f/,  that  the  contract  between  them 
(II.  and  C.  B.)  was  void  by  the  statute  of 
frauds,  and  that  he  was  not  entitled  to  re- 
cover.—  Sec  also,  Kobcrts  r.  Tucker,  3 
Exch.  \i.  0.32. 

((/)  Phillips  r.  Jones,  1  Ad.  &  El.  333, 
Lord  Iktiman.  Sec  I'eacock  r.  Peacock,  2 
Cam|).  4.5;  Waterman  v.  Gilson,  .5  Louis. 
Ann.  ()72.  In  Newel  v.  Keith,  1 1  Verm. 
214,  it  is  said  that  if  personal  services  arc 
rendered  by  A  to  B  at  the  rcfpiest  of  the 
latter,  an  action  will  lie  for  them,  unless  it 
appears  from  the  wh(de  evidence  that  they 
were  designed  to  he  fjmtiiitotis  ;  and  this  is 
a  question  of  fact.  —  So  where  one  |)crson 
lias  by  fraud  induced  another  to  lalior  for 
a  third  person,  the  latter  may  still  be 
liable  for  the  work.  Lucas  v.  Godwin,  3 
Bing.  N.  C.  737.  In  Peter  v.  Steel,  3 
Ycates,  250,  it  was  hrld  that  assumpsit 
would  lie  in  favor  of  a  free  negro,  for 
work,  lal)or,  and  service,  against  a  person 
wlio  held  him  in  his  service,  claiming  liim 
as  a  slave.  Tiie  court  laid  down  the  gen- 
eral principle  that,  where  one  by  eompul- 
sion  does  work  for  another,  wlu)m  he  is 
under  no  legal  or  moral  obligation  to 
serve,  the   law   will    imi)ly   and   raise   .i 

47* 


promise  on  tlic  part  of  the  person  benefited 
thereby  to  make  him  a  reasonable  recom- 
pense. So  in  Iliggins  v.  Breen,  9  Mis- 
souri, 41)7,  it  was  held  that  where  a  mar- 
ried man  represents  himself  to  be  a 
widower,  and  thus  induces  a  woman  to 
marry  him,  his  wife  being  still  alive,  such 
woman  may  recover  of  him  for  her  ser- 
vices during  such  time  as  she  may  live 
with  him.  —  And  gcncrall}-  where  labor  is 
performed  for  the  benefit  of  another  without 
liis  express  request,  yet  if  he  knows  of  the 
work,  and  tacitly  assents  to  it,  an  implied 
promise  will  arise  to  pay  a  reasonable 
compensation.  James  v.  Bixby,  11  Mass. 
34  ;  Farmington  Academy  v.  Allen,  14 
Mass.  172.  So  where  one  employs  the 
slave  of  another,  the  law  implies  a  promise 
to  i)ay  the  master  for  tlic  services  of  the 
slave.'  Cook  v.  Ilustcd,  12  Johns.  188. 
So  of  an  apprentice.  Bowes  r.  Tibbetts, 
7  Greenl.  4.")7.  But  labor  and  service 
voluntarily  done  by  one  for  another,  with- 
out his  privity  or  consent,  however  meri- 
torious or  beneficial  it  may  be  to  him,  as  in 
saving  his  property  from  destruction  by- 
fire,  afibrds  no  grounds  for  an  action. 
Bartholomew  r.  Jackson,  20  Johns.  28. 
So  if  a  workman  be  employed  to  do  a  par- 
ticular job,  and  he  choose  to  perform  some 
additional  work  without  consulting  his 
enijiloyer,  he  cannot  recover  for  stub  addi- 
tional work.  Ilort  v.  Norton,  1  McCord, 
22.  Sec  also  an/f,  p.  391,  e^  sc*/.  Even  if 
it  is  agreed  between  the  jjartics  that  cer- 
tain work  shall  be  done  (jratuiloii.tli/,  such 
contract  is  nudum  /lartuiii,  and  the  |)arty  is 
not  bound  to  perform  it ;  although  it  is 
said  that  if  he  once  enter  upon  the  jier- 
formancc  of  such  contract,  he  is  bound  to 
complete  it.  Sec  Rutgers  r.  Lucct,  2 
Johns.  Cas.  92,  (2d  cd.)  and  note. 

[557] 


531^ 


THE   LAW    OF   CONTRACTS. 


[book  III. 


We  find  American  *authorities  which  recognize  this  distinc- 
tion, and  particularly  where  it  grows  out  of  the  relation  of  par- 
ent and  child,  (e)      But  if  a  destitute   person  is  received  from 


[e)  In  Andrus  iy.  Foster,  17  Verm.  556, 
it  was  held  that  where  a  daughter  con- 
tinues to  reside  in  the  family  of  her  father 
after  the  age  of  majority,  the  same  as  bc- 
foi'e,  the  law  implies  no  obligation  on  the 
part  of  her  father  to  pay  for  her  scn'ices. 
And  the  same  rule  applies  to  cases  where 
the  person  from  whom  the  compensation 
for  services  is  claimed  took  the  plaintiff 
into  his  family,  when  she  was  a  child,  to 
live  with  him  till  she  should  become  of 
age,  and  she  continues,  after  that  time,  to 
reside  in  his  family,  he  standing  vi  loco 
parentis  to  her.  If  she  claim  pay,  it  is  in- 
cumbent on  her  to  show  that  the  services 
were  performed  under  such  circumstances 
as  to  justify  an  expectation  on  the  part  of 
both  that  pccuniai-y  compensation  would 
be  required.  The  right  to  compensation 
for  services  in  such  cases  must  dejiend 
upon  the  circumstances  of  each  particular 
case.  See  also  Fitch  v.  Peckham,  16 
Verm.  150  ;  Weir  v.  Weir,  3  B.  Monroe, 
647  ;  Alfred  v.  Fitzjames,  3  Esp.  3.  In 
Guild  V.  Guild,  15  Pick.  130,  the  law  on 
this  point  is  thus  summed  up  by  S/iair,  C. 
J.:  "The  point  is,  whether,  where  a 
daughter,  after  arriving  at  twenty-one 
years  of  age,  being  unmarried,  continues 
to  reside  in  her  father's  family,  performing 
such  useful  services  as  it  is  customary  for 
a  daugliter  to  perform,  and  receiving  such 
protection,  subsistence,  and  supplies  of 
necessaries  and  comforts,  as  is  usual  for  a 
daughter  to  receive  in  a  father's  family, 
the  law  raises  any  presumption  that  she  is 
entitled  to  a  pecuniary  compensation  for 
such  services,  and  whetlier,  after  proving 
these  facts,  the  burden  of  proof  is  on  the 
defendant,  to  show  that  the  services  were 
performed  without  any  view  to  pecuniary 
compensation.  Some  of  the  court  are  of 
opinion  that  as  it  is  the  ordinary  presump- 
tion, between  strangers,  that  ujion  the  per- 
formance of  useful  and  valuable  services 
in  the  family  of  another,  it  is  upon  an  im- 
plied promise  to  pay  as  much  as  such 
services  are  reasonably  worth,  so,  after  the 
legal  period  of  emancipation,  the  law 
raises  a  similar  implied  promise  from  a 
fatlier  to  a  daughter.  Other  members  of 
the  court  are  of  opinion,  (confining  the 
opinion  to  the  case  of  daughters,  and  ex- 
pressing no  opinion  as  to  the  case  of  sons, 
laboring  on  the  farm  or  otherwise  in  the 

[558] 


service  of  a  father,)  that  the  prolonged 
residence  of  a  daughter  in  her  fsither's 
family  after  twenty-one,  performing  her 
shai-e  in  the  ordinary  labors  of  tlie  family, 
and  receiving  the  protection  and  supplies 
contemplated  in  the  supposed  ease,  may 
well  be  accounted  for,  upon  considerations 
of  mutual  kindness  and  good-will,  and 
mutual  comfort  and  convenience,  without 
presuming  that  there  was  any  understand- 
ing, or  any  expectation  that  pecuniary 
compensation  was  to  be  made  ;  that  proof 
of  these  fiicts  alone,  therefore,  docs  not 
raise  an  implied  promise  to  make  any 
pecuniary  compensation  for  such  services, 
or  throw  on  the  defendant  the  burden  of 
proof  to  show,  affirmatively,  that  the 
daughter  performed  the  service'^  gratui- 
tously, and  without  any  expectation  of  re- 
ceiving wages  or  pecuniary  compensation, 
but  with  a  view  to  the  share  she  might  hope 
to  i-eceive  in  her  father's  estate  or  other- 
wise." The  court  were  equally  divided 
on  this  question,  and  did  not  decide  it; 
but  they  were  imanimous  in  the  oi)inion 
that  in  all  such  cases  the  question  must  be 
determined  by  the  jury,  on  all  the  circum- 
stances, whether  there  was  an  implied  re- 
quest for  labor,  and  an  implied  promise  of 
repayment  or  not.  In  King  i\  Sow,  1  B. 
&  Aid.  179,  a  female  natural  child  was 
hired  for  a  year  by  the  wife  of  its  re])utcd 
father,  and  continued  doing  the  household 
work  for  three  years,  but  after  the  first 
year  no  wages  were  paid,  nor  was  there 
any  new  contract  of  hiring.  Uelcl,  that 
the  sessions  were  warranted  in  iinding 
that  after  that  time  she  did  not  continue 
on  the  terms  of  the  original  contract. 
And  Bai/k'>/,  J.,  said  :  "  Wiiere  the  parties 
are  not  related,  it  may  fairly  be  presumed 
from  a  continuance  in  the  service  that  the 
terms  on  which  they  continue  are  the  same 
as  during  the  preceding  year.  But  where 
the  relation  of  lather  and  child  sul)sists, 
the  ground  for  that  presumption  fails." 
See  to  the  same  effect  Dye  r.  Kerr,  15 
Barb.  444  ;  Kidgway  v.  English,  2  N. 
Jersey,  409 ;  Swires  v.  Parsons,  5  W.  & 
Serg.  357  ;  Defrance  v.  Austin,  9  Pcnn. 
309  ;  Steel  v.  Steel,  12  id.  G4  ;  Lantz  )•. 
Frey,  14  id.  201  ;  Zerbc  v.  Miller,  16  id. 
488";  Kesor  v.  Johnson,  1  Cart.  ( Ind.)  100  ; 
Hussev  V.  Koundtrce,  1  Busbce's  Law  K. 
110;  Partlow  v.  Cooke,  2  R.  I.  451.— 


d 


en.  IX,] 


IIIRIXG    OF   PERSONS. 


"522 


charity,  provided  with  necessaries  and  set  to  work,  he  is  under 
no  obligation  to  remain,  nor  has  he  any  claim  for  wages,  unless 
there  be  some  express  agreement,  or  one  may  be  implied  from 
the  peculiar  circumstances  of  the  case. 

A  person  who  seduces  a  servant  away  from  the  service  of  his 
master  or  employer,  is  liable  in  an  action  for  damages.  Al- 
though this  principle  has  been  less  positively  settled  by  *adjudi- 
cation  in  tliis  country  than  in  England,  we  have  no  doubt  of  it, 
as  a  rule  of  law.  (/) 

In  some  cases  very  liberal  presumption  of  payment  is  made 
in  favor  of  the  master ;  as  where  the  servant  has  left  his  master 
for  a  considerable  period;  and  where  it  is  usual  to  pay  wages 
weekly,  (g-) 


So  an  action  cannot  be  maintained  for 
services  ]iei-formed  with  a  view  to  a 
legacy,  and  not  in  expectation  of  a  re- 
ward in  the  nature  of  a  debt.  Sec  Osbom 
V.  Governors  of  Guy's  Hospital,  Strange, 
728  ;  Le  Sage  v.  Coussmakcr,  1  Esp.  188  ; 
Little  r.  Dawson,  4  Dall.  Ill  ;  Lee  r. 
Lee,  6  Gill  &  Johns.  309.  Nor  will  an 
action  for  work  and  labor  lie  for  services 
pcifornu'd  under  a  contract  of  apprentice- 
shi[)  whicii  before  the  expiration  of  tlic 
service  turns  out  to  be  void.  Maltby  v. 
Harwood,  12  Barb.  473.  But  where  one 
party  has  rendered  services  for  another, 
and  it  is  manifest  from  the  circumstances 
of  the  case  tiiat  it  was  understood  by  both 

Earties  that  compensation  should  be  made 
y  will,  (iinl  none  is  made,  an  action  will  lie 
to  recover  the  value  of  such  services. 
Martin  r.  Wright,  13  Wend.  460.  In 
Eaton  V.  Benton,  2  Hill,  576,  it  is  said 
that  one  who  has  served  another,  in  ex- 
pectation of  a  testamentary  provision,  and 
to  whom  tiie  latter  subsc(|uently  devises  a 
portion  of  his  estate,  cannot  maintain  a 
suit  for  such  services  against  the  execu- 
tors. The  general  rule  seems  to  be,  tliat 
a  legacy  left  iiy  a  del)tor  to  his  creditor, 
wliich  in  amount  is  equal  to  or  greater 
than  the  del  it,  sliall  be  presumed  to  be  in 
satisfaction  of  it. 

(/)  Lumlev  v.  Gyc,  20  E.  L.  &  E. 
168;  Keanc  v.  Boycott,  2  II.  Bi.  511  ; 
Hart  V.  Aldridge,  Cowp.  54.  Sec  also, 
Peters  r.  Lord,  18  Conn.  3.'!7  ;  Haight  v. 
Badgeley,  15  Barb.  499.  This  doctrine 
was  held  at  nisi  prius  by  Motion,  J.,  in  an 
interesting  case  in  Massaciiusctts,  a  few 


years  since.  So  one  is  lial)le  for  continu- 
ing to  employ  the  servant  of  another,  after 
notice,  although  tiie  defendant  did  not 
himself  procure  tiie  servant  to  leave  his 
fonner  master,  or  know  when  he  employed 
him,  that  he  was  the  servant  of  another. 
Blake  v.  Lanyon,  6  T.  R.  221 .  Although 
a  servant  is  hired  by  tiie  piece,  and  not 
for  any  certain  time,  yet  an  action  lies 
for  enticing  him  away.  Anon.  Lofft, 
493.  But  an  action  will  not  lie  for  in- 
ducing a  sen'ant  to  leave  liis  master's 
emjdoy  at  the  expiration  of  tlie  time  for 
whicli  lie  originally  iiircd  himself,  although 
the  servant  had  not  at  the  time  any  in- 
tention of  then  cpiitting  his  master. 
Nichol  V.  Martyn,  2  ICsp.  734.  The  con- 
tract of  hiring  between  the  servant  and 
liis  former  m;xstcr  must  have  been  binding, 
in  order  to  render  one  enticing  liim  away 
liable  therefor.  Sykes  v.  Dixon,  9  Ad.  & 
El.  693.  The  damages  in  this  action  arc 
not  such  as  the  master  sustained  at  the 
time,  but  such  as  he  would  naturally 
sustain  from  the  leaving  of  his  employ- 
ment. Gunter  v.  Astor,  4  Moore,  12  ; 
Dixon  V.  Bell,  1  Stark.  287.  See  Hays 
I'.  Borders,  1  Gilmun,  46 ;  McKay  v. 
Brvson,  5  Ired.  216. 

(<j)  See  Sellen  i-.  Norman,  4  C.  &  P. 
81  ;  Lucas  v.  Novosilieski,  1  Esp.  296  ; 
Evans  v.  Birch,  3  Camp.  10.  But  it  is 
no  evidence  of  payment  for  one  servant's 
labor  that  other  laborers  employed  by  the 
jtarty,  on  the  same  work,  at  the  same 
time,  were  duly  paid.  Filer  v.  I'eebles,  8 
New  Hamp.  226. 

[559] 


533*  THE   LAW    OF    CONTRACTS.  [bOOK  III. 


SECTION    II. 

APPRENTICES. 

The  English  law  of  apprenticeship  grew  out  of,  and  with 
nearly  all  its  incidents  rested  upon,  the  ancient  establishment 
of  guilds,  or  companies  for  trade  or  for  handicraft,  which  were 
once  almost  universal  throughout  Europe,  and  still  generally 
subsist,  although  much  modified  in  form  and  efiect.  No  one 
could  pursue  a  trade  or  mechanical  occupation,  on  his  own 
account,  who  was  not  a  member  of  such  guild  or  company. 
Nor  could  he  become  a  member  except  by  a  regular  apprentice- 
ship. Hence,  a  change  of  trade  became  very  difficult ;  and  the 
several  companies  provided  with  great  care  against  such  in- 
crease of  their  numbers  as  should  render  it  too  difficult  for  all 
to  find  occupation.  Under  such  circumstances,  to  enter  upon 
an  apprenticeship  which  led  to  such  membership  was  to  acquire 
a  support  for  life,  and  it  was  usual  to  pay  large  fees  to  the  mas- 
ter. This  custom  exists  in  England  now  very  generally.  In 
this  country  we  *suppose  it  to  occur  much  less  frequently  ;  and 
the  entire  freedom  of  employment,  and  the  absolute  right  which 
every  person  has  to  engage  in  what  business  he  pleases,  and  to 
change  his  business  as  often  as  he  pleases,  has  undoubtedly 
operated  to  make  apprenticeships  less  common  with  us  than  in 
Europe.  In  some  parts  of  our  country  they  are  comparatively 
infrequent;  and  perhaps  in  none  are  they  so  necessary  or  so 
universal  an  introduction  to  business  as  they  still  are  in  Eng- 
land. 

The  contract  of  apprenticeship  is  generally  in  writing,  and 
most  frequently  by  deed,  and  is  to  be  construed  and  enforced 
as  to  all  the  parties,  by  the  common  principles  of  the  law  of 
contracts.  Usually,  the  apprentice,  who  is  himself  a  minor, 
and  his  father  or  guardian  with  him,  covenant  that  he  shall 
serve  his  master  faithfully  during  the  term.  And  the  master 
covenants  that  he  will  teach  the  apprentice  his  trade,  and  sup- 
ply him  with  all  necessaries,  and  at  the  end  of  the  term  give 
[560] 


CH.  IX.] 


niRING    OF   PERSONS. 


*o34 


him  money  or  clothes.  And  in  case  of  sickness  he  is  bound  to 
provide  proper  medicines  and  attendance.  (/<)  At  common  law 
the  infant  is  not  himself  responsible,  being  a  minor ;  (i)  and 
therefore  an  adult  also  covenants  with  him  ;  and  at  the  age  of 
majority  the  infant  may  repudiate  the  contract  if  it  extends 
beyond  that  period. 

The  sickness  of  the  apprentice,  or  his  inability  to  learn  or  to 
serve,  without  his  fault,  does  not  discharge  the  master  *from  his 
covenants,  (j)  because  these  covenants  are  independent,  and  he 
takes  this  liability  on  himself.  Nor  will  such  misconduct  as 
would  authorize  a  master  to  discharge  a  common  servant,  dis- 
charge the  master  of  an  apprentice  from  his  liability  on  his 
contract,  (k)  But  if  the  apprentice  deserts  from  his  service,  and 
contracts  a  new  relation  which  disables  him  from  returning 
lawfully  to  his  master,  the  latter  is  not  bound  to  receive  him 
again  if  he  offers  to  return.  (/) 


(/()  Regina  v.  Smith,  8  C.  &  P.  153. 

(i)  Cumirifr  V.  Hill,  3  B.  &  Aid.  59. 
At  common  law,  an  indenture  of  appren- 
ticeship was  not  binding  upon  an  infant. 
See  Gylhcrt  r.  Fletcher,  Cro.  Car.  179; 
Jennings  r.  Pitman,  Hutton,  63  ;  Lylly's 
case,  7  Mod.  15 ;  jNIcDowlc's  case,  8 
Johns.  331  ;  Whitley  v.  Loftus,  8  Mod. 
191.  In  Woodruff'  v.  Logan,  1  Eng. 
[Ark.]  270,  it  was  said  that  a  contract  of 
ap])renticeship  was  binding  upon  an  in- 
fant, as  being  for  his  benefit ;  I)ut  this  is 
not  consistent  with  the  current  of  author- 
ity, or  the  analogy  of  the  law.  —  But  tlic 
father  might  be  liound  on  the  covenants  ; 
and  it  would  be  no  defence  to  an  action 
by  the  master  against  the  father,  for  the 
desertion  of  the  infant,  that  the  infant 
was  not  hound  by  tlic  indenture  ;  for  if 
the  son  does  not  choose  to  do  tliat  whicii 
the  father  covenanti.'d  lie  should  do,  the 
covenant  is  broken,  and  tiie  father  is 
liable.  Cuming  v.  Hill,  3  B.  &  Aid.  57. 
In  Hiatt  V.  Gilmer,  6  Ired.  45t>,  wiierc  a 
boy  was  bound  by  his  father  as  an  ap- 
prentice to  a  copartnership,  to  be  taught 
a  mechanical  trade,  and  the  father  took 
away  the  boy  before  his  time  was  expired, 
and  soon  afterwards  the  partnership  was 
dissolved,  the  period  of  apprenticcsiiip 
being  still  unexpired,  it  was  held  by  a 
majority  of  the  court,  liulfin,  C.  J.,  dis- 
senliiuj,  tiiat  the  persons  composing  the 
partnership  could  only  recover  damages 


for  the  loss  of  the  boy's  services  during 
the  time  the  copartnership  continued,  and 
not  afterwards. 

{j)  Rex  V.  De  Hales  Owen,  1  Str. 
99. 

(k)  Winstone  v.  Linn,  1  B.  &  C.  460. 
So  in  Wise  v.  Wilson,  1  C.  &  K.  602, 
it  was  held  that  a  person  has  a  right  to 
dismiss  a  scrvcDil  for  misconduct,  but  has 
no  right  to  turn  away  an  apprentice  be- 
cause he  misbehaves  ;  but  the  case  of  a 
young  man,  seventeen  years  old,  who, 
under  a  written  agreement  not  under  seal, 
is  ])laced  with  a  surgeon  as  "  jmpil.  and 
assistant,"  and  with  whom  a  premium  is 
paid,  is  a  case  between  that  of  a]ii)rcntice- 
ship  and  service;  and  if  such  a  jjcrson  on 
some  occasions  come  home  intoxicated, 
this  aJoue  will  not  justify  the  surgeon  in 
dismissing  him.  But  if  the  "  ]nipil  iind 
assistant,"  by  employing  the  shopboy  to 
compound  the  medicines,  occasion  real 
danger  to  the  surgeon's  practice,  this 
would  justify  the  surgeon  in  dismissing 
him.  And  Lord  Dciiman,  C.  J.,  in  sum- 
ming up,  said  :  "  There  is  a  great  dis- 
timtion  l)etwcen  a  contract  of  appren- 
ticeship, and  a  contract  with  a  servant. 
A  person  has  a  right  to  dismiss  a  servant 
for  misconduct,  but  has  no  rigiit  to  turn 
away  an  apprentice  because  he  misbe- 
haves." 

(I)  Hughes  1-.  Humphreys.  6  B.  &  C. 
680,  which  was  covenant   bv  the  father 

[501] 


535* 


THE   LAW    OF   CONTRACTS. 


[book  iir. 


The  parties  who  covenant  for  the  good  behavior  and  con- 
tinued service  of  the  apprentice  are  not  liable  for  trifling  mis- 
conduct ;  but  it  seems  by  the  English  cases  that,  for  whatever 
produces  substantial  injury  to  the  master,  as  long  continued 
absence,  repudiation  at  majority,  or  the  like,  they  are  liable,  (m) 
But  it  seems  not  to  be  so  in  this  country,  under  *our  common 
statutory  apprenticeships,  {71)   although  doubtless  phraseology 


of  an  apprentice  against  the  master,  for 
not  teaching  and  providing  for  the  ap- 
prentice. Plea,  that  np  to  a  certain 
time  defendant  did  teach,  &c.,  and  that 
then  the  apprentice,  without  leave,  quit- 
ted the  defendant's  service,  and  never 
returned.  Replication,  that  on,  &c.,  de- 
fendant refused  then,  or  ever,  to  receive 
back  the  apprentice,  and  thereby  dis- 
charged him  from  his  sei'vice.  Rejoin- 
der, that  tlie  apprentice  enlisted  as  a 
soldier,  and  that  plaintiff  never  request- 
ed defendant  to  receive  back  the  ap- 
prentice, when  he  was  able  to  return  to 
the  service.  SuiTCJoinder,  tliat  soon 
after  the  apprentice  enlisted,  defendant 
refused  then,  or  ever,  to  take  him  back, 
and  wholly  discharged  him  from  liis 
service.  Held,  on  demurrer,  that  the 
surrejoinder  was  bad,  not  being  a  suffi- 
cient answer  to  the  rejoinder,  and  that  tlie 
plea  was  good,  as  it  disclosed  a  sufficient 
excuse  for  non-performance  of  the  defend- 
ant's covenant. 

(//()  Wright  V.  Gihon,  3  C.  &  P.  583, 
where  it  was  Jwkl,  that  the  staying  out 
by  an  apprentice  on  a  Sunday  evening 
beyond  tlie  time  allowed  him,  is  not 
such  an  unlawful  absenting  of  liimself 
as  will  enable  his  master  to  maintain  an 
action  of  covenant  against  a  person  who 
became  bound  for  the  due  pefformancc 
of  the  indenture.  In  Cuming  v.  Hill,  3 
B.  &  Aid.  59,  the  action  was  covenant 
upon  an  indenture  of  apprenticeship,  by 
the  master  against  the  father  ;  the  breach 
assigned  was,  that  the  apprentice  ab- 
sented himself  from  the  service ;  plea, 
that  the  son  faitlifuUy  served  till  he 
came  of  age,  and  that  he  then  avoided 
the  indenture.  Held,  tliat  this  was  no 
answer  to  the  action.  Ahhott,  C.  J.,  said  : 
"  I  am  of  opinion  tliat  tlie  father  is  liable 
to  this  action.  He  covenants  that  the 
son  sliall  faitlifuUy  serve ;  the  avoidance 
of  the  apprenticeship  by  the  son  during 
the  term  cannot  discharge  the  father's 
covenant.     The  indenture  of  apprentice- 

[562] 


ship  has  existed  in  this  form  for  more 
than  a  century,  and  has  been  in  uni- 
versal use.  A  construction  has  been 
put  upon  the  instrument  in  a  court  of 
law,  in  the  case  cited  from  Douglas, 
(Branch  v.  Ewington,  Dong.  518).  I  do 
not  see  any  reason  to  doubt  the  pro- 
priety of  that  decision,  an<l  I  think, 
therefore,  upon  principle  as  well  as  upon 
authority,  that  the  defendant  is  answerable 
in  this  action."  Baijleij,  J.,  also  said  : 
"  I  may  bind  myself  tliat  A  B  shall  do 
an  act,  although  it  is  in  his  option 
whether  he  will  do  it  or  not.  The 
father  here  binds  himself  that  the  son 
shall  serve  seven  years.  It  is  no  answer 
in  an  action  brought  against  the  father, 
for  the  breach  of  that  covenant,  for  him 
to  say  that  it  was  in  the  option  of  the  son 
whether  he  would  serve  or  not.  If  the 
son  does  not  choose  to  do  tiiat  which  the 
fatlicr  covenanted  he  should  do,  the  cove- 
nant is  then  broken,  and  the  fiithcr  is 
liable."  —  It  seems  that  any  change  of 
trade  on  the  part  of  tlie  master  discharges 
the  father  from  his  obligation  that  the  son 
shall  continue  to  serve.  Ellen  v.  Topp,  4 
E.  L.  &  E.  412. 

[n)  Blunt  V.  Melcher,  2  Mass.  228, 
where  it  was  held  that  in  an  indenture  of 
ap[)renticcship  made  by  the  master,  the 
ajjprentice,  and  the  guardian  of  the  ap- 
prentice, the  covenants  that  "  the  ap- 
prentice shall  faithfully  serve  his  master," 
&c.,  are  not  the  covenants  of  the  guar- 
dian. And  Parker,  J.,  in  giving  his 
ojiinion,  observed :  "  The  question  for 
our  determination  is,  whether  the  de- 
fendant is  bound  by  the  covenants  in  this 
indenture  for  the  apprentice's  good  con- 
duct. My  opinion  is  decidedly  that  he 
is  not  bound.  He  is  not  mentioned  as  a 
party  to  those  or  any  other  covenants 
contained  in  tlie  instrument.  The  intent 
of  all  the  parties  in  making  this  inden- 
ture appears  from  the  instrument  itself. 
The  apprentice  binds  himself  with  the 
consent    of   his    guardian.     To    express 


en.  IX.] 


HIRING    OF   PERSONS. 


*536 


might  be  adopted  which  would  have  that  effect.  Where  the 
indenture  can  be  construed  as  meaning  only  that  the  parent  or 
guardian  sanctions  the  binding  of  the  apprentice,  and  does  not 
bind  himself,  it  will  be  so  construed,  although  the  covenants 
may  seem  to  be  covenants  both  of  the  apprentice  and  of  the 
parent. 

Not  only  a  party  who  seduces  an  apprentice  from  his  service 
is  liable,  (o)  but  where  one  employs  an  apprentice  without  the 
knowledge  and  consent  of  his  master,  the  employer  is  liable  to 
the  master  for  the  services  of  the  apprentice,  although  he  did 
not  know  the  fact  of  the  apprenticeship,  (oo)  *It  may  be  added 
that  if  an  action  be  brought  for  harboring  an  apprentice  against 
the  will  or  without  the  consent  of  his  master,  the  plaintiff  is 
bound  to  prove  that  the  defendant  had  a  knowledge  of  the 
apprenticeship.  (/?)  But  a  defendant  who  did  not  know  the 
apprenticeship  when  he  hired  or  received  the  apprentice,  and 
who  being  informed  thereof  continued  to  retain  and  harbor  him, 
thereby  makes  himself  liable,  (pp) 


that  consent,  and,  in  my  opinion,  with 
no  other  intent,  and  for  no  otlier  pur- 
pose, tlic  guardian  sij^ns  and  seals  the 
instrument.  It  is  ohjectcd  to  this,  that 
great  inconveniences  and  misciiiefs  will 
arise  from  this  construction  of  tliis  spe- 
cies of  indenture.  But  to  guard  against 
tfiese,  the  guardian  may  enter  into  cove- 
nants cxjilicitly  witii  the  master,  and 
there  is  no  doubt  such  covenants  will 
ho  valid  and  binding  upon  him."  Sec 
also  Holbrook  v.  Bullard,  10  Tick.  G8. 
The  same  rule  is  supported  by  Ackley 
I'.  Hoskins,  14  Johns.  374.  See  further, 
Sackett  v.  Johnson,  .3  Blackf.  61  ;  Chap- 
man V.  Crane,  20  Maine,  172. 

(o)  Lightly  V.  Clouston,  1  Taunt.  112  ; 
Foster  v.  .Stewart,  3  M.  &  S.  191.  So, 
it  seems,  that  the  seduction  of  a  minor, 
who  is  a  servant  de  facto,  though  not  a 
legal  apprentice,  from  the  service  of  the 
master,  is  actionable.  Betcrs  v.  Lord,  18 
Conn.  337. 


(oo)  Bowes  V.  Tibbcts,  7  Greenl.  4.')7 ; 
Conant  v.  Raymond,  2  Aik.  243 ;  Mun- 
sey  V.  Goodwin,  3  New  Hamj).  272 ; 
James  v.  Le  Koy,  6  Johns.  274.  In 
Ayer  v.  Chase,  19  Pick.  .').")G,  where  the 
plaintiff  put  his  apprentice  into  the  ser- 
vice of  another  person  exercising  the 
plaintitFs  trade,  for  a  short  time,  on 
wages  to  be  paid  to  the  plaintilf,  and 
during  that  period  the  ap])renticc  ab- 
sconded, and  went  to  sea,  it  was  held 
tliat  by  sucli  transfer  of  the  apprentice  the 
plaintiff's  right  to  his  services  was  sus- 
pended, and  that  it  did  not  revive  upon 
ills  absconding,  so  as  to  entitle  the  plain- 
tiff to  his  earnings  on  tiic  vovage. 

(/>)  Ferguson  r.  Tucker,  2  liar.  &  Gill, 
182.  And  sec  Stuart  i'.  Simpson,  1 
Wend.  376  ;  Conant  v.  Raymond,  2 
Aikens,  243. 

(p}>)  Ferguson  v.  Tucker,  supra. 


[5G3  ] 


537-538* 


THE   LAW   OF    CONTRACTS. 


[book  III. 


CHAPTER  X. 

contracts  for  service  generally. 

There  is  in  all  such  contracts  a  promise,  implied  if  not 
expressed,  that  the  party  employing  will  pay  for  the  service 
rendered  ;  (q)  and,  on  the  other  hand,  that  the  party  employed 
will  use  due  care  and  dilisrence,  and  have  and  exercise  the 
skill  and  knowledge  requisite  for  the  employment  under- 
taken. (?•)  And  if  the  contract  express  that  the  service  shall 
be  gratuitous,  then  it  is  void  for  want  of  consideration  ;  (s) 
but  there  may  be  a  valid  agreement  to  delay  payment,  or  to 
make  the  payment  conditional  on  the  happening  of  some  event, 
—  as  when  the  work  is  finished,  or  when  the  employer  receives 
his  pay.  (t)  If  a  party  agrees  to  do  work,  and  receive  no  pay, 
he  cannot  recover  pay,  (u)  if  he  does  the  work;  *but  if  there 


I 


(q)  Phillips  V.  Jones,  I  Acl.  &  El.  333, 
ante,  page  529,  (d). 

(?•)  Morris  v.  Redfield,  23  Verm.  29.5 ; 
Goslin  V.  Hodson,  24  id.  140 ;  Kail  r. 
Cannon,  4  Earring.  360  ;  Ilagerr.  Nolan, 
6  Louis.  Ann.  70.  And  see  Streeter  v. 
Horlock,  1  Bing.  34. 

(s)  In  such  case  the  person  contracting 
to  do  tiie  work  is  not  bound  to  commence 
it.  But  if,  in  tlie  understanding  of  all 
parties,  tlie  services  Avere  originally  ren- 
dered gratuitously,  they  cannot  afterwards 
be  made  a  charge.  James  v.  O'DriscoU, 
2  Bay,  101.  So  in  Davics  v.  Davics,  9 
C.  &'P.  87,  A  and  his  wife  boarded  and 
lodged  in  the  house  of  B,  the  brother  of 
A,  and  both  A  and  his  wife  assisted  B  in 
carrying  on  his  business.  A  brought  an 
action  for  the  services,  to  which  B  pleaded 
a  set-olf  for  board  and  lodging.  Held, 
that  neither  tlie  services  on  the  one  hand, 
nor  the  board  and  lodging  on  the  other, 
could  be  charged  for,  unless  the  jury  were 

[564] 


satisfied  that  the  parties  came  together  on 
the  terras  that  they  were  to  pay  and  to 
be  paid ;  but  that  if  that  were  not  so,  no 
ex  post  facto  charge  could  be  made  on 
either  side. 

[t)  liobinson  v.  The  New  York  Ins.  Co. 
2  Caines,  357,  1  Jolms.  G16. 

(u)  In  Jacobson  v.  Le  Grange,  3  Johns. 
199,  where  a  young  man,  at  tlie  request  of 
his  uncle,  went  to  live  with  him,  and  the 
uncle  promised  to  do  by  him  as  his  own 
child ;  and  he  lived  and  worked  for  him 
above  eleven  years,  and  tlie  uncle  said 
that  his  nephew  should  be  one  of  his 
heirs,  and  s])oke  of  advancing  a  sum  of 
money  to  purchase  a  farm  for  him,  as  a 
compensation  for  his  services,  but  died 
without  devising  any  thing  to  the  nephew, 
or  making  him  any  compensation  ;  it  was 
held  that  an  action  on  an  implied  assump- 
sit would  lie  against  the  executors,  for 
the  work  and  hibor  performed  by  the 
nephew  for  the  testator.  But  in  Patterson 


CH.  X.] 


COXTRACTS    FOR   SERVICE    GEXERALLY. 


*539 


be  a  contract  of  service  which  is  silent  or  indefinite  in  regard 
to  compensation,  the  party  who  renders  the  service  under  it 
may  recover  pay  under  a  quantum  meruit ;  {v)  and  if  by  the 
contract  the  party  employed  agrees  to  leave  the  compensation 
entirely  to  the  employer,  the  jury  may  give  what  the  employer 
ought  to  give,  {lu) 

It  seems  to  be  doubted  in  England  whether  an  arbitrator 
can  recover  for  his  services  without  an  express  promise ;  (.r) 
but  the  doubt  appears  to  grow  out  of  the  peculiar  English  rule, 
that  the  employment  of  a  barrister  at  law  is  wholly  honorary, 
and  gives  him  no  legal  claim  for  compensation.  We  have  no 
such  recognized  rule  here,  although  the  distinction  between 
barristers  and  attorneys  is  preserved  in  some  States,  and  it 
seems  that  some  difference  has  been  made  as  *to  their  lien  on 


V.  Patterson,  13  Johns.  379,  the  facts  were 
that  the  i)hiintilf,  after  he  had  come  of 
age,  lived  witli  and  worked  for  his  father, 
the  defendant,  who  said  he  woukl  reward 
him  well,  and  provide  for  him  in  his  will ; 
held,  that  the  plaintiff  could  not  maintain 
an  action  to  recover  compensation  for  his 
sen-ices  during  the  lifetime  of  his  father. 
Sec  also,  ante,  p.  531,  n.  [e.) 

(v)  See  Jewry  v.  Ikisk,  .5  Taunt.  302  ; 
Bryant  r.  Flight,  .5  M.  &  W.  116. 

[w)  Thus,  in  Bryant  r.  Flight,  5  M.  & 
W.  1 14,  A  agreed  to  enter  into  the  service 
of  ]},  and  wrote  to  him  a  letter,  as  fol- 
lows :  "  I  herein'  agree  to  enter  your 
service  as  weekly  manager,  commencing 
next  Monday ;  and  the  amount  of  pay- 
ment I  am  to  receive  I  leave  entirely  to 
you."  A  served  B  in  that  cajmcity  for 
six  weeks.  Held,  ( Parke,  li.,dissentie!ite,) 
that  the  contract  implied  that  A  was  to  he 
paid  something  at  all  events  for  the  ser- 
vices he  performed  ;  and  that  the  jury,  in 
an  action  on  a  tiuantitm  meruit,  might  as- 
certain wliat  B,  acting  Imia  Jide,  would 
or  ought  to  have  awarded.  So  in  Jewry 
V.  Busk,  5  Taunt.  302,  it  is  held  that  a 
request  to  a  tradesman  to  show  the  de- 
fendant's house,  "  and  the  defendant 
would  make  him  a  handsome  j)rcscnt," 
is  evidence  of  a  contract  to  pay  a  reason- 
able compensation  for  the  work  and  lahor 
bestowed  in  that  service.  But  in  the  ear- 
lier case  of  Taylor  v.  Brewer,  1  M.  &  S. 
290,  where  a  i)erson  performed  work  for 
a  committee,  under  a  resolution   entered 

VOL.    I.  48 


into  by  them,  "  that  any  service  to  be  ren- 
dered by  him  should  be  taken  into  con- 
sideration, and  such  remuneration  be 
made  as  should  be  deemed  right,"  it  was 
held  that  an  action  would  not  lie  to  recov- 
er a  recompense  for  such  work,  the  reso- 
lution importing  that  the  committee  were 
to  judge  whether  any  remuneration  was 
due. 

(x)  Although  the  English  cases  are  not 
quite  agreed  upon  the  subject,  yet  it  seems 
the  more  generally  received  opinion  in 
that  country,  that  the  appointment  of  an 
arbitrator  is  not  of  such  a  nature  as  to 
raise  an  im])lied  promise  to  pay  him  a 
reasonable  comjicnsation  for  his  services. 
Virany  v.  Warne,  4  Es]i.  447  ;  Burroughes 
V.  Clarke,  1  Dowl.  B.  C.  48.  But  sec 
Swinford  v.  Burn,  1  Gow,  5.  An  express 
promise  to  pay  by  the  party  will,  however, 
bind  him,  and  give  the  arbitrator  a  right 
of  action.  Hoggins  r.  Gordon,  3  Q.  B. 
46G.  In  this  country,  arbitrators  and 
referees  under  a  rule  of  court  have  the 
same  right  to  recover  for  their  services  as 
any  person  for  his  laitor.  Iliimian  v. 
Ilapgood,  1  Denio,  188;  Hassingcr  v. 
Diver,  2  Miles,  411.  But  the  action  must 
not  be  against  both  parties  to  the  suit 
jointli/,  but  only  against  the  party  pro- 
ducing the  claim  or  demand.  Butman  v. 
Abbot,  2  Greenl.  361.  If  there  were  sev- 
eral arbitrators,  each  may  maintain  a 
sc]iarate  action  for  his  own  services, 
llinman  ?•.  Ilapgood,  1  Denio,  188.  But- 
man V.  Abbot,  supra. 

[565] 


540* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


the  papers  or  the  judgment  for  fees,  (y)  In  general,  however, 
all  lawyers  have  in  this  country  the  same  legal  claim  for  com- 
pensation that  attorneys  have  in  England,  (z)  So  in  England 
a  physician  (or  one  licensed  by  the  college  of  physicians)  has 
no  remedy  at  law  for  his  services  ;  (a)  but  a  "  medical  practi- 
tioner," whose  legal  appellation  is  usually  "  apothecary,"  has ; 
but  we  have  no  such  distinction  here,  (b) 

*Where  there  is  a  special  agreement  for  the  performance  of 


{if)  In  most  States  there  is  no  difference 
between  attorneys,  counsellors,  and  bar- 
risters in  this  respect.  See  Heartt  v.  Chip- 
man,  2  Aikens,  162;  2  Greenl.  Ev.  § 
144,  n.  4  ;  Mooney  v.  Lloyd,  5  S.  &  R. 
412  ;  Gray  v.  Brackenridge,  2  Penn.  75. 
Although  an  attorney  has  a  lien  on  a 
judgment  for  his  fees  and  expenses,  yet 
this  does  not  include  fees  as  a  "  counsel- 
lor."    Heartt  v.  Chipman,  supra. 

(z)  Wilson  V.  Burr,  25  Wend.  386; 
Stevens  v.  Adams,  23  id.  57  ;  Newman  v. 
Washington,  INIart.  &  Yer.  79.  But  see 
Van  Atta  v.  McKinney,  1  Harr.  235. 
The  law  implies  a  promise  on  the  part  of 
the  client  to  pay  his  attorney  for  his  ser- 
vices the  statute  rate  of  compensation. 
The  burden  of  proving  that  tlie  attorney 
undertook  to  perform  the  services  for  a  less 
rate  is  upon  the  client.  Brady  v.  Mayor, 
&c.  1  Sandf.  569.  But  the  attorney  can- 
not recover  more  than  he  agreed  to  re- 
ceive, by  proof  that  his  services  were 
worth  more.  Coop  wood  v.  Wallace,  12 
Ala. '790.  Nor  can  he  rightfully  claim 
one  half  of  the  amount  recovered,  because 
the  debt  was  desperate.  Christy  v.  Doug- 
las, Wright,  485.  Although  the  attorney 
during  the  pendency  of  a  suit,  makes  a 
contract  with  his  client,  which  is  void  for 
champerty,  he  may  still  recover  for  such 
services  as  were  rendered  before  such  ille- 
gal agreement  was  entered  into.  Thurs- 
ton V.  Percival,  1  Pick.  415.  See  Rust  v. 
Larue,  4  Litt.  417  ;  Caldwell  i\  Shepherd, 
6  Monr.  392  ;  Sniitli  v.  Thompson,  7  B. 
Monr.  305.  But  in  an  action  by  an  at- 
torney for  services,  his  pocket-docket,  on 
■which  is  entered  the  names  of  cases  in 
which  he  acted  as  counsel,  is  not  of  itself 
evidence  of  his  right  to  chai'ge  for  his  ser- 
vices. Briggs  V.  Georgia,  15  Verm.  61. 
An  attorney  cannot  recover  of  his  client 
for  professional  services  without  proving 
a  retainer,  and  proof  of  the  actual  per- 
formance of  services  is  not  sufficient, 
where  there  is  no  proof  of  a  knowledge  or 

[566] 


a  recognition  of  the  services  by  the  client. 
Burghait  v.  Gardner,  3  Barb.  64.  An 
attorney  has,  in  some  States,  a  lien  upon 
his  client's  papers  left  with  him,  for  any 
general  balance  due  him.  Dennett  v. 
Cutts,  11  New  Hamp.  163;  Walker  v. 
Sargeant,  14  Verm.  247  ;  Aliter  in  Penn- 
sylvania. Walton  V.  Dickerson,  7  Barr, 
376.  So  by  statute  in  many  States  he 
has  a  lien  upon  a  judgment  actually  re- 
covered in  favor  of  his  client,  for  his  fees 
and  disbursements.  Duncklee  v.  Locke, 
13  Mass.  525;  Potter  v.  Mayo,  3  Greenl. 
34;  Gammon  v.  Chandler,  30  Maine, 
152;  Ocean  Ins.  Co.  v.  Rider,  22  Pick. 
210;  Hobson  v.  Watson,  34  Me.  20. 
And  even  without  statute  provisions.  Sex- 
ton V.  Pike,  8  Eng.  (Ark.)  193.  A  coun- 
sel, who,  with  his  client's  consent,  with- 
draws from  a  case  after  having  tendered 
beneficial  services,  does  not  thereby  lose 
his  right  to  compensation  for  the  services 
rendered,  uidess  at  the  time  of  his  with- 
drawal he  waives  or  abandons  his  claim  to 
compensation.  Coopwood  v.  Wallace, 
12  Ala.  790. 

(a)  Chorley  v.  Bolcot,  4  T.  R.  317; 
Lipscombe  v.  Holmes,  2  Camp.  441  ; 
Boucher  v.  Norman,  3  B.  &  C.  745. 
Neither  could  a  physician  who  prepared 
or  dispensed  his  own  medicines  recover 
for  them,  although  they  were  furnished  to 
his  own  patients.  Best,  J.,  in  Allison  v. 
Haydon,  1  M.  &  P.  591,  4  Bing.  619. 

(6)  In  some  States  physicians  may  re- 
cover for  their  services,  although  they 
were  never  licensed  as  physicians.  See 
Towle  V.  Marrett,  3  Greenl.  22 ;  Hewitt 
y.  Wilcox,  1  Met.  154;  Bailey  r.  Mogg, 
4  Den.  60;  Warren  v.  Saxl)y,  12  Verm. 
146.  In  other  States  there'  either  now 
exist,  or  have  existed,  statutes,  providing 
that  they  shall  not  be  entitled  to  the  bene- 
fit of  the  law  to  recover  their  fees,  unless 
they  have  been  duly  licensed  by  some 
medical  society,  or  graduated  a  doctor  in 
some   medical    school.      See   Hewitt    r. 


CH.  X.] 


CONTRACTS  FOR  SERVICE  GENERALLY. 


*o41 


work,  no  action  can  be  maintained  on  a  qvantum  meruit  while 
the  contract  remains  open  and  executory,  (c) 

It  often  happens,  where  there  is  a  contract  for  a  piece  of 
work  to  be  done  for  a  definite  sum,  as  for  a  house  to  be  built 
or  repaired,  that  extra  work  is  done  by  the  party  employed  ; 
and  there  are  numerous  anrl  conflicting  cases  as  to  the  rights 
and  obligations  of  the  parties  in  these  cases.  It  seems  to  have 
been  at  one  time  doubted  whether  any  claim  existed  for  such 
extra  work,  unless  a  new  contract  could  be  shown ;  and  such  is 
the  provision  of  the  French  law.  [d)  But  from  the  authorities 
generally,  and  the  reason  of  the  case,  we  think  the  following 
principles  may  be  deduced.  *The  party  cannot  recover  for  extra 
work,  or  even  for  better  materials  used,  if  he  had  not  the  au- 
thority of  the  other  party  therefor,  (e)     But  the  authority  will 


Charier,  16  Pick.  353 ;  Si)aulcling  v.  M- 
fonl,  1  id.  33  ;  Smith  v.  Tracy,  2  Hall, 
465 ;  Berry  v.  Scott,  2  Ilarr.  &  Gill,  92. 
In  some  States  it  has  iieen  liehl,  that  al- 
though such  restrictive  statutes  have  been 
repealed,  a  physician  cannot  recover  for 
services  performed  before  such  repeal. 
Warren  v.  Saxby,  12  Vcmi.  146;  Nichols 
V.  Poulson,  6  Ohio,  305  ;  Bailey  v.  Mogg, 
4  Denio,  60;  contra,  Hewitt  v.  Wilcox,  1 
Met.  154.  A  physician  undertakes  to  cm- 
ploy  usual  skill,  but  not  to  cure.  Gal- 
laher  v.  Thompson,  Wright,  466.  He 
may,  however,  make  a  conditional  con- 
tract, that  if  he  docs  not  cure  he  shall  not 
be  paid  ;  such  a  contract  is  valid  ;  and  in 
sucii  case  he  cannot  recover  for  his  ser- 
vices or  his  medicines,  unless  he  shows  a 
performance  of  the  condition  on  his  part. 
Smith  V.  Hyde,  19  Verm.  54.  It  is  not 
necessary,  however,  in  order  to  constitute 
such  a  conditional  contract,  that  a  specific 
price  should  be  agreed  upon-.  In  case  of 
a  cure  he  will  be  entitled  to  a  reasonable 
comiiensation.  Mock  v.  Kelly,  3  Ala. 
387. 

(c)  Clark  V.  Smith,  14  Johns.  326; 
Rces  V.  IJiics,  8  C.  &  P.  126  ;  which  was 
an  action  of  assumpsit.  Tiic  first  count 
of  the  declaration  was  on  a  special  agree- 
ment for  the  plaintiff  to  build  a  house  for 
the  defendant,  at  an  agreed  price,  and 
stated  that  the  plaintifl"  had  bestowed 
work  u)ion  the  house,  and  that  the  de- 
fendant atiandoned  the  contract,  and 
hindered  the  plaintiff  from  completing  it; 
2d  count,  for  goods  sold.  I'leas,  non-as- 
sumpsit, and  that  the  defendant  did  not 


abandon  the  contract,  or  prevent  tlie  plain- 
tiff from  completing  the  liouse.  The  par- 
ticulars of  demanil  were  for  work  and 
materials  under  tlie  agreement.  Ueld, 
that  if  the  defendant  had  not  hindered  the 
plaintiff  from  completing  the  house,  the 
plaintiff  could  not  recover  any  thing,  ex- 
cept for  extra  work,  which  was  not  in  the 
contract,  and  that  the  fact  that  the  defend- 
ant, when  asked  for  money,  had  said  that 
he  would  never  pay  a  farthing,  was  not 
proof  that  the  contract  bad  l>een  aban- 
doned, as  the  defendant  was  not  then 
liable  to  pay  any  thing,  the  work  not 
being  completed.  —  So  where  A  engaged 
to  convey  away  certain  rubbish  for  B  at  a 
specified  sum,  under  a  fraudulent  re|)re- 
sentation  by  B  as  to  the  quantity  of  nilibish 
which  was  to  be  so  conveyed.  ILId,  that 
in  an  action  for  the  work  actually  done,  A 
could  recover  only  according  to  the  terms 
of  the  special  contract,  altlioiigli  when  he 
discovered  the  fraud  he  miglit  have  repu- 
diated the  contract,  and  sued  B  for  deceit. 
Selway  r.  Fogg,  5  M.  &  AV.  83.  If  the 
whole  of  such  special  contract  is  executed 
on  the  jdaintiff's  part,  and  the  time  of 
payment  has  elapsed,  general  assumpsit 
may  be  maintained  ;  and  the  measure  of 
damages  will  be  the  rate  of  compensation 
fi.xed  by  the  special  contract.  Bank  of 
Columbia  f.  I'attcrson,  7  Cranch,  299  ; 
Perkins  v.  Hart,  1 1  Wheat.  237  ;  Chesa- 
peake and  Ohio  Canal  r.  Knapi>,  9  Petere, 
541  ;  Baker  v.  Corey,  19  Pick.  496. 

Ul]  Code  Civile,  bk.  3,  tit.  8,  art.  179.3. 

(f)  Hort  r.  Norton,  1  McCord,  22; 
Wilmot  r.  Smith,  3  C.   &   P.  453,  where 

[5671 


542" 


THE   LAW    OF   CONTRACTS. 


[book  III. 


be  implied  if  the  employing  party  saw  or  knew  of  the  work  or 
materials  in  time  to  object  and  stop  the  work,  without  injury  to 
himself,  and  not  under  circumstances  to  justify  his  belief  that 
no  charge  was  intended,  and  did  not  object,  but  received  and 
held  the  benefit  of  the  same.  (/)  And  if  he  received  from  the 
employed  an  estimate  of  the  cost  of  such  extra  work,  and  then 
ordered  it,  the  party  employed  might  be  bound  by  that  esti- 
mate. And  if  the  changes  were  such  that  the  employer  need 
not  infer  that  they  involved  any  additional  expense,  and  he 
was  not  so  informed,  an  express  assent  to  them  does  not  imply 
a  promise  to  pay  for  them,  because  it  is  fair  to  suppose  that 
*he  believed  they  were  done  under  the  contract,  and  assented  to 
only  on  those  terms.  If  the  changes  necessarily  imply  an  in- 
creased price,  and  he  expressly  authorizes,  or  silently,  but  with 
full  knowledge,  assents  to  them,  he  is  then  bound  to  pay  for 
them.  The  question  may  then  arise,  whether  he  is  to  pay  for 
them  according  to  the  usual  rate  of  charging  for  such  work, 
with  no  reference  to  the  contract,  or  whether  he  must  pay  only 


it  was  ruled  by  Lord  Tenterden  that  if  A 
agrees  to  make  an  article  of  certain  mate- 
rials for  a  stipulated  price,  but  puts  in 
materials  of  a  better  kind,  he  is  not  at 
lilierty  on  that  account  to  charge  more 
than  the  stipulated  price,  nor  can  he  re- 
quire the  article  to  be  returned,  because 
the  buyer  will  not  pay  an  increased  price 
on  account  of  the  better  materials.  For 
labor  and  service  voluntarily  done  by  one 
for  another,  without  his  privity  or  consent, 
however  meritorious  or  beneficial  it  may 
be  to  him,  as  in  saving  his  property  from 
destruction  by  fire,  itself  affords  no  ground 
for  an  action.  Bartholomew  v.  Jackson, 
20  Johns.  28. 

(/ )  In  Lovelock  v.  King,  1  M.  &  Rob. 
6.0,  a  very  important  and  wholesome  prin- 
ciple was  laid  down  upon  the  subject  of 
extra  work,  where  there  is  a  specific  con- 
tract for  certain  work  at  a  fixed  price. 
The  action  was  assumpsit  on  a  carpenter's 
bill  for  alterations  in  a  house  of  the  de- 
fendant. Lord  Tenterden,  m  summing  up 
to  tlie  jury,  observed :  "  That  the  ease, 
although  very  common  in  its  circum- 
stances, involved  a  very  imjaortant  prin- 
ciple, and  required  their  very  serious  con- 
sideration. In  this  case,  as  in  most  others 
of  the  kind,  the  woi'k  was  originally  un- 
dertaken on  a  contract  for  a  fixed  sum. 

[568] 


A  person  intending  to  make  alterations  of. 
this  nature  generally  consults  the  person 
whom  he  intends  to  employ,  and  ascertains 
from  him  the  ex]iense  of  the  tmdertaking; 
and  it  will  very  frequently  depend  on  this 
estimate  whether  he  proceeds  or  not.  It 
is  therefore  a  great  hardship  upon  him  if 
he  is  to  lose  the  protection  of  this  estimate 
unless  he  fully  understands  that  such  con- 
sequences will  follow,  and  assents  to  them. 
In  many  cases  he  will  be  completely  igno- 
rant whether  the  particular  alterations 
suggested  will  produce  any  increase  of 
labor  and  expenditure;  and  I  do  not 
think  that  the  mere  fact  of  assenting  to 
them  ought  to  deprive  him  of  the  protec- 
tion of  his  contract.  Sometimes,  indeed, 
the  natiu'C  of  the  alterations  will  be  such 
that  he  cannot  fail  to  be  aware  that  they 
must  increase  the  expense,  and  cannot 
therefore  suppose  that  they  are  to  be  done 
for  the  contract  price.  But  where  the  de- 
partures from  the  original  scheme  are  not 
of  that  character,  I  think  the  jury  would 
do  wisely  in  considering  that  a  party  does 
not  abandon  the  security  of  his  contracts 
by  consenting  that  such  alterations  shall 
be  made,  unless  he  is  also  informed,  at  the 
time  of  the  consent,  that  the  effect  of  the 
alteration  will  be  to  increase  the  expense 
of  the  work." 


CH.  X.] 


CONTRACTS   FOR    SERVICE    GENERALLY. 


-542 


according  to  the  rate  of  the  contract 


Some  cases  hold  the 
former;  but  we  think  the  better  practice  and  the  better  reason 
in  favor  of  the  latter,  (g-) 


((/)  In  McCormick  v.  Connoly,  2  Bay, 
401,  it  was  said  that  where  a  contract  is 
made  for  any  biiikling,  ofwliatever  size  or 
dimensions,  it  becomes  a  law  to  lioth  par- 
ties, and  they  are  both  bound  by  it  and 
whatever  additions  or  alterations  are  made 
in  such  buildiufr,  they  form  a  new  con- 
tract, either  express  or  implied,  and  must 
be  paid  for  agreeably  to  such  new  con- 
tract. See  Wright  r.'Wright,  1  Litt.  179. 
In  Dubois  V.  Del.  &  Hud.  C^na!  Co.  12 
Wend.  3.34,  a  party  entered  into  an  agree- 
ment for  the  construction  of  a  section  of  a 
canal,  by  which  he  was  to  receive  a  given 
price  per  cubic  yard  for  ordinary  excava- 
tion, and  an  increased  sum  per  cubic  yard 
for  excavation  of  rock,  but  no  com])ensa- 
tion  was  provided  for  the  excavation  of 
hard  pan.  During  the  progress  of  the 
work  a  large  quantity  of  the  latter  sub- 
stance was  excavated,  a  fair  remuneration 
for  which  exceeded  the  highest  price  spec- 
ified in  the  contract  for  any  species  of 
work,  and  the  parties  whilst  the  section 
was  constructing,  treated  the  excavation 
of  hard  i)an  as  not  embraced  in  the  con- 
tract, and  after  its  completion  it  was  con- 
ceded by  him  for  whom  the  work  was 
done  tiiat  the  contractor  was  entitled  to 
compensation  for  such  work,  beyond  the 
price  fixed  for  oi'dinary  excavation ;  it 
was  held  that  the  contractor  was  entitled 
to  recover  for  such  work  ujiou  a  quantum 


meruit  whatever  he  could  show  tlie  work 
was  worth.  In  Tebbetts  v.  Haskins,  16 
Maine,  288,  where  a  contract  in  wTiting 
had  been  made  between  .two  persons, 
wherein  one  agreed  to  build  a  house,  and 
the  other  to  pay  a  certain  sum  therefor, 
and  which  had  aftenvards  been  abandoned 
by  them,  and  a  house  had  been  built  by 
one  party  to  the  written  contract  for  the 
other  party  and  two  others ;  it  was  held 
that  it  was  not  necessary  to  prove  an  ex- 
press contract,  but  that  one  might  be  im- 
plied ;  and  that  the  price  for  building  the 
house  was  not  to  be  ascertained  from  that 
fixed  in  the  written  contract.  In  De 
Boom  V.  Priestly,  1  Cala.  20G,  which  was 
an  action  on  a  qnnnUnn  meruit,  the  court 
held  that  where  there  has  Iteen  a  special 
contract  which  is  afterwards  deviated  from, 
the  party  cannot  sue  thereon,  but  must 
bring  his  action  on  an  implied  contract, 
and  at  the  trial  the  damages  must  be 
graduated  according  to  the  terms  of  the 
original  contract,  so  far  as  the  work  can 
be  traced  under  it.  And  in  Farmer  i\ 
Francis,  12  Ired.  L.  282,  it  is  held  that  a 
party  working  after  the  time  limited  for 
the  performance  of  a  contract  is  confined 
in  his  action  to  the  rate  of  compensation 
fixed  by  the  contract.  The  same  doctrine 
is  held  in  Jones  v.  Woodbury,  11  B. 
Mon.  167. 


48* 


[569] 


543  THE    LAW    OF   CONTRACTS.  [jBOOK  III. 


CHAPTER  XL 


MARRIAGE. 


We  have  now  to  consider,  first,  contracts  to  marry  ;  then 
contracts  in  relation  to  a  future  marriage  ;  then  contracts  in 
restraint  of  marriage  ;  and,  lastly,  the  contract  of  marriage. 


SECTION    I. 

CONTRACTS   TO   MARRY.     ' 

Contracts  to  marry  at  a  future  time  were  once  regarded  by 
the  English  courts  with  disfavor.  They  "should  be  looked 
upon,"  said  Lord  Hardwicke,  "  with  a  jealous  eye ;"  and  Lord 
Mansfield  quoted  this  remark  with  approbation.  (A)  But  it  is 
now  perfectly  well  settled,  both  in  England  and  in  this  country, 
and  indeed  has  been  for  a  considerable  time,  that  these  con- 
tracts are  as  valid  and  eifectual  in  law  as  any  ;  and  that,  in 
actions  upon  them,  damages  may  be  recovered,  not  only  for 
pecuniary  loss,  but  for  suffering,  and  injury  to  condition  and 
prospects,  (i)  The  reason  is  obvious  ;  marriages  can  seldom  be 
celebrated  simultaneously  with  betrothment,  or  engagement;  a 
certain  time  must  intervene  ;  and  it  would  be  very  unjust  to 
leave  parties  who  suffer  by  a  breach  of  a  contract  of  such  ex- 
treme importance  wholly  remediless. 

{h)     Holcroft    V.    Dickenson,    Carter,  particular  phrase   is   not  found  in  Lord 

233  ;  Key   v.   Bradshaw,    2    Vem.    102 ;  Hardwicke's  decision  as  reported,  but  the 

Woodhouse  v.  Shepley,  2  Atkyns,  539  ;  opinion  may  be  gathered  from  what  he 

Lowe  V.  Peers,  4  Bur.  2230.     In  this  last  says. 

case   Lord   Mansfield  says:    "All   these  (?)  Boynton  ?;.  Kellogg,  3  Mass.  189; 

contracts    should    be    looked    upon    (as  Paul   v.   Frazier,   id.    71 ;  Wightman  v. 

Lord  Hardwicke  said   in   Woodhouse   v.  Coates,  15  id.  1  ;  ]\ [organ  r.  Yarborough, 

Shepley,)  with  a,  jealous  eye ;  even  suppos-  5  Louis.  Ann.  317. 
ing  them  clear  of  any  direct  fraud."     This 

[570] 


CH.  XI.]  MARRIAGE.  •  544 

The  promises  must  be  reciprocal ;  [j)  but  they  need  not  be 
made  at  the  same  time ;  for  if  an  offer  be  made,  though  retract- 
able until  acceptance,  yet  if  not  retracted  it  remains  for  reason- 
able time  open  for  acceptance,  and  when  accepted  the  contract 
is  complete. 

An  apparent  exception  as  to  this  necessity  of  reciprocity  is 
taken  where  the  promise  to  marry  is  made  by  deed.  There,  as 
the  seal  implies  consideration,  no  other  is  strictly  necessary  ; 
but  the  covenantee  must  be  ready,  able,  and  willing  to  receive 
the  covenantor  in  marriage.  The  plaintiff  need  not  aver  or 
prove  a  promise  on  his  or  her  part ;  and  if  the  plaintiff  be  a 
woman,  she  need  not  aver  or  prove  an  offer  by  her ;  "  it  is  well 
enough  without  saying  oblidit  se  at  all,  because  she  was  semper 
parata.  The  man  is  diicerevxoremy  [k)  "  The  modesty  of  the 
sex  is  considered  by  the  common  law,"  says  Lord  Coke.  "  It 
can  hardly  be  expected  that  a  lady  should  say  to  a  gentleman, 
'  I  am  ready  to  marry  you,  pray  marry  me.'  "  (/) 

A  woman  is  doubtless  bound  by  such  a  covenant  as  well  as 
a  man  ;  yet  it  would  be  regarded  with  more  suspicion  ;  and  if 
such  an  obligation  were  obtained  by  a  man  who  gave  no  cor- 
responding promise  on  his  part,  and  it  were  obvious  that  he 
intended  to  bind  her  but  leave  himself  at  liberty,  it  would  prob- 
ably be  set  aside  in  equity.  Where  the  promise  is  mutual,  it 
was  long  since  settled  that  an  action  for  a  breach  of  the  con- 
tract may  be  maintained  against  the  woman,  (m) 

This  action  cannot  be  maintained  against  an  infant;  and 
some  question  has  been  made  whether  an  infant  can  maintain 
this  action ;  because  the  promise  of  the  infant  being  void  or 
voidable,  the  contract  is  not  mutual,  and  is  without  considera- 
tion. But  in  many  cases  an  infant  may  bring  an  action  for, 
breach  of  contract  against  the  adult,  where  the  adult  could  not 


{j)  Hebden  v.   Rutter,  1    Sid.  180,  1  in  Wctmorc  r.  "Wells,  1  Ohio  State  Reps. 

Lev.    147;     Harrison    v.    Cage,    Carth.  26,  it  is  decided  that  where  the  defendant's 

467  ;  Stretch  v.  Parker,  1  Rol.  Abr.  22,  promise  is  proved,  tlie  female  may  prove 

pi.  20.  her  own  acts  and  declarations  in  onlcr  to 

(k)  Holcroft  i".  Dickenson,  1  Freeman,  show  her  assent.      See   also    Morgan  v. 

347.  Yarlxjroufih,  5  Louis.  Ann.  317. 

(/)  Sevmonr   v.    Gartside,  2   D.  &  R.         (m)  Harrison  v.  Cage,  1  Lord  Ravra. 

57.     See' Wells  v.  Padgett,  8  Barh.  323.  386,  1  Salk.  24. 
In  Moritz  v.  Melhom,  13  Pcnn.  331,  and 

[57ir 


545*-54fi* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


sne  the  infant  for  a  breach  on  his  or  her  part.  It  *seems  to 
be  distinctly  settled,  that  this  is  so  in  the  case  of  a  contract  to 
marry,  [n) 

The  very  words,  or  time,  or  manner  of  the  promise  need  not 
be  proved  ;  for  it  may  be  inferred  from  circumstances.  It  may 
be  that  this  inference  is  sometimes  made  too  easily,  and  that 
juries,  or  perhaps  courts,  justify  the  reproach,  that  feeble  evi- 
dence is  sometimes  held  sufficient  to  prove  such  a  promise. 
Bat  it  must  be  remembered  that  such  engagements  are  often, 
if  not  usually  made  without  witnesses,  and  are  not  often  re- 
duced to  writing.  A  requirement  of  precise  and  direct  testi- 
mony would  facilitate  fraud,  more  perhaps  than  in  any  other 
class  of  contracts,  and  fraud  that  might  work  extreme  mis- 
chief. It  has  therefore  been  wisely  decided  that  the  contract 
may  be  inferred  from  the  conduct  of  the  parties,  and  from  the 
circumstances  which  usually  attend  an  engagement  to  marry  ; 
as  visiting,  the  understanding  of  friends  and  relations,  prepara- 
tions for  marriage,  and  the  reception  of  the  party  by  the  family 
as  a  suitor. 

Where  the  promise  by  the  defendant  was  proved,  the  de- 
meanor of  the  plaintiff,  being  that  of  a  betrothed  woman,  was 
held  to  be  sufficient  evidence  of  her  promise,  (o)    And  *consent 


(n)  Holt  V.  Ward,  Strange,  937  ; 
Willavd  V.  Stone,  7  Cow.  22  ;  Hunt  v. 
Peake,  5  Cow.  475 ;  Pool  v.  Pratt,  1 
Chip.  252. 

(o)  In  the  case  of  Hutton  v.  Mansell,  3 
Salk.  16,  tried  before  Bolt,  C.  J.,  the 
premise  of  tiie  man  was  proved,  but  no 
actual  promise  on  tlie  woman's  side,  yet 
he  held  that  tliei-e  was  sufficient  evidence 
to  prove  that  the  woman  likewise  prom- 
ised, because  she  carried  herself  as  one 
consenting,  and  approving  the  promise  of 
the  man.  This  question  was  much  dis- 
cussed in  the  case  of  Wightman  r.  Coates, 
15  Mass.  1.  That  was  an  action  of  as- 
sumpsit on  a  promise  to  many  the  plain- 
tiff, and  a  breach  thereof  b}'  refusal,  and 
having  married  another  woman.  At  the 
trial,  tlie  evidence  of  a  promise  resulted 
from  sundry  letters  written  to  the  plaintiff 
by  the  defendant,  and  from  his  attentions 
to  her  for  a  considerable  length  of  time. 
It  was  objected  by  the  defendant,  tirtit 
there  being  no  direct  evidence  of  an  ex- 

[■572  ] 


press  promise,  the  action  could  not  be 
maintained.  But  this  olyection  was  over- 
ruled by  the  judge  ;  and  the  jury  were  in- 
structed that  if,  from  the  letters  of  the  de- 
fendant read  in  evidence,  and  the  course 
of  his  conduct  towards  the  plaintiff',  they 
were  satisfied  that  there  was  a  mutual  un- 
derstanding and  engagement  between  the 
parties  to  marry  each  other,  they  might 
find  for  the  plaintiff.  To  this  ruling  and 
instruction  the  defendant  excepted,  and 
the  case  having  been  carried  up,  Parker, 
C.  J.,  delivering  the  opinion  of  the  court, 
said  :  "  As  to  the  technical  ground  upon 
which  the  objection  to  the  verdict  now 
rests,  we  entertain  no  doubts.  The  ex- 
ception taken  is,  that  there  ^yas  no  direct 
evidence  of  an  express  ])romise  of  mar- 
riage made  by  the  defendant.  The  ob- 
jection implies  that  there  was  indirect 
evidence  from  which  such  a  promise  may 
have  been  inferred  ;  and  the  jury  were 
instructed  that  if,  from  the  letters  written 
by  the  defendant,  as  well  as  his  conduct, 


CH.  XI.] 


MARRIAGE. 


*047 


of  parents  in  the  presence  of  a  daughter,  with  the  absence  of 
objection  on  her  part,  is  held  to  imply  her  consent ;  (p)  never- 
theless, language  used  to  third  parties,  amounting  to  an  ex- 
pression of  intention  to  marry  the  plaintiff,  but  not  uttered  in 
the  presence  of  the  plaintiff,  do  not  in  general  prove  a  promise 
to  marry,  (q)  But  statements  made  to  a  father,  who  had  a  right 
to  make  such  inquiries,  and  to  receive  a  true  answer,  especially 
where  corroborated  by  visits  and  the  conduct  of  the  parties,  are 
not  only  sufficient  evidence  of  a  promise,  but  although  the 
statement  of  the  defendant  is  of  a  promise  to  marry  the  plain- 
tiff in  six  months,  and  the  count  is  upon  a  promise  to  marry 
generally,  or  in  a  reasonable  time,  the  jury  may  infer  from  the 
statement  a  general  promise  to  marry,  (r) 

It  has  been  contended  that  the  promise  should  be  in  writing, 
under  the  clause  in  the  4th  section  of  the  statute  of  frauds, 
which  provides  that  no  action  shall  be  brought  whereBy  to 
charge  any  person  upon  any  agreement  made  upon  considera- 
tion of  marriage ;  but  the  courts  of  England,  after  once  so  de- 
ciding, (s)  have  since  taken  a  distinction,  *which  is  certainly  a 
very  nice  one,  between  protnises  to  marry,  and  promises  in  con- 


they  believed  that  a  mutual  cnjiafrement 
sulisisted  Itetweeu  the  parties,  liiey  ou<;ht 
to  find  for  the  jilaintift".  Tliey  made  the 
inftreuee,  and  without  douI)t  it  was  justly 
drawn.  Is  it  then  necessary  that  an  ex- 
press ])roniisc  in  direet  terms  should  he 
proved  ?  A  necessity  for  this  would  im- 
ply a  state  of  puhiie  manners  by  no  means 
desirable.  That  young  persons  of  differ- 
ent sexes,  instead  of  having  their  mutual 
engagements  inferred  from  a  course  of  de- 
voted attention,  and  a|)i)arently  exclusive 
attachment,  which  is  now  the  common 
evidence,  should  be  obliged,  before  they 
consider  themselves  bound,  to  call  wit- 
nesses, or  execute  instruments  underhand 
and  seal,  would  be  destructive  of  that 
chaste  and  modest  intercourse  which  is 
the  jiride  of  our  country  ;  and  a  boldness 
of  manners  would  probably  succeed,  l)y 
no  means  friendly  to  the  character  of  the 
sex,  or  the  interests  of  society.  A  mutual 
engagement  must  be  proved  to  support 
this  action  ;  but  it  may  i)e  proved  by  those 
circymstances  which  usually  accompany 
sucli  a  connection."  In  Ilonyman  v. 
Canipbell,  2  Dow  &  Clark,  282,  the  Lord 


Chancellor  said  :  "  I  deny  that  courtship, 
or  an  intention  to  marry,  however  ])lainly 
made  out,  can  constitute,  or,  in  the  lan- 
guage of  the  Scotch  law,  is  ecjuipollent  to 
a  promise.  Tliere  must  be  a  jm^mise, 
and  the  promise  must  be  mutual  and  bind- 
ing on  both  parties  ;  for  the  law  attaches 
on  the  promise  and  not  on  the  intention. 
But  still,  courtship  is  a  most  material  cir- 
cumstance, when  we  have  to  consider 
whether  there  was  a  promise.  When  wc 
consider  how  natural  it  is  that  lovers 
should  marry,  and  that  marriage  is  usual- 
ly the  result  of  courtship,  and  that  in  these 
cases  mutual  promises  are  so  common, 
although  courtshi]),  or  intention,  will  not 
su|iply  the  ])lace  of  a  promise,  yet  they 
come  so  near,  that  if  these  are  once  made 
out,  we  get  on  a  good  way  towards  our 
journev's  end."  See  also,  Southard  v. 
Hexfm'd,  6  Cow.  254  ;  Weaver  v..  Ba- 
eh«rt,  2  Barr,  80. 

(p)  Daniel  v.  Bowles,  2  C.  &  P.  553. 

(7)  Cole  V.  Cottingham,  8  C.  &  P. 
75. 

(r)  Potter  r.  Deboos,  1  Stark.  82. 

(s)  Philpot  V.  Wallet,  3  Lev.  65. 

[573] 


647-  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

sideration  of  marriage,  (t)  This  clause  is  not  generally  con- 
tained in  the  statutes  of  frauds  of  our  States ;  but  it  has  been 
held  in  this  country  that  a  promise  to  marry  at  the  end  of  five 
years  is  within  that  clause  of  the  statute  which  requires  that  a 
promise  not  to  be  performed  within  one  year  from  the  making 
shall  be  in  writing,  (w) 

A  contract  to  marry,  without  specification  of  time,  is,  as  we 
have  seen,  a  contract  to  marry  within  a  reasonable  time ;  each 
party  having  a  right  to  reasonable  delay,  but  not  to  indefinite 
postponement;  nor  to  delay  without  reason  or  beyond  reason. 
If  both  parties  delay  the  fulfilment  of  the  contract  unreason- 
ably, it  may  perhaps  be  considered  as  abandoned  by  mutual 
consent,  in  the  absence  of  evidence  to  negative  this  consent. 

These  contracts,  like  most  others,  may  be  on  condition  ;  and 
if  the  condition  be  legal  and  reasonable,  the  liability  of  the 
parties  under  it  attaches  as  soon  as  the  condition  is  satis- 
fied, (v)  But  it  may  easily  happen  that  the  condition  shall  be 
such  as  to  be  void,  leaving  the  contract  valid;  as  if  it  be  frivo- 
lous or  impossible,  and  evidently  introduced  by  one  party  in 
fraud  of  the  other.  And  it  may  also  happen  that  the  condition 
shall  make  the  contract  void.  Thus  contracts  to  marry  at  the 
death  of  parents  or  relations  from  whom  money  is  expected, 
and  who  are  kept  in  ignorance  of  the  contract,  are  regarded 
with  great  dislike  by  courts,  and  would  probably  be  declared 
void,  unless  the  circumstances  cleared  them  from  suspicion,  (iv) 
And  if  the  condition  were  entirely  uncertain,  or  very  remote, 
the  contract  might  be  regarded  as  made  in  restraint  of  mar- 
riage, as  it  might  prevent  either  party  from  marrying  for  a  very 
long,  or  for  an  indefinite  period  ;  and  it  would  be  held  void  on 
that  ground,  (x) 

(t)  Cork  V.  Bilker,  1  Str.  34 ;  Harrison  appearing];  that  the  marriage  was  brought 

V.  Cage,  1  Ld.  llaym.  387.  about  without  the  consent  of  the  young 

(m)  Derby    v.    Phelps,  2   New  Hamp.  woman's  parents,  who  were  then  living, 

515.  the   Lord    Chancellor    "for  that   reason 

(;;)  Cole  v.  Cottingham,  8  C.  &  P.  75  ;  alone  decreed  the  bond  to  be  delivered  up, 

Atchinson  t'.  Baker,  Peake's  Add.  Cas.  terming  it  a  sort  of  kidnapping." 

103.  (x)  Hartley  v.  Kice,  10  East,  22.    This 

(u')  Woodhouse  v.  Shcpley,  2  Atk.  539  ;  was  an  action  on  a  wager  that  the  jilaintiff 

Drury   v.  Hooke,  1  Vern.   412.      In   this  would  not   be  married   in   six  years.     It 

last  case  a  bill  was  brought  to  be  relieved  was  endeavored  to  distinguisli  this  from 

against  a  marriage  brokage  bond ;  and  it  other  contracts  in  restraint  of  marriage, 

[574] 


I 


CH.  XI.] 


MARRIAGE. 


*548-*549 


*rf  the  promise  be  to  marry  on  request,  a  request  should  be 
alleged  and  proved;  but  this  is  not  necessary  when  the  de- 
fendant is  incapacitated  from  marrying  by  his  or  her  own 
act.  {y) 

The  defences  which  may  be  urged  against  an  action  to  en- 
force a  promise  to  marry  are  very  numerous.  Consanguinity 
within  the  Levitical  decrees  in  England,  (c)  and  in  this  coun- 
try, those  within  which  marriage  is  prohibited  by  the  statutes 
of  the  several  States.  So,  the  bad  character  of  the  plaintiff;  or 
his  or  her  lascivious  conduct.  The  cases  generally  exhibit  this 
defence  where  the  woman  is  plaintiff;  but  it  ought  with  equal 
justice,  and  on  moral  as  well  as  on  public  grounds,  to  be  per- 
mitted to  the  woman  when  she  is  defendant ;  it  was  so  held  in 
the  case  of  Baddeley  v.  Mortlock,  [a)  and  undoubtedly  would 
be  so  held  in  this  country.  If  the  defence  be  general  bad  char- 
acter, evidence  of  reputation  is  receivable ;  for,  says  Lord  Ken- 
yon,  "  character  is  the  only  point  in  issue ;  *public  opinion, 
founded  on  the  conduct  of  the  party,  is  a  fair  subject  of  in- 
quiry." {b) 


on  the  ground  that  it  was  not  for  life,  but 
for  a  time  certain ;  it  was  lield,  however, 
that  a  restraint  for  a  time  certain  falls 
within  the  same  policy  of  the  law,  and 
makes  the  contract  void. 

(//)  Short  V.  Stone,  8  Q.  B.  358  ;  Caines 
V.  Smith,  15  M.  &  W.  189;  Ilamson  v. 
Cage,  1  Ld.  Raym.  386;  Mill  ward  v.  Lit- 
tlewood,  1  E.  L".  &  E.  408. 

(2)  In  Harrison  v.  Cage,  1  Ld.  Raym. 
387,  it  is  said  that  consanguinity  within 
the  Levitical  degrees  may  be  ])leaded  in 
bar  or  given  in  evidence  under  non-as- 
sum])sit.  It  has  been  sometimes  intimated 
that  previous  marriage  would  be  a  defence. 
This  must  be  on  the  ground  that  the 
promised  marriage  would  in  that  case  be 
tinlawfui,  as  in  the  case  of  consanguinity. 
But  I  take  the  true  rule  to  be,  that  if  the 
marriage  would  i)C  unlawful,  and  this  im- 
lawfulness  was  known  to  the  plaintitf 
when  making  the  contract,  then  the  plain- 
tiff can  sustain  no  action  for  the  breach  of 
it.  Now  consanguinity  within  the  pre- 
scribed degrees  may  be  presumed  to  be 
known  to  botii  parties.  Not  so  with  pre- 
vious marriage.  And  certainly  a  married 
man  wlio  jiromised  to  marry  a  single  wo- 
man, who  did  not  know  his  marriage,  is 


liable  to  an  action  for  the  breach  of  his 
promise,  for  it  was  his  own  fault  that  he 
j)romised  what  he  could  not  perform. 
This  seems  to  be  taken  for  granted  by 
court  and  counsel  in  Daniel  v.  Bowles, 
2  C.  &  P.  553. 

(a)  Holt,  N.  P.  151.  In  this  case  it 
was.  proved  that  charges  had  been  made 
against  the  moral  character  of  the  plaintiff, 
which  he  did  not  clear  away,  and  the  de- 
fendant thereon  refused  to  mairy  him. 
Gihbs,  C.  J.,  said  :  "  Having  promised  the 
plaintiff  marriage,  she  must  absolve  herself 
u])on  some  legal  grounds.  If  a  womau 
improvidently  promise  to  marry  a  man, 
who  turns  out  upon  inquiry  to  be  of  bad 
character,  she  is  not  bound  to  perform  her 
promise.  But  she  must  show  that  the 
plaintiff  is  a  man  of  had  character.  The 
accusation  is  not  enough.  Tiie  facts 
ciiarged  were  ca])able  of  proof.  The  ex- 
istence of  the  rumor  is  not  sufficient  to 
discharge  her  from  her  promise.  Without 
])roof  that  the  charges  were  founded 
she  is  not  al)solved  from  her  contract. 
But  it  affects  the  damages."  The  jury 
accordingly  retumeil  a  verdict  for  the 
plaintiff,  damages  one  shilling. 

(/))    Foulkes    r.    Sell  way,  3  Esp.  236. 

[575] 


550* 


THE    LAAV    OF    CONTRACTS. 


[book  III. 


If  the  defence  rest  on  specific  allegations  of  misconduct, 
these  must  b.e  strictly  proved  ;  (c)  and  if  the  defendant  knew 
the  general  bad  character,  or  the  specific  misconduct,  before 
making  the  promise,  they  constitute  no  defence,  [d)  False  and 
injurious  language  used  by  plaintiff  concerning  defendant  is  a 
good  defence,  [e)  So  bad  health,  if  such  as  to  incapacitate  from 
marriage,  or  render  it  unsafe  or  improper.  (/)    *Entire  deafness 


See  also,  Morgan  v.  Yarborough,  5  Louis. 
Ann.  416. 

(c)  Baddelcy  v.  Mortlock,  Holt,  N.  P. 
151. 

{d)  Irving  v.  Greenwood,  1  C.  &  P.  350. 
This  was  an  action  of  assumpsit  on  a 
promise  of  marriage.  The  promise  and 
the  breach  were  dearly  made  out.  But 
the  defendant,  to  bar  the  aetiop,  gave  evi- 
dence to  show  that  he  eventually  broke 
off  the  match,  because  he  found  that  the 
plaintiff  was  with  child  l)y  another  man. 
It  was  admitted,  that,  after  the  promise, 
the  plaintiff  had  had  a  child,  but  it  was 
contended  tliat  the  defendant  Avas  its 
father.  Abbot,  C.  J.,  in  his  summing  up 
to  the  jury,  said  :  "  If  you  think  that  the 
defendant  was  not  the  father  of  the  cliild, 
he  is  entitled  to  your  verdict ;  for  if  any 
man,  who  has  made  a  promise  of  marriage, 
discovers  that  the  person  he  has  so  prom- 
ised to  marry  is  with  chikl  by  another 
man,  he  is  justified  in  breaking  such  prom- 
ise ;  and  if  any  man  has  been  paying  his 
addresses  to  one  that  he  supposes  to  be  a 
modest  person,  and  aftenvards  discovers 
her  to  be  a  loose  and  immodest  woman,  he 
is  justified  in  breaking  any  promise  of 
marriage  that  he  may  have  made  to  her ; 
but  to  entitle  a  defendant  to  a  verdict  on 
that  ground,  the  jury  must  be  satisfied 
that  tlie  jjlaintilf  was  a  loose  and  immod- 
est woman,  and  tliat  tlie  defendant  broke 
his  promise  on  that  account ;  and  they 
must  also  be  satisfied  that  the  defendant 
did  not  know  her  chai'acter  at  tlie  time  of 
the  making  of  the  promise  ;  for  if  a  man 
Icnoivinglij  jiromise  to  marry  sucli  a  person, 
he  is  bound  to  do  so."  In  Bench  v.  Mer- 
rick, 1  C.  &  K.  463,  it  was  proved  that  the 
plaintiff  had  had  a  child  some  ten  years 
before  the  j)romise,  and  had  since  sustained 
an  ii-reproachalile  character.  Atcherlij, 
Serj.,  before  whom  the  case  was  tried, 
said  :  "  The  great  question  in  this  case 
will  be  wliethcr  you  believe  that,  in  tlie 
month  of  February,  1843,  the  defendant 
knew  the  history  of  the  plaintiff  in  regard 

[576] 


to  this  child.  If  he  did  not  know  it,  how- 
ever great  a  severity  it  may  be  on  a  wo- 
man to  rake  up  a  transaction  of  bygOne 
times,  the  defendant's  second  pica  will  be 
sustained,  and  on  that  plea  the  defendant 
will  be  entitled  to  the  verdict.  There  is 
no  imputation  whatever  on  the  character 
of  the  plaintiff  except  the  transaction  of 
1831.  If  the  defendant,  in  your  opinion, 
has  not  established  his  defence,  there  will 
then  be  the  question  of  damages  ;  and  in 
that  case,  in  consequence  of  the  misfortune 
(calling  it  b}^  no  harsher  name)  in  1831, 
the  plaintiff  cannot  be  said  to  be  entitled 
to  so  large  a  compensation  as  one  on 
whose  reputation  no  imputation  had  ever 
rested."  From  this  we  must  infer  that 
if  the  defendant  did  know  this  fact  when 
he  made  the  promise  which  he  had  broken, 
still  the  fact,  though  no  defence  would  go 
to  lessen  the  damages.  See  also,  Boynton 
V.  Kellogg,  3  Mass.  189  ;  Palmer  v.  An- 
drews, 7  Wend.  142. 

(e)  Leeds  v.  Cook,  4  Esp.  256. 

(f)  Atchinson  v.  Baker,  Peake's  Add. 
Cas'.  103,  124.  In  this  case  the  plaintiff 
was  a  widower  iqiwards  of  forty  years  of 
age,  and  the  defendant  a  widow  about  the 
same  age ;  when  the  promise  was  made, 
the  plaintiff  was  apparently  in  good  health, 
but  the  defendant  afterwards  discovered 
that  he  had  an  abscess  in  his  breast,  and 
for  that  reason  refused  to  marry  him. 
Lord  Keityon  said,  that  if  the  condition  of 
the  parties  was  changed  after  the  time  of 
making  the  contract,  it  was  a  good  cause 
for  either  party  to  break  off  the  connec- 
tion ;  that  Lord  Mansfield  had  held  that 
if,  after  a  man  had  made  a  contract  of 
marriage,  the  woman's  character  turned 
out  to  be  different  from  what  he  had  rea- 
son to  think  it  was,  be  might  refuse  to 
marry  her  without  being  liable  to  an  action, 
and  whether  the  infirmity  was  bodily  or 
mental  the  reason  was  the  same ;  it  would 
be  most  mischievous  to  compel  parties  to 
marry  who  could  never  live  liappily  to- 
gether.    The  plaintiff  was  nonsuited,  on 


CH.  XI.]  MARRIAGE.  —550 

or  blindness,  or  other  important  physical  incapacity,  occurring 
after  the  promise,  might  be  a  good  defence  at  law  ;  (g-)  so  would 
the  disposal  of  her  property  without  the  consent  of  the  defend- 
ant, and  in  a  manner  injurious  to  his  interests,  (g-g-)  It  has 
been  said,  also,  that  if  a  widow  conceals  her  previous  marriage, 
and  betroths  herself  as  a  virgin,  this  would  be  a  fraud,  and 
would  avoid  the  contract,  (h)  It  is  going  quite  far  to  consider 
this  fact  alone  as  constituting  a  fraud,  bat  it  could  seldom 
occur  but  under  circumstances  which  would  probably  deter- 
mine the  character  of  the  concealment ;  and  if  this  were  fraudu- 
lent, it  must  of  course  have  the  usual  effect  of  fraud  upon 
the  contract ;  for  if  obtained  by  fraud,  whatever  that  fraud  may 
be,  the  contract  is  void.  A  dissolution  of  the  contract  by 
mutual  consent  would  of  course  be  a  sufficient  defence,  but  it 
must  be  a  real  and  honest  consent,  (i)  But  a  precngagement 
by  the  defendant  is  no  sufficient  defence,  (J)  nor  is  the  fact  that 
the  defendant  was  married  at  the  time  of  the  promise,  but  the 
plaintiff  may  bring  an  action  immediately  upon  discovery,  (jj) 
Perhaps  it  ought  to  be  a  good  defence,  that  the  plaintiff, 
when  making  the  contract  for  the  breach  of  which  the  action 
is  brought,  was  under  an  engagement  to  another  party.  For 
instance,  if  a  woman  sues  a  man  for  a  breach  of  promise  of 
marriage,  she  must  of  course  show  that  the  promise  was  recip- 
rocated by  her;  and  if  the  defendant  could  then  show,  that 
when  she  made  this  promise  to  him  she  was  bound  by  a  pre- 
vious promise  to   another,  it  would   seem  to  be  just  that  she 

the  {ground  of  a  variance ;  but  afterwards  sonal   beauty,   was   a  suflScient   defence, 

brought  a  fresh  action,  and  rebutted  the  Id. 

defendant's  testimony  as  to   the   abscess,  {(jrj)  Taylor  y.  Pu<rh,  1  Hare,  114. 

and  recovered  £4,000  on  proof  that  the  (li)  Addison  on  Contr.  581. 

defendant  had  promised  to  settle  .£5,000  («)  See  Southard  v.  Rexford,  6  Cow. 

of  her  fortune  on  him,  and  the  residue,  264;  Kelly  v.  Kenfro,  9  Ala.  325. 

£18,000,  on  herself.     A  motion  was  then  ( /)   Harrison    v.   Ca<rc,   1    Ld.    Raym. 

made   for  a  new  trial,  on  tlie  ground  of  .387.     By  Holt,  C.J.     "Precontract  is  a 

excessive  damages,  but  the  cause  was  com-  disability,  but  it  will  not  avoid  tlie  per- 

promised.  furniance  of  your  promise,  because  it  pro- 

(7)  Short  V.  Stone,  8  Q.  B.  369.  Lord  ceeds  from  your  own  act." 
Deninan.  A  rape  wholly  without  the  ( ;'/)  Millward  v.  Littlewood,  1  E.  L.  & 
fault  of  the  woman,  would  discharge  the  E.  408.  The  consideration  was  said  to 
m.in  from  his  obligation.  Addison  on  be  that  the  plaintiff  would  remain  unmar- 
Contr.  584.  And  iii  France  it  seems  that  ried.  Pollock,  C.  B.,  said  that  the  de- 
loss  of  a  nose  would  be  sutlicient.  At  fcndant  im])liedly  ])roniised  that  there  was 
common  law  it  would  hardly  Ik-  held  that  no  impediment  to  his  performing  his 
a  misfortune,  wiiicU  merely  affected  per-  promise. 

VOL.  I.  49  [577] 


551*  THE   LAW    OF    CONTRACTS.  [bOOK  III. 

should  not  *recover  for  the  violation  of  a  contract,  her  entering 
into  which  was  a  precisely  similar  violation  of  contract.  But 
this  question  does  not  appear  to  have  been  settled  by  adjudi- 
cation. 

An  offer  to  renew  or  execute  the  contract  after  a  refusal 
should  be  no  defence;  nor  a  change  of  feeling,  nor  the  fact  that 
another  had  supplanted  the  plaintiff  in  the  affections  of  the 
defendant.  But  it  would  seem,  on  general  principles,  to  be  a 
good  defence,  that  the  promise  was  made  on  condition  that  the 
plaintiff  would  commit  fornication  with  the  defendant;  for  such 
a  promise  might  be  void  as  founded  upon  an  illegal  considera- 
tion, (k)  But  it  is  certainly  no  defence  that  the  promise  M^as 
made  after  fornication,  if  made  with  no  view  to  a  repetition  of 
the  offence,  or  before  fornication,  if  that  were  not  the  considera- 
tion of  the  promise.  If  the  defendant  promised  that  another 
person  should  marry  the  plaintiff,  it  is  no  defence  that  such 
other  person  refuses ;  because  the  defendant  promised  on  his 
own  responsibility  that  which  another  person  might  prevent 
from  being  done. 

Damages  are  peculiarly  within  the  power  of  the  jury  in  cases 
of  this  kind  ;  for  courts,  both  in  England  and  in  this  country, 
are  very  unwilling  to  set  aside  a  verdict  in  these  cases  on  the 
ground  of  excessive  damages.  And  if  the  defendant  has  under- 
taken to  rest  his  defence,  in  whole  or  in  part,  on  the  general 
bad  character,  or  the  criminal  conduct,  of  the  plaintiff,  and  fail 


(k)  This  would   seem   to   be   doubtful  of  the  plaintiff  going  to  bed  with  the  de- 

frora  Morton  v.  Fenn,  3  Doug.  211.  This  fendant,  Lord  Mans  field  said  :  "  I  thought 

was  an  action  for  breach  of  promise  of  the  objection  would  not  lie  on  two  grounds, 

marriage,   tried   before   Lord    Mansfield.  1.  That  before  the  marriage  act  this  would 

The  evidence  was,  that  the  defendant,  who  liave  been  a  good  marriage,  and  the  chil- 

was  a  man  of  fortune  in  Jamaica,  aged  dren  legitimate  by  the  rules  of  the  common 

seventy,  promised  to  marry  the  plaintiff,  a  law.     2.  I  thought  so,  because  the  parties 

widow  of  fifty-tliree,  if  she  would  go  to  were  not  in  paii  delicto,  but  this  was  a 

bed  to  him  that  night,  which  she  did,  and  cheat  on  the  part  of  the  man."    After 

lived  afterwards  with  him  a  considerable  argument,  the  court  took  time  to  consider, 

time.     It  appeared  also  that  the  defendant  and  in  the  meanwhile  recommended  the 

several  times  afterwards  repeated  his  reso-  parties  to  agree  that  the  defendant  should 

lution  to  marry  her,  but  that  he  afterwards  pay  the  plaintiff  £500,  and  on  a  subse- 

married  another  woman.     The  jury  found  cpient  day   Wallace   informed   the  court 

a  verdict  for  the  plaintiff,    with   .£2,000  that  the  ])artics  had  consented  to  that  ar- 

damages.     A  rule   nisi   for  a   new   trial  rangement.     See  also  Baldy  v.  Stratton, 

having  been  obtained,  on  the  ground  that  11  Penn.  St.  R.  316. 
it  was  iurpis  contractus,  being  on  condition 

[578] 


CH.   XI.] 


MARRIAGE. 


*552 


altogether  in  the  proof,  it  has  been  distinctly  held  that  the  jury- 
may  consider  this  in  aggravation  of  damages.  (/) 

*The  promise  is  so  far  of  a  personal  nature,  that  the  breach 
of  it  gives  no  action  to  the  personal  representative  of  the  party 
injured,  unless,  perhaps,  special  damage  to  the  estate  of  the  de- 
cedent is  alleged  and  proved,  (m)  Nor  does  it  survive  against 
the  administrator  of  the  promisor,  (n) 

Whether  in  an  action  to  recover  damages  for  the  breach  of  a 


(/)  Southard  v.  Rexford,  6  Cow.  254. 
This  was  an  ac'tion  of  assumpsit  for 
breach  of  promise  of  marriage.  Tiie  plea 
was  tlie  f^eueral  issue,  with  notice  that  tlie 
defendant  would  jjrove  in  his  defence, 
that  tiic  ])laintitF  had,  at  various  times, 
and  with  various  j)crsoiis,  specifying  tliem, 
committed'  fornication  after  the  alleged 
promise.  At  the  trial,  tlie  defendant  at- 
tempted to  prove  this  defence,  hut  failed. 
The  case  was  tried  before  Walworth,  Cir- 
cuit Justice.  The  learned  judge,  in  charg- 
ing the  jurj^  in  reference  to  the  damages, 
said  :  "  In  cases  of  this  kind  the  damages 
arc  always  in  the  discretion  of  the  jury  ; 
and  in  fixing  theamount  they  have  aright 
to  take  into  consideration  the  nature  of  the 
defence  set  up  by  the  defendant.  In  his 
defence  he  has  attempted  to  excuse  his 
al)andonment  of  the  plaintifl',  on  the 
ground  that  she  is  unchaste,  and  has  com- 
mitted fornication  wiih  diH'erent  individu- 
als. But  it  ajypears  from  the  testimony  of 
liis  own  witnesses,  that  her  character  in 
that  respect  has  not  been  tarnished  even 
by  the  breath  of  suspicion.  With  such 
a  defence  on  the  record,  a  verdict  for 
nominal  or  trifling  damages  may  be  worse 
for  her  reputation  than  a  general  verdict 
for  tlie  defendant.  If  the  defendant  has 
won  her  att'ections,  and  promised  her  mar- 
riage, and  has  not  only  deserted  her  with- 
out cause,  i)ut  has  also  spread  this  defence 
upon  the  record,  for  the  jiurpose  of  de- 
stroying her  character,  the  jury  will  be 
justified  in  giving  exemplary  damages." 
And  Siit/icrlaiid,  J.,  in  delivering  the 
opinion  of  the  Su]iremo  Court,  said  : 
"  Upon  the  fpiestion  of  damages,  the 
charge  of  the  judge  ap])ears  to  me  to  lie 
unexceptionable.  There  can  1)C  no  settled 
rule  by  which  they  arc,  in  every  case,  to 
be  regulated.  They  rest  in  the  sound 
discretion  of  the  jury,  under  the  circum- 
stances of  eacli  i)articular  case  ;  and  where 
the  defendant  attempts  to  justify  his  breach 
of  promise  of  marriage,  by  stating  upoa 


the  record,  as  the  cause  of  his  desertion  of 
the  plaintilf,  that  she  had  repeatedly  had 
criminal  intercourse  with  various  persons, 
and  fails  entirely  in  proving  it,  this  is  a 
circumstance  which  ought  to  aggravate 
the  damages.  A  verdiit  for  nominal  or 
trifling  damages,  under  such  circumstan- 
ces, would  be  fatal  to  the  character  of  the 
plaintiff;  and  it  would  be  matter  of  regret, 
indeed,  if  a  check  upon  a  license  of  this 
description  did  not  exist  in  the  power  of 
the  jury  to  take  it  into  consideration  in 
aggravation  of  damages."  In  Gough  r. 
Farr,  1  Y.  &  Jer.  477,  it  is  decided  that 
the  court  will  not,  in  an  action  for  a  breach 
of  promise  of  marriage,  grant  a  new  trial 
on  the  ground  of  excessive  damages,  un- 
less they  be  so  large  as  to  induce  tlie  court 
to  infer  that  the  jury  were  actuated  by  un- 
due motives,  or  acted  upon  a  misconcep- 
tion of  the  facts.  And  Ilullock,  1?.,  said : 
"  The  princi|)le  which  governs  the  courts 
in  cases  of  this  description  is,  not  whether 
they  tliink  the  damages  too  large,  but 
whether  they  be  so  large  as  to  satisfy  the 
court  that  the  verdict  was  jicrverse,  and 
the  result  of  gross  error,  misconception,  or 
undue  motives.  There  are,  I  think,  no 
circumstances  in  this  case  to  warrant  such 
a  conclusion.  Poverty  is  pleaded  as  a 
ground  for  inducing  the  court  to  intertere; 
I  am  not,  from  the  evidence,  satisfied  that 
the  defendant  is  unable  to  pay  the  dam- 
ages; but  even  if  he  were,  that  would  not, 
I  apprehend,  be  a  groinul  for  disturbing 
the  verdict.  These  are  cpiestions  which 
must  depend  upon  the  circumstances  of 
each  jiarticular  case  :  if  there  were  an  im- 
])utation  upon  tiie  character  of  the  ))lain- 
tiff,  and  the  damages  were  excessive,  the 
court  might  interfere  ;  nothing  of  that  sort, 
however,  ajijiears  in  this  case." 

(;/i)  Chamberlain  v.  Williamson,  2  M. 
&  S.  408. 

(n)  Stehbins  v.  Palmer,  1  Pick.  71  ; 
Smith  V.  Sherman,  4  Cush.  408. 

[579] 


553* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


promise  of  marriage,  damages  for  seduction  may  be  *recovered, 
has  been  much  questioned,  (o)  By  the  strict  rules  of  law,  they 
should,  we  think,  be  excluded,  where  the  plaintiff  was  in  actual 
or  constructive  service,  (p)  or  lived  in  a  State  in  which  the 
statute  law  gave  her  an  action  for  the  seduction,  and  not  other- 
wise ;  and  the  weight  of  authority  seems  to  be  so.  Where 
courts  held  to  this  rule  they  would  exclude  evidence  of  seduc- 
tion as  irrelevant.  But  in  most  cases  it  would  be  difficult  to 
exclude  this  entirely,  so  as  to  keep  the  fact  entirely  from  the 
jury,  without  excluding  other  evidence  to  which  the  plaintiff 
would  certainly  be  entitled.  And  if  the  jury  were  made  cog- 
nizant of  the  fact,  they  would  probably  regard  it  in  estimating 
damages ;  and  probably  courts  would  now  seldom  set  aside  a 
verdict  on  this  ground,  under  any  ordinary  circumstances. 
Evidence  that  the  parents  of  the  defendant  disapproved  of  the 
engagement  has  been  received  in  mitigation  of  damages,  (q) 
A  bill  in  equity  has  been  sustained  to  compel  a  party  to  dis- 
cover whether  he  has  promised  to  marry  the  plaintiff,  (r) 


(o)  Perkins  r.  Horsey,  1  R.  I.  493,  does 
not  permit  seduction  to  be  shown  in  ag- 
gravation of  damages.  So  Burks  I'.  Shain, 
2  Bibb,  341  ;  Weaver  v.  Bachcrt,  2  Barr, 
80.  Contra,  Paul  v.  Frazicr,  3  Mass.  73  ; 
Conn  V.  Wilson,  2  Overton,  233.  In 
Baldy  w.  Stratton,  11  Penn.  St.  R.  316, 
it  is  held  that  though  seduction  cannot  be 
given  in  evidence  in  an  action  for  breacii 
of  promise  of  marriage,  the  improper  con- 
duct of  the  defendant,  in  which  the  plain- 
tiff did  not  participate,  may  be  so  given  in 
aggravation  of  damages.  So  loss  of  time, 
and  expenses  incurred  in  preparations  for 
marriage,  are  grounds  of  damage,  directly 
incidental  to  the  breach  of  a  promise  of 
marriage,  but  not  of  special  damage.  In 
TuUidge  v.  Wade,  3  Wils.  18,  and  Foster 
V.  Schoffield,  1  Jolms.  297,  it  was  held 
that  in  an  action  for  seduction,  the  prom- 
ise of  marriage  could  not  be  given  in  evi- 
dence. But  this  rule  —  if  it  be  law  —  is 
not    usually    regarded    in    practice.     In 

[  580  ] 


Wells  V.  Padgett,  8  Barb.  324,  (published 
since  the  first  edition  of  this  work,)  it  is 
decided  that  in  an  action  for  breach  of 
promise,  the  seduction  of  the  plaintiff  is  to 
be  regarded  as  a  breach  of  the  promise  in 
all  cases  in  which  it  is  followed  by  aban- 
donment and  a  refusal  to  marry,  and  is  to 
be  considered  by  the  jury  in  estimating 
the  damages.  The  same  doctrine  is  held 
in  King  v.  Kersey,  2  Cart.  (Ind.)  402. 

(p)  That  is,  in  service  to  one  who  could 
bring  the  action.  In  Postlethwaite  v. 
Parkes,  3  Burr.  1878,  the  plaintiff  hired 
herself  to  defendant,  who  seduced  her  and 
tlicn  turned  her  away  when  pregnant,  and 
she  returned  to  her  father,  and  the  father 
brought  an  action  per  quod  servitium  ;  and 
it  was  held  that  the  action  was  not  main- 
tainable. 

(q)  Irving  V.  Greenwood,  1  C.  &  P. 
350. 

(?•)  Vaughan  v.  Aldridge,  Forrest's 
Rep.  42. 


CH.  XI.] 


MARRIAGE. 


*554 


SECTION    II. 

PROMISES    IX    RELATION    TO    SETTLEMENTS    OR   ADVANCES. 

A  promise  to  give  to  a  woman,  or  settle  upon  her,  a  specific 
sum  or  estate  on  her  marriage,  is  valid.  Marriage  is  *regarded 
as  one  of  the  strongest  considerations  in  the  law,  either  to  raise 
a  use,  or  to  found  a  contract,  gift,  or  grant,  (s)  But  such  prom- 
ises are  certainly  within  the  statute  of  frauds,  as  made  "  in  con- 
sideration of  marriage,"  (t)  although  a  promise  to  marry  may 
not  be.  They  must  therefore  be  in  writing,  in  England,  and  in 
those  of  our  States  which  have  enacted  this  clause  of  tlie  statute 
of  frauds.  And  the  celebration  of  the  marriage  is  not  such  part 
performance  of  the  contract  as  takes  it  out  of  the  statute,  (u) 
But  the  Court  of  Chancery  has  frequently  interfered  where  there 
was  a  writing,  and  in  some  instances  where  there  was  none,  to 
compel  parties  to  carry  into  effect  the  intentions  of  such  a  con- 
tract, or  the  expectations  justly  raised  by  the  conduct  and 
declarations  of  relatives  and  friends,  (v)  But  a  mere  represen- 
tation concerning  the  property  or  prospects  of  a  party  about  to 
be  married,  if  made  in  good  faith,  will  not  bind  a  party  to  make 
it  good,  even  in  equity,  althougli  the  representation  be  untrue 
in  fact,  (w)     Letters  from  parents,  or  persons  standing  in  loco 


(s)  Holilcr  v.  Dickcson,  1  Frccm.  96 ; 
Sniitli  V.  Stum.rd,  Hob.  216;  Waters  v. 
Ilowanl,  8  Gill,  202. 

(/)  llaiuUUl  V.  Mor^can,  12  Ves.  67.  In 
tlii.s  ca.sc  it  is  rtoulitcd  whether  a  settle- 
ment alter  marriajj;e,  founded  upon  a  parol 
agreement  before  marriage,  could  be  sus- 
tained against  creditors.  The  same  ques- 
tion occurred  in  Dimdas  r.  Duteiis,  1  Ves. 
Jr.  196,  and  Lord  Tlmilow  seemed  to  think 
such  settlement  might  l)e  valid.  He  says 
to  counsel :  "  I  should  be  glad  to  hear  you 
supi)ort  it,  (that  is,  his  objection  to  such 
settlement,)  though  it  is  mere  matter  of 
curiosity,  if  the  first  point  be  against  you." 
This  ([uestion  does  not  seem  to  be  dis- 
tinctly settled.  IVrhajis  the  courts  would 
take  this  distinction  ;  where  the  jiroperty 
was  the  wife's,  antl  had  come  to  the  hus- 
band by  a  marriage  made  after  a  jnomise 

49* 


to  secure  it  to  her,  a  settlement  in  fulfil- 
ment of  the  promise  would  be  sustained 
against  creditors,  because  they  lose  nothing 
by  it  ;  but  not  so  if  the  jjroperty  had  been 
originally  the  husband's. 

(it)  Dundas  v.  Dutens,  1  Ves.  Jr.  196; 
Montacute  v.  Maxwell,  1  P.  Wins.  618,  1 
Strange,  236.  In  Simmons  c.  Simmons, 
6  Hare,  3,52,  it  is  said  that  although  a  i)a- 
rol  agreement  by  the  husband,  made  be- 
fore marriage,  that  the  wife  should  possess 
certain  chattels  for  her  own  use,  is  not 
binding  upon  him,  yet  if  the  parties  vol- 
untarily phice  the  property  under  the  <lo- 
minion  of  trustees  as  part  of  the  jnoperty 
under  trust,  the  agreement  may  then  bo 
nuide  ert'ectual. 

(/•)   Hunsden  r.  Chcyncy,  2  Vcm.  150; 
Beverley  v.  Bevcrlev,  id.  131. 
•    (w)  Merewcthcr  v.  Shaw,  2  Cox,  124. 

[581] 


555*  THE   LAW    OF   CONTRACTS.  [BOOK  III. 

parentis,  promising  provisions,  if  sufficiently  specific  and  ex- 
plicit, have  been  held  to  satisfy  the  requirements  of  the  stat- 
ute, {x) 

*Contracts  have  been  frequently  declared  void,  on  the  ground 
that  they  were  in  fraud  of  settlements  and  marriage  portions, 
or  promises  thereof.  As  where  a  private  bargain  was  made 
with  the  husband,  or  even  with  husband  and  wife,  to  pay 
back  a  part  of  the  wife's  portion ;  (y)  or  to  return  a  part  of  an 
annuity  or  other  provision  apparently  given  to  a  son  to  enable 
him  to  marry;  [z)  or  to  restore  money  given  to  impart  to  one 
an  appearance  of  wealth  by  which  he  may  induce  another  to 
marry  him.  [a)  A  note  given  fraudulently  to  induce  a  marriage 
contract  is  good  against  the  maker,  [b)  So  creditors  who  con- 
ceal or  deny  debts  due  to  them  from  a  man  about  to  be  married, 
that  their  debtor  may  get  the  consent  of  the  woman  or  her 
parents  to  the  marriage,  are  bound  by  such  representations  as 
effectually  as  by  a  release,  (c)  Any  private  agreement  impair- 
ing or  avoiding  an  open  and  public  treaty  of  marriage,  is  con- 
sidered fraudulent;  and  it  is  sometimes  laid  down  as  a  prin- 
ciple, that  whoever  acts  fraudulently  in  such  cases  shall  not 
only  not  gain,  but  shall  lose  by  his  fraud. 

[x)  Bird  V.  Blosse,  2  Vent.  361  ;  Sea-  Ves.  Sen.  375.     See  also,  Jackson  v.  Du- 

good  V.  Mcale,  Free.  Ch.  561 ;  Cookes  v.  chaire,  3  T.  R.  552. 
Mascall,  2  Vern.  200  ;  Moore  v.  Hart,  1         (z)  Peyton  v.  Bladwcll,   1    Vern.  240 ; 

id.   110;    Wankford  v.  Fotlierlcy,  2  id.  Palmer  i-.  Neave,  11  Ves.  165;  Morisone 

322.     In  this  case  £3,000  were  decreed  to  v.  Arliutimot,  8  Bro.  P.  C.  247. 
be  paid  on  the  strength  of  a  letter  proved         (a)  Scott  v.  Scott,  1  Cox,  357  ;  Thom- 

to  have  been  written  by  his  (the  father's)  son   v.  Harrison,   id.   344.      In  this    hist 

direction,  wlicrein   it  was  said  he  wonhl  case  Lord  Tharlow  says  :  "  It  is  a  rule,  in 

give  ,£3,000  portion   with  his  daughter;  cases  of  frauds  on  mai-riage,  that  although 

and  that  he  was  afterwards  privy  to  the  the  husband  be  a  party  to  such  fraud,  yet 

marriage,  and  seemed  to  approve  thereof,  his  interest  is  not  to  be  affected,  since  it 

See  also  AylifFe  v.  Tracy,  2  P.  Wms.  65  ;  is  impossible  to  make  him  liable  in  respect 

Douglas  I'.  Vincent,  2  Vern.  201.     In  this  thereof,    without  involving  the   wife  and 

case  an  uncle  promised  by  letter  to  give  children,  and  the  family  upon  whom  the 

his  niece  .£1,000,  "  but  in  the  same  letter  deceit  has  been  practised.     See  also.  Gale 

he  dissuaded  her  fi'ora  marrying  the  plain-  v.  Lindo,  1  Vern.  475. 
tiff;  "  and  the  court  refused  to  decree  pay-         (h)  Montefiori  v.  Montefiori,  1  Wm.  BI. 

ment  of  the  sum,  but  left  the  plaintiff  to  363. 
his  action  at  law.  (c)  Redman  v.  Redman,  1   Vern.  348  ; 

(y)  Turton  v.  Benson,  1  P.  Wms.  496,  Neville  v.  AVilkinson,  1  Bro.  C.  C.  543. 
2    Vern.    764  ;    Pitcairn  v.  Ogbourne,  2 

[582] 


d 


CH.  XI.]  MARRIAGE.  *556 

SECTION   III. 

CONTRACTS   IN   RESTRAINT   OF   MARRIAGE. 

These  contracts  'are  wholly  void.  It  has  been  held  that  a 
promise  to  a  woman  to  marry  no  one  but  her  was  such  a  *con- 
tract.  (f/)  So  a  bond  by  a  widow  not  to  marry  again,  (e)  So 
a  wagering  contract  that  the  party  would  not  marry  within  six 
years.  (/)  But  a  promise  by  one  with  whom  a  woman  had 
cohabited,  to  pay  her  an  annuity  for  life  provided  she  remained 
single,  was  held  to  be  good,  (g) 

There  are  certain  contracts  spoken  of  in  English  books  .as 
"  marriage  brocage  or  brokerage  contracts."  They  are  contracts 
for  payment  of  money,  or  some  other  compensation,  for  the 
procuring  a  marriage  ;  and  they  are  held  to  be  void,  both  in  law 
and  equity,  as  against  policy  and  morality.  Courts  in  England 
are  very  hostile  to  any  contract  of  this  nature  or  effect ;  par- 
ticularly if  made  with  a  guardian,  or  with  a  servant,  or  one  to 
whose  selfish  and  injurious  influence  the  party  would  be  much 
exposed.  Such  a  contract  is  set  aside,  without  reference  to  the 
propriety  or  expediency  of  the  marriage.  (/<) 

(d)  Lowe  V.  Peers,  4  Burr.  2225.  3  Lev.  411,  Show.  P.  C.  76.     This  too 

(e)  Baker  v.  White,  2  Vern.  215.  arose  from  Mr.  Thvnn's  desire  to  in.arrv 
(/)  Hartley  v.  llice,  10  East,  22,  cited    Lady  Ofrle.     lie    </avc    an   ohli-ation  to 

in  note  (.r,)  p.  548.     In   Sterliiijjf  i'.  Sin-  Mrs.  Potter  for  .£1,000,  conditioned  to  jtay 

nicivson,   2    South.   756,  a   bond  to  pay  ,£500  within  three  months  after  he  should 

$1,000,  if  the  obligee  (tlie  plaintiff,)  were  marry  Lady  0;^le.     A  hill  was  brought 

not  married  within   si.K  months,  was  dc-  by  Thynn's  executors   for  relief  a^rainst 

clarcd  void.  tlie  bond.     Their  ground  was,  that  Mrs. 

(7)  Gibson    ?•.  Dickie,  3   M.  &  S.  463.  Potter   only   advised    Thynii  to  a])plv  to 

See  also,  Lloyd  v.  Lloyd,  10  E.  L.  &  E.  Brett,  so  that  she  did  nothing  to  earn  the 

139.  money,  an<l  next  that  sueli  contracts  were 

(h)  Stribblcliill  v.  Brett,  2  Vern.  445.  of  dangerous  consecjuence.     Tlie  defence 

In  tills  case  a  lea.se  was  set  aside,  "  upon  was,  that  the  "  marriage  was  suital)le  in 

surmise  that  the  consideration  of  the  le:L<e  rcsi)ect     of    their    estates,"     and    "that 

was  Col.  Brett's  (the  lessee's)  undertaking  Tiiynn's  estate  was  .£10,000  a  year,  and 

to  procure  a  marriage  to  be  had  between  he  a  gentleman  of  a  great  famiiv,  though 

Mr.  Tliynn    (the  lessor)    and  the   Lady  not  of  the  nobility."     But  the  bond  was 

Ogle,"  although   the  lease  was  not  made  declared  void  by  the  lords  reversing  the 

until  six  months  after  the  marriage  ;  as  decree  in  Chancery.     See  also.  Smith  v. 

appears  from   the  case  as  reported   in  1  Brunning,  2  Vcni.'392. 
Bio.  P.  C.  57.     Sec  also,  Hall  v.  Potter, 

[  583  ] 


557*  THE    LAW    OP    CONTRACTS.  [bOOK   III. 


SECTION    IV. 

CONTRACTS    OF    MARRIAGE. 

The  relation  of  marriage  is  founded  upon  the  will  of  God 
and  the  nature  of  man  ;  and  it  is  the  foundation  of  all  moral 
improvement,  and  all  true  happiness.  No  legal  topic  *surpasses 
it  in  importance  ;  and  some  of  the  questions  which  it  suggests 
are  of  great  difficulty. 

The  first  w^hich  presents  itself  is,  what  constitutes  a  legal 
marriage.  It  is  impossible  that  any  question  should  be  more 
important  to  any  one  in  itself,  or  in  the  consequences  which  it 
involves,  than  whether  he  or  she  is  or  is  not  a  husband,  or  a 
wife ;  and  yet  some  uncertainty  may  often  rest  upon  it,  not 
merely  from  the  peculiar  facts  of  individual  cases,  but  from  a 
want  of  precision  and  certainty  in  the  principles  or  rules  which 
decide  this  question. 

The  Roman  civil  law  declared,  that  "  siifficit  nndns  consensus 
ad  constituenda  sponsaliaP  (i)  Chancellor  Kent  quotes  another 
passage  from  the  Digest,  "  Nuptias,  non  concubitus,  sed  consen- 
sus facit,^^  and  adds :  "  This  is  the  language  equally  of  the 
common  and  canon  law,  and  of  common  reason."  [j)  If  this 
means  that  the  consent  of  the  parties  is  the  essence  of  marriage, 
and  that  the  ceremonies  of  celebration  are  but  its  form,  this  is 
undoubtedly  true.  But  it  is  said  consent  suffices  for  marriage, 
makes  marriage  ;  and  if  this  be  literally  taken,  we  suppose  it 
open  to  doubt  whether  this  be  law  in  any  of  the  countries  of 
Christendom,  at  this  moment.  Even  the  Roman  civil  law  says, 
^^  Justus  autem  nuptias  inter  se  cives  Romani  contrahunt,  qui  se- 
cundum precepta  leguni  coeuntJ"  (k)  In  Scotland  it  is,  or  was, 
the  law,  that  consent,  manifested  by  declaration  before  wit- 
nesses, and  followed  by  consummation,  constituted  a  legal 
marriage,  (l)     Hence  the  practice  of  resorting,  by  those  in  Eng- 

(«)  Diff.  Lib.  23,  tit.  1,  §  4.  (/)  It  is  not  quite  certain  that  cohabita- 

(  /)  2  Kent's  Com.  87.  tion  was  necessary  by  tlie  Scotch  huv  to 

(k)  Inst.  Lib.  1,  tit.  10.  constitute  a  legal  marriage,  if  tlie  contract 

[584] 


CH.    XI.] 


MARRIAGE. 


*558 


land  who  wished  to  escape  the  marriage  laws  of  that  country, 
to  Gretna  Green,  which  was  the  village  in  Scotland  most  ac- 
cessible from  England.  But  even  this  was  "  consensus  et  con- 
cubitus ; "  not  "  consensus  non  concubitus.''  In  England  the 
common  law  provided  no  special, form  or  mode,  but  the  whole 
matter  was  under  the  ecclesiastical  or  canon  law ;  but  the 
statutes  of  England  are,  and  for  some  time  have  been,  precise 
*and  stringent,  if  not,  as  some  there  have  thought,  severe.  In 
all  Christian  countries  of  which  we  have  any  knowledge,  and 
as  we  suppose  in  all  civilized  countries,  certain  ceremonies  are 
prescribed  for  the  celebration  of  marriage,  either  by  express 
law,  or  by  a  usage  which  has  the  force  of  law.  And  the  ques- 
tion is,  whether  a  mere  consent  of  the  parties,  even  with  mutual 
promises,  but  without  any  use  of  or  reference  to  any  of  these 
ceremonies,  is  sufficient  to  constitute  a  valid  marriage.  In  the 
case  of  Milford  v.  Worcester,  (m)  the  Supreme  Court  of  Mas- 


were  in  verha  de  prcnsenti.  For  a  very  full 
and  learned  discussion  of  the  law  of  Scot- 
land concerning  marriage,  see  Dalrj'mple 
V.  Dalrymple,  2  Haggard's  Consist.  Rep. 
54,  and  tlic  appendi.\  to  that  volume. 

(m)  7  Muss.  48.  In  this  case  Parsons, 
C.  J.,  said  :  "  Marriage  being  essential  to 
the  peace  an<l  harmony,  and  to  the  virtues 
and 'improvements  of  civil  society,  it  has 
been,  in  all  well-regulated  governments, 
among  the  first  attentions  of  the  civil 
magistrate  to  regulate  marriages,  by 
defining  tlie  characters  and  relations  of 
parties  who  may  marry,  so  as  to  prevent 
a  conflict  of  duties,  and  to  preserve  the 
purity  of  families ;  by  describing  the 
solemnities  by  wiiich  the  contract  shall  be 
executed,  so  as  to  guard  against  fraud, 
surprise,  and  seduction ;  by  annexing 
civil  rights  to  the  j)arties  and  their  issue, 
to  encourage  iTiarriage,  and  to  discoun- 
tenance wanton  and  lascivious  cohabita- 
tion, which,  if  not  dieckcd,  is  followed  liy 
prostration  of  morals,  and  a  dissolution  of 
manners  ;  and  by  declaring  the  causes 
and  the  judicature  for  rescinding  the  con- 
tract, when  the  conduct  of  either  party 
and  tiie  interest  of  the  State  authorize  a 
dissolution.  A  marriage  contracted  by 
■parties  autliorized  by  law  to  contract,  and 
solemnized  in  the  manner  prescribed  by 
law,  is  a  lawful  marriage ;  and  to  no  otlier 
marriage  are  incident  tlic  riglits  and  privi- 
leges secured  to  husband  and  wife,  and  to 


the  issue  of  the  marriage Where 

the  laws  of  any  State  have  prescribed  no 
regulationsfor  the  celebration  of  marriages, 
a  mutual  engagement  to  intermarry,  by 
parties  competent  to  make  such  a  con- 
tract, would  in  a  moral  view  be  a  good 
marriage,  and  would  impugn  no  law  of 
the  State.  But  wiicn  civil  government 
has  established  regulations  for  the  due 
celebration  of  marriages,  it  is  the  duty,  as 
well  as  the  interest,  of  all  the  citizens,  to 
confonn  to  such  regulations.  A  deviation 
from  tliem  may  tend  to  introduce  fraud 
and  surprise  in  the  contract ;  or  by  a  cele- 
bration without  witnesses  the  vilest  seduc- 
tions may  be  practised  under  the  pretext  of 
matrimony.  When,  therefore,  the  statute 
enacts  that  no  person  but  a  justice  or  a 
minister  shidl  solemnize  a  marriage,  and 
that  only  in  certain  cases,  the  parties  are 
themselves  prohibited  from  solemnizing 
their  own  man-iages  by  any  form  of  en- 
gagement, or  in  the  presence  of  any  wit- 
nesses whatever.  If  this  be  not  a  reason- 
able inference,  fruitless  arc  all  the  jirecau- 
tions  of  tiie  legislature A  mar- 
riage, merely  the  eftect  of  a  mutual 
engagement  l>ctwcen  the  jiarties,  or 
solemnized  by  any  one  not  a  justice  of  the 
peace  or  an  ordained  minister,  is  not  a 
legal  man-iagc,  entitled  to  the  incidents  of 
a  marriage  (luly  solemnized."  In  Fenton 
V.  Kced,  4  Johns.  .")4,  tlic  court  say  :  "  No 
formal  solemnization   of  marriage  is  re 


I 


559* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


sachusetts  gives  a  somewhat  elaborate  statement  of  the  reasons 
which  led  them  to  the  conclusion  that  a  marriage  is  not  valid 
if  it  do  not  conform  to  the  statutory  requirements.  In  New 
Hampshire,  in  the  case  of  Clark  v.  *Clark,  (n)  the  court  say : 
"  But  in  most  governments  the  contract  is  held  to  be  valid  and 
binding,  notwithstanding  it  is  entered  into  with  no  rites  or 
ceremonies."  But  they  had  said  before,  "  it  is  a  contract  and 
relation  —  to  be  regulated  —  not  by  the  mere  will  of  the  par- 
ties, but  by  the  general  provisions  of  the  municipal  law."  But 
how  can  a  contract  be  said  to  be  regulated,  not  by  the  mere 
will  of  the  parties,  but  by  the  provisions  of  law,  if  the  mere  will 
of  the  parties  controls  these  provisions,  and  they  have  no  force 
or  effect  whatever,  if  only  the  parties  chose  to  disregard  them. 

That  evidence  of  marriage,  from  cohabitation,  acknowledg- 
ment by  the  parties,  reception  by  the  family,  connection  as  man 
and  wife,  and  general  reputation,  is  receivable  in  nearly  all 
civil  cases,  has  been  distinctly  held,  (o)  This,  however,  pro- 
ceeds upon  the  ground  of  the  actual  probability  of  a  regular 
marriage,  where  such  evidence  exists.  In  New  York  this  pre- 
sumption has  been  pushed  very  far.  [p) 


quisite.  A  contract  of  marriage  made 
per  verba  de  jmesenti  amounts  to  an  actual 
marriage,  and  is  as  valid  as  if  made  in 
Jacie  eccleske."  The  opinion  was  probably 
given  by  Mr.  Chief  Justice  Kent,  who 
uses  the  same  language  in  the  first  edition 
of  his  commentaries.  But  the  remark  is 
somewhat  obiter,  and  perhaps  did  not  re- 
ceive the  particular  attention  of  the  court ; 
the  case  being  decided  on  the  ground  that 
the  circumstances  of  the  case  warranted 
an  inference  of  actual  mairiage. 

(h)  10  New  Hamp.  383. 

(o)  Read  v.  Passer,  1  Esp.  213,  Peake's 
Cas.  231 ;  Hervey  v.  Hervcy,  2  Wm.  Bl. 
877;  Leader  v.  Barry,  1  Esp.  3.53.  In 
Morris  V.  Miller,  4  Burr.  2058,  Lord 
Mansfield  held  that  proof  of  marriage  from 
cohabitation,  name,  and  reception  of  the 
woman  by  everybody  as  the  man's  wife, 
was  certainly  receivable  in  all  cases  except 
two,  one  a  prosecution  for  bigamy,  and  the 
other  an  action  for  criminal  conversation  ; 
and  this  last,  he  says,  is  a  sort  of  criminal 
action. 

(;;)  Fenton  v.  Reed,  4  Johns.  52.  The 
only  point  in  controversy  in  this  case  was 

[58G] 


whether  the  defendant  was  the  widow  of 
one  William  Reed.  It  appeared  that  in 
the  year  1785  she  was  the  lawful  wife  of 
one  John  Guest.  Some  time  in  that  year 
Guest  left  the  State  for  foreign  parts,  and 
continued  absent  until  some  time  in  the 
year  1792,  and  it  was  reported"  and  gener- 
ally believed  that  he  had  died  in  foreign 
parts.  During  the  year  1792  the  defend- 
ant was  married  to  Reed,  and  afterwards 
in  the  same  year  Guest  returned  to  the 
State  of  New  York,  and  continued  to  re- 
side therein  until  June,  1800,  when  ho 
died.  He  did  not  object  to  the  connection 
between  the  defendant  and  Reed,  and  said 
that  he  had  no  claim  upon  her,  and  never 
interfered  to  disturb  the  harmony  between 
them.  After  tlio  death  of  Guest,  the  de- 
fendant continued  to  cohabit  with  Reed 
until  his  death  in  September,  1806,  and 
sustained  a  good  reputation  in  society ; 
but  no  solemnization  of  mairiage  was 
proved  to  have  taken  place  between  the 
defendant  and  Reed  subsequent  to  the 
death  of  Guest.  Upon  these  fiicts  the 
court  held  tliat  the  marriage  of  the  defend- 
ant with  William  Reed,  dui-ing  the  life- 


CH.  xr.] 


MARRIAGE. 


560-*561 


Mr.  Chancellor  Kent,  in  the  fifth  and  subsequent  editions  of 
his  Commentaries,  says :  "  If  the  contract  be  made  per  verba 
de  praesenti,  and  remains  without  cohabitation,  or  if  made  per 
verba  de  futuro,  and  be  followed  by  consummation,  it  amounts 
to  a  valid  marriage,  in  the  absence  of  alt  civit  regulations  to  the 
contrary.''^  (q)  In  his  first  four  editions  he  omitted  the  words 
which  we  have  italicized.  But  these  words  seem  to  us  extremely 
material.  They  make  the  statement  accurate  and  certain. 
They  leave,  however  the  real  question  undecided  for  all  prac- 
tical purposes ;  for  in  what  civilized  land  is  there  an  absence  of 
all  civil  regulations  to  the  contrary  ?  In  the  case  of  Jewell's 
Lessee  v.  Jewell,  which  came  before  the  Supreme  Couri  of  the 
United  States,  (r)  on  error  from  the  Circuit  Court  for  the  Dis- 
trict of  South  Carolina,  this  precise  question  came  up.  The 
court  below  cited  the  above  passage  from  Kent,  but  from  an 
early  edition,  and  therefore  without  the  very  material  clause  we 
italicize,  and  instructed  the  jury  that  this  was  law.  Exceptions 
were  taken,  and  the  case  was  carried  to  the  Supreme  Court  of 
the  United  States,  where  Taney,  C.  J.,  in  giving  the  opinion  of 
the  court,  refers  to  this  instruction,  and  says :  "  Upon  the  point 
thus  decided,  this  court  is  equally  divided  ;  and  no  opinion  can 
therefore  be  given."  (s)     In   consequence  of  this  *decision,  Mr. 


time  of  Jolin  Guest,  was  null  and  void ; 
tliat  slic  was  then  the  lawful  wife  of  Guest, 
and  eontinued  so  until  his  death  in  1800; 
but  that  the  fiicts  and  circumstances  of  the 
case  were  sufficient  to  authorize  a  jur}'  to 
infer  that  an  actual  marriaj^'C  took  ])lace 
between  the  defendant  and  Reed  sul)se- 
quent  to  the  death  of  Guest.  See  also 
Starr  v.  Peck,  1  Ilill,  270.  In  this  case, 
on  a  ([ucstion  as  to  the  lejjjitimacy  of  A,  it 
appeared  that  her  jiarents  had  been  inti- 
mate in  the  way  of  courtshi|)  for  nearly  a 
year  before  her  l)irth  — that  they  intended 
to  1)1"  nuirried  —  that  tlie  father  bein;::  ^ 
seafariuj;  man,  left  on  a  voya;,^e,  and  was 
accidentally  detained  longer  than  he  ex- 
pected —  that  A  wivs  bom  a  few  days  be- 
fore his  return  —  that  within  a  week  or  so 
afterwards  they  were  publicly  nuirried  by 
a  clerirymau  —  that  they  subseciuently  co- 
habited as  husband  and  wife  for  many 
years,  and  until  their  sei)aration  l)y  death, 
always  treating  A  as  their  le;ritimatc  child. 
The  court  held  that  these  facts  were  suf- 


ficient to  warrant  a  juiy  in  finding  that  a 
marriage  in  fact  existed  jjrevious  to  A's 
birth,  notwithstanding  the  ceremony  which 
took  place  afterwards.  Bronson,  J.,  dis- 
sented. Sec  also  Piers  r.  Piei"s,  2  House 
of  Lords  Cases,  331 ;  Clayton  v.  Wardell, 
4  Coms.  230. 

(r/)  2  Kent's  Com.  87. 

\r)  1  How.  219,  2.34.  In  this  ca.se,  and 
in  Londonderry  v.  Chester,  2  New  Hamp. 
268,  all  the  leading  authorities  upon  this 
difficult  question  iu-e  cited. 

(.s)  In  the  case  of  The  Queen  v.  Mil- 
lis,  10  C.  &  Fin.  534,  on  appeal  from  Ire- 
land to  the  House  of  Lords,  the  lords  were 
equally  divided  on  the  same  question ; 
Lord  BroiKjhdm,  Lord  Penman,  and  Lord 
CampMl,  Ix'ing  in  favor  of  the  validity  of 
the  marriage  at  common  law,  and  Lord 
Li/ndhurst,  Lord  Votiinlmni,  and  Lord 
Alilni/cr,  against  it.  Tiie  (picstioii  had 
been  rcfeiTcd  by  the  lords  to  the  judges, 
and  Tindall,  C.  J.,  in  behalf  of  the  judges, 
gave  their  uuanimous  opinion  agaiust  tho 

[587] 


561- 


THE   LAW    OF   CONTRACTS. 


[book  III. 


Kent  added  in  his  next  and  subsequent  editions  the  words  we 
have  italicized  in  the  extract  from  his  Commentaries  ;  and  also, 
from  a  cautiousness  that  was  certainly  carried  to  an  extreme, 
stated  in  a  note  that  "  the  Supreme  Court  were  equally  divided 
in  respect  to  the  above  paragraph  or  proposition  in  the  text;" 
but  the  precise  proposition  in  the  text,  that  is,  with  the  added 
clause,  was  never  before  the  court ;  nor  do  we  think  that  any 
court  would  have  been  divided  upon  it.  Their  division  was 
upon  the  question  whether  such  a  contract  of  marriage  be  valid 
without  reference  to  the  presence  or  absence  of  municipal  regu- 
lations, and  this  question  must  therefore  be  considered  as  an 
open  one.  In  Clayton  v.  Wardell,  4  Comst.  230,  it  is  declared 
to  be  the  rule  of  the  common  law,  that  "  a  valid  marriage  may 
exist  without  any  formal  solemnization  ;  "  but  the  marriage  in 
that  case  was  denied  for  other  reasons  ;  and  we  know  of  no 
case  in  which  a  mere  agreement  to  marry,  with  no  formality 
and  no  compliance  with  any  law  or  usage  regulating  marriage, 
is  actually  permitted  to  give  both  parties  and  their  children  the 
rights,  and  lay  them  under  the  obligations  and  liabilities,  civil 
and  criminal,  of  a  legal  marriage,  [t)  It  may  be  remarked  that 
the  practice  of  the  courts  in  this  country,  in  one  respect,  seems 
directly  opposed  to  the  rule  that  "  if  the  contract  be  made  per 
verba  de  futuro,  and  be  followed  by  consummation,  it  amounts 
to  a  valid  marriage,  and  is  equally  binding  as  if  made  in  facie 
ecclesicer  (u)  For  a  very  large  proportion  of  the  cases  in  which 
an  action  is  brought  for  breach   of  promise  of  marriage  come 


validity  of  the  marriage,  and  held,  that  by 
the  law  of  England,  as  it  existed  at  the 
time  of  tlic  marriage  act,  a  contract  of  mar- 
riage per  I'erba  de  pnesmti  was  indissoluble 
between  tlie  parties  themselves,  and  af- 
forded to  either  of  them,  by  application  to 
the  spiritual  court,  tlie  power  of  compel- 
ling tlie  solemnization  of  an  actual  mar- 
riage ;  but  tluxt  such  contract  never  con- 
stituted a  full  and  complete  marriage  in 
itself,  unless  made  in  tlie  presence  and 
with  the  intervention  of  a  minister  in 
holy  orders.  The  civil  contiact  and  the 
religious  ceremony  were  both  necessary  to 
a  perfect  marriage  by  the  common  law. 

(t)  It  would  be  impossible  to  discuss 
this  subject  fully,  eitlier  in  the  text  or  in 
the  notes,  without  occupying  too  large  a 

[588] 


space.  I  would  refer,  therefore,  to  a  very 
elaborate,  and,  as  I  thinlc,  accurate  in- 
vestigation of  the  authorities  and  tlie  law, 
in  Jacop's  Addenda  to  Roj)cr  on  Husband 
and  Wife,  vol.  2,  pp.  445  to  475.  I  can- 
not but  think  that  he  places  upon  strong 
grounds  his  conclusion  that  a  contract  of 
marriage  in  verba  de  pra'senti,  without  cere- 
mony or  celebration  of  any  kind,  does  not 
constitute  a  valid  marriage  at  common 
law. 

(!<)  In  Queen  r.  Millis,  10  C.  &  F.  534, 
it  seemed  to  be  the  universal  opinion  that 
marriage,  per  verba  de  futuro  cum  copula, 
and  marriage  per  verba  de  pra'senti  have  ab- 
solutely the  same  validity,  force,  and 
effect,  Avhatever  that  may  be.  Pratt,  J., 
in  Clayton  v.  Wardell,  denies  this. 


CH.  XI.]  MARRIAGE.  *562 

within  this  definition.  The  man  promised  marriage,  the  wo- 
man accepted  and  retm-ned  the  promise,  and  thereupon  yielded 
to  his  wishes.  It  is  a  question,  which  we  have  already  consid- 
ered, how  far  the  seduction  may  be  given  in  evidence,  in  this 
*action  to  swell  the  damages ;  but  in  some  way  or  other,  if  the 
fact  exists  it  is  usually  brought  out.  Then  it  becomes  a  case  of 
marriage,  falling  within  that  rule.  But  such  a  defence  was 
never  made  by  the  party,  nor  interposed  by  the  court.  It  is  true 
that  the  man  would  not  be  likely  to  make  this  defence,  for  that 
would  be  to  acknowledge  himself  the  husband  of  the  plaintiff. 
But  if,  in  such  an  action,  it  should  appear  that  the  parties  had 
celebrated  a  regular  marriage,  in  facie  ecclesicc,  and  were  un- 
questionably husband  and  wife,  certainly  the  court  would  not 
wait  for  the  defendant  to  avail  himself  of  that  fact,  but  as  soon 
as  it  was  clearly  before  them  would  stop  the  case.  For  if  they 
were  once  married,  no  agreement  of  both  parties,  and  no  waiver 
of  both  or  either,  would  annul  the  marriage.  And  the  circum- 
stance that  this  objection  is  never  made,  where  it  appears  that 
there  was  a  mutual  promise  and  subsequent  cohabitation, 
would  go  far  to  show  that  the  courts  of  this  country  do  not  re- 
gard such  a  contract,  although  followed  by  consummation,  as 
equivalent  to  a  marriage  in  which  the  formalities  sanctioned 
by  law  or  usage  are  observed.  It  might  be  added  that  such  a 
provision  as  that  contained  in  the  Revised  Statutes  of  Massa- 
chusetts, (v)  (which  has  been  elsewhere  enacted,)  would  seem 
to  be  wholly  unnecessary,  if  words  of  present  contract,  with 
consummation,  were  all  that  is  needed  to  render  marriage 
valid. 

In  a  late  case  in  Massachusetts  (vv)  the  court  say:  "But 
in  the  absence  of  any  provision  declaring  marriage  not  cele- 
brated in  a  prescribed   manner  or  between  parties,  of  a  certain 

■  ((•)  Ch.  75,  sect.  24.  Tlic  provision  inform;ility  in  the  manner  of  entering  the 
contained  in  that  section  is  as  follows:  intention  of  nianiajje,  or  in  the  puMiiation 
"No  marriage  solemnized  before  any  per-  of  the  hanns  ;  provided,  that  the  marriage 
son  professing  to  be  a  justice  of  the  peace,  be  in  other  respects  lawful,  and  be  Con- 
or a  minister  of  the  gospel,  shall  he  summated  with  a  full  belief,  on  the  |>art  of 
deemed  or  adjudged  to  lie  void,  nor  shall  the  persons  so  married,  or  of  either  of 
the  validity  thereof  be  in  any  way  affected,  them,  that  tliey  have  been  lawfully  joined 
on  account  of  any  want  of  jurisiliction  or  in  marriage." 

authority   in    such    supposed    justice    or         (it)  Parton  f.  Ilervcy,  1  Gray,  110. 
minister,  or  on  account  of  any  omission  or 

VOL.  I.  ■  50  [  589  ] 


563*  THE   LAW   OF   CONTRACTS.  [bOOK  III. 

age  absolutely  void,  it  is  held  that  all  marriages  regularly  made 
according  to  the  common  law  are  valid  and  binding,  although 
had  in  violation  of  the  specific  regulations  imposed  by  statute." 
This  language  differs  somewhat  from  any  used  elsewhere,  but 
it  leaves  the  question  undetermined,  because  it  does  not  decide 
how  marriages  are  to  be  "  regularly  made  according  to  the  com- 
mon law  ;  "  and  what  is  more  important,  the  words  of  the  court 
must  be  considered  in  reference  to  the  case  before  them,  which 
was  whether  a  marriage  otherwise  valid,  could  be  avoided  by 
the  fact  that  the  wife  being  but  thirteen  years  of  age  was  mar- 
ried without  the  consent  of  her  parents,  which  marriage  the 
magistrate  was  on  that  account  prohibited  from  solemnizing, 
under  a  penalty.  The  court  determined  that  in  Massachusetts 
the  common  law  rule  which  fixes  twelve  as  the  age  of  consent 
of  females  and  fourteen  of  males,  prevails. 

But  a  precise  compliance  with  all  the  requirements  of  law 
has  not  been  deemed  necessary;  and  in  some  important  pro- 
visions it  has  been  held  that  a  disregard  of  them  was  punishable, 
but  did  not  vitiate  the  marriage ;  as  the  want  of  consent  of 
parents  or  guardians  where  one  party  is  a  minor,  or  an  omission 
of  the  publication  of  banns.  The  essential  thing  seems  to  be 
the  declaration  of  the  consent,  by  both  parties,  before  a  person 
authorized  to  receive  such  declaration,  by  law.  (iv) 

*Consent  is  the  essence  of  this  contract,  as  of  all  others.  It 
cannot  be  valid,  therefore,  if  made  by  those  who  had  not  suffi- 
cient minds  to  consent ;  as  by  idiots  or  insane  persons,  (x) 
Such  marriages  are,  doubtless,  void  at  common  law,  and  by  the 
statutes  of  many  States.  It  is  usual,  however,  and  far  better, 
that  the  marriage  should  be  declared  void  by  a  competent  tri- 
bunal, after  a  judicial  ascertainment  of  the  facts.  Courts  hav- 
ing full  equity  powers  may  make  this  inquiry  and  decree,  (t/) 


(iv)  Parton  v.   Hervey,  1    Gray,   119;  authorities  arc  cited  to  that  effect.     And 

Miiford  V.  Worcester,  7  Mass.  48*;  Ligo-  in  Shat'her  ?;.  Tiio  State,  20  Ohio,  1,  it 

nia  V.  Buxton,  2  Grcenl.  102;  London-  was  held  tliat  marriages  by  boys  under  18 

derry  v.  Chester,  2  N.  H.  268.  and  girls  under  14  years  of  age  are  invalid 

(r)  Elliott  V.  Gurr,  2  rhillimore,  19;  unless  confirmed  by  cohal)itaiion   subse- 

Browning  v.  Eeane,  id.  69  ;  True  v.  Ran-  quent  to  those  ages,  and   do  not  subject 

ney,  1  Foster,  52.     But  it  is  said  in  Vin.  the  parties  marrying  to  tlie  punishment  of 

Abr.  Marriage,  (D.)  pi.  3  :  "  If  an  idiot  bigamy  upon  remarrying, 
contracts  marriage  it  shall  bind  him,"  and         (y)  "Wightman  v.  Wightraan,  4  Johns. 

[590] 


CH.  XI.]  MARRIAGE.  *5()4 

But  some  of  the  States  have  provided  for  doing  this  by  common 
law  courts. 

From  the  same  necessity  of  consent,  a  marriage  procured  by 
force  or  fraud  is  also  void  ;  but  the  force  and' fraud  must  be 
certain  and  extreme,  (c)  So  if  another  husband  or  wife  of  either 
of  the  parties  be  living,  (a)  Bigamy,  or,  as  it  should  be  called, 
polygamy,  is  an  indictable  offence  in  all  the  States;  but  excep- 
tions are  made  in  cases  of  long  absence,  with  belief  of  the  death 
of  the  party,  &c.  But  these  exceptions  to  the  criminality  of  the 
act  leave  the  question  as  to  the  validity  of  the  second  marriage 
as  they  were  before,  {b)  So  if  the  parties  are  within  the  pro- 
hibited degrees  of  kindred,  (c)  The  age  of  consent  to  marriage, 
by  the  rules  of  the  common  law,  as  stated  by  Coke,  (d)  is  four- 
teen for  the  male,  and  twelve  for  the  female ;  these  rules  are 
borrowed,  perhaps,  from  the  *Roman  law,  with  which  tliey 
agree ;  although  the  Roman  law  appears  to  have  provided  also 
that  parties  were  marriageable  whenever  they  had  arrived  at 
puberty.  If  the  marriage  take  place  when  one  is  of  sufficient 
age  —  as  the  husband  of  fifteen  —  and  the  other  within  the  age 
of  consent, — as  the  wife  of  ten,  —  when  the  wife  reaches 
twelve,  the  husband  may  disagree  and  annul  the  marriage. 
Such,  at  least,  is  the  rule  as  laid  down  by  Coke,  (e)  He  adds 
that  they  cannot  disagree  before  the  age  of  consent ;  but  this 

Ch.  343.     In  True   v.  Raiincy,  1  Foster,  was  not  void  hv  the  Law  of  England  be- 

52,  the  court  assumed  the  power  of  de-  fore  the  statute  of  6  Wm.  4,  c.  54,  thougli 

(•hiring  a  man-iage  null  for  iinheeility  of  it  was  voichihle  by  ])roccss  in  the  ccciesias- 

tlic   woman,    on   a   petition  of  her  next  tical  court.     In    Bonham  >\   Badgley,  2 

friend.     So  also   in   a  case  of  insanity  of  Oilman,  ()22,  it  was  decided  tliat  a  mar- 

the  wife  wliich  was  kept  concealed  from  riage  between  a  man  and  the  (hiugiiter  of 

her  husband   by  her  friends.     Kcyes  v.  his  sister,  although  within  tlie  j^'vitical 

Keyes,  2  Fost.  .554.  degrees,  was  not  void,  but  only  voidable ; 

(z)  Dab-ymple   v.   Dalr\'mi)le,   2  Hag.  tiiat  for  all  civil  purposes  such  marriages 

Consist.  Rep.  104  ;  Sullivan  c.   Sullivan,  are  valid  until  sentence  of  nullity  or  sepa- 

id.  24f).  ration  ;    and   that   this   sentence   can    be 

(rt)   Uiddlesden  v.  Wogan,   Cro.  Eliz.  passed  only  during  the  lives  of  both  par- 

8.18;  Pride  (!.  Earl  of  Hath,  1  Salk.  120 ;  tics.     The"  children,    therefore,    of    such 

Martin's  Heii-s  ?•.  Martin,  22  Ala.  86.  marri.ige,  after  the  death  of  cither  party, 

(/')  So  at  least  say  the  court  in  Fcnton  no  sentence  of  nullity  having  been  ])assc(l 

I'.  Reed,  4  Johns.  53.  before  such  death,  arc  legitimate;  and  if 

(r)  Sutton    i\   Warren,   10   Met.  .451.  the  husband  die,  the  wife  may  have  her 

In   this  case  it  was  /icld  that  the  inter-  dower. 

marriage  of  a  man  and  his  mother's  sister,  (d)  Co.   Litt.  78,  b.     And    sec   Partoil 

though  void  by  the  law  of  Massachusetts,  v.  Hcrvey,  1  tJray,  119. 

is  not  incestuous  bv  the  law  of  nature,  and  (e)  Co.  Litt.  79,  b. 

[591] 


565* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


may  be  doubted  ;  and  the  Revised  Statutes  of  Massachusetts 
seem  to  assume  that  they  may  disagree  within  nonage. 

The  consent  of  parents  or  guardians  to  the  marriage  of  minors 
is  required  by  the  Roman  law,  the  marriage  acts  of  England, 
and  by  the  statutes  of  some  of  our  States ;  but  not  by  common 
law,  nor  in  England  until  the  stat.  of  26  Geo.  2,  ch.  3o.  The 
English  statute  makes  the  marriage  of  minors,  without  such 
consent,  absolutely  void.  In'  this  country  that  would  depend 
upon  the  statutes  of  the  several  States.  Generally,  if  not  uni- 
versally, the  marriage  would  be  held  valid,  although  the  person 
celebrating  it  might  be  punishable.  (/) 

It  has  been  held  in  England  that  a  marriage,  not  lawfully  cele- 
brated, by  reason  of  the  fraud  of  one  of  the  parties,  shall  yet  be 
held  valid  in  favor  of  the  innocent  party.  As  in  case  of  a  mis- 
nomer of  the  wife  by  the  husband's  fraud,  (g)  So  where  the 
husband  falsely  imposed  upon  the  wife  a  forged  or  unauthor- 
ized license,  and  a  pretended  clergyman,  (h)  In  *the  statutes 
of  some  of  the  States  there  are  provisions  to  the  same  effect. 

The  operation  of  the  lex  loci  upon  marriage,  and  the  rights  of 
the  married  parties,  has  given  rise  to  some  questions,  which  we 
shall  consider  in  our  second  volume,  when  we  treat  of  the  Law 
of  Place. 


(/)  It  has  been  so  decided  in  Massa- 
chusetts.    Parton  v.  Hervey,  1  Gray,  119. 

((/)  King  V.  Wroxton,  4  B.  &  Ad.  640. 
It  is  held  in  this  case  that  a  marriage  is 
not  void  because  the  banns  were  published 
under  false  names,  unless  both  parties 
were  privy  to  such  folse  publication.  Sec 
also  King  v.  Billingshurst,  3  M.  «&  S.  250. 
In  a  note  to  this  case  are  given  at  lengtli 
Frankland  v.  Nicholson,  Pougett  v.  Toni])- 
kins,  and  Mather  v.  Ney,  decided  by  Sir 
W.  Scott,  in  all  of  wliich  the  Ijanns  were 
erroneous  in  the  name  of  one  of  the  par- 
ties, and  the  marriage  was  declared  void 
ah  initio.  But  in  the  two  first  cases  tlicre 
were  circumstances  of  fraud.  Hefter  v. 
HefFer,  Tree   v.   Quin,  and   Mayhew  v. 

[592] 


Mayhew,  decided  by  the  same  judge,  arc 
also  cited  in  the  same  note.  In  these 
there  was  an  error  of  the  name,  but  tiie 
marriages  were  not  annulled.  From  all 
the  cases  taken  together,  it  miglit  perhaps 
be  inferred  that  a  mere  error  in  tlie  name 
woubl  not  make  a  inarriage  void,  (espe- 
cially if  a  name  acquired  by  reputation 
were  used,)  uidess  tlicre  were  circumstan- 
ces of  fraud,  or  other  objection.  But  in 
Cope  V.  Burt,  1  Hagg.  Consist.  438,  Sir 
W.  Scott  seems  to  insist  that  it  is  essen- 
tially necessary  that  the  banns  siiould  be 
publislied  in  the  true  names. 

(h)  Dormer  v.  Williams,  1  Curteis, 
870 ;  Lane  v.  Goodwin,  4  Q.  B.  361  ; 
Clowes  V.  Clowes,  3'Cm-teis,  185. 


CII.  XI.]  MARRIAGE.  566-*567 


SECTION    V. 

DIVORCE. 

Neither  the  common  law  nor  the  equity  courts  of  England 
decree  divorce.  Almost  all  questions  of  marriage  are  there 
decided  by  the  spiritual  courts,  having  been  originally  under 
the  cognizance  and  jurisdiction  of  the  bishops.  The  spiritual 
courts  sometimes  decree  that  a  marriage  was  void  ab  initio, 
and  sometimes  grant  a  divorce  from  bed  and  board,  but  never 
a  divorce  from  the  bond  of  marriage.  This  complete  divorce 
occurs  in  England  only  when  parliament,  by  a  private  act  made 
for  the  case,  annuls  a  marriage.  But  it  is  not  so  in  this  coun- 
try. Very  early  in  the  settlement  of  New  England,  as  we  learn 
from  Mather's  Magnalia,  the  question  was  put  to  the  clergy 
whether  adultery  was  a  sufficient  cause  for  divorce ;  and  they 
answered  that  it  was.  The  courts  of  law  thereafter  decreed 
divorce  in  such  cases,  and  this  law  and  practice  became  nearly 
universal  through  this  country.  For  many  years,  however,  a 
divorce  a  vinculo  was  granted  for  no  other  cause  than  adultery, 
the  law  being  made  to  conform  to  what  was  regarded  as  the 
positive  requirement  of  Scripture.  At  length,  however,  the' 
severity  of  this  rule  was  modified.  Divorce  a  vinculo  was  per- 
mitted for  other  causes  ;  as  desertion,  cruelty,  sentence  to  long 
imprisonment,  and  the  like.  The  law  and  practice  in  this  re- 
spect differs  in  the  different  States,  being  precisely  alike  in  no 
two  of  them.  And  in  some,  the  facility  of  obtaining  a  divorce 
has  certainly  been  carried  quite  far  enough. 

A  divorce  ft  rmc'w/o  annuls  the  marriage  altogether;  and  it 
restores  the  parties  to  all  the  rights  of  umnarried  persons,  and 
relieves  them  from  all  the  liabilities  which  grew  out  of  the  mar- 
riage, except  so  far  as  may  be  provided  by  statute,  or  made  a 
part  of  the  decree  of  divorce  by  the  courts.  Thus,  it  is  a  pro- 
vision of  some  of  our  State  statutes  on  thi^  subject,  that  the 
guilty  party  shall  not  marry  again.  And  the  court  generally 
have  power  to  decree  tenna  of  separation,  as  to  'alimony,  care 

50*  [593] 


568* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


and  possession  of  children,  and  the  like.  In  practice,  proper 
precautions  are  used  to  prevent  a  divorce  from  being  obtained 
by  collusion  ;  it  not  being  granted  merely  upon  the  consent  or 
on  the  default  of  the  party  charged,  but  only  on  proof  of  the 
cause  alleged,  (w) 

The  courts  may  also  decree  a  divorce  a  mensa  et  thoro ;  and 
this  kind  of  divorce  was  once  the  most  common.  But  most  of 
the  causes  which  formerly  only  sufficed  for  a  divorce  from  bed 
and  board,  are  now  very  generally  made  sufficient  for  a  divorce 
from  the  bongl  of  marriage.  In  general,  a  woman  divorced 
from  the  bed  and  board  of  her  husband  acquires  the  rights,  as 
to  property,  business,  and  contracts,  of  an  unmarried  woman. 
And  her  husband  is  freed  from  his  general  obligation  to  main- 
tain her,  the  courts  having  power,  which  they  usually  exercise, 
of  decreeing  such  maintenance  from  the  husband  as  his  means, 
and  the  character  and  circumstances  of  the  case  render 
proper,  (o) 


(n)  Indeed,  so  careful  are  the  courts  to 
guard  against  any  collusion  between  the 
parties,  one  of  whom  has  applied  for  a 
divorce,  that  although  the  respondent  be 
defiiulted,  yet  the  alleged  cause  of  divorce 
must  be  as  distinctly  and  satisfactorily 
proved  as  in  other  instances.  So  likewise 
must  the  fact  of  marriage.  Williams  v. 
Williams,  .3  Grecnl.  133.  And  a  divorce 
a  vinculo,  for  the  adultery  of  the  husband, 
has  been  frequently  ret'used  where  the 
onhi  proof  was  the  defendant's  admission 
of  the  foct.  Holland  r.  Holland,  2  Mass. 
154  ;  Baxter  v.  Baxter,  1  id.  .346.  And 
this  is  done  to  avoid  the  possibility  of  col- 
lusion. But  if  it  distinctly  appear  that 
the  confessions  were  given  under  circum- 
stances showing  there  was  no  collusion, 
the  defendant's  confessions  are  held  suffi- 
cient. Billings  V.  Billings,  11  Pick.  461 ; 
Vance  v.  Vance,  8  Greenl.  132  ;  Owen  v. 
Owen,  4  Hagg.  Eccl.  R.  261.  So  the 
record  of  the  conviction  of  the  party  upon 
an  indictment  for  the  same  otfence  is  ad- 
missible after  default,  and  is  sufficient 
proof  of  the  marriage  and  the  crime. 
Randall  v.  Randall,  4'Grcenl.  326  ;  Ander- 
son v.  Anderson,  id.  100.  Unless  such 
conviction  was  had  ujjon  the  testimony  of 
the  wife  as  it  might  have  been  where  the 
charge  in  the  indictment  was  an  assault 

[594] 


and  batterv  upon  her.  Woodruff  v.  Wood- 
ruff, 2  Fai'rf.  475. 

(o)  Dean  v.  Richmond,  5  Pick.  461, 
where  it  was  held  that  a  M'ife  divorced  a 
mensa  et  thoro  may  be  sued,  or  sue,  as  a 
feme  sole.  Parker,  C.  J.,  in  delivering 
the  opinion  of  the  court,  after  quoting 
from  Kent's  Commentaries,  vol.  2,  p.  136, 
as  "  a  recently  published  book,  which  I 
trust,  from  the  eminence  of  its  author,  and 
the  merits  of  the  work,  will  soon  become 
of  common  reference  in  our  courts,"  says  : 
"  So  far  as  this  opinion  relates  to  the  case 
of  divorce,  we  fully  concur  with  him,  and 
are  satisfied  that,  although  the  marriage  is 
not  to  all  purposes  dissolved  by  a  divorce 
a  mensa  et  thoro,  it  is  so  fiir  suspended  that 
the  wife  ma}'  maintain  her  rights  by  suit, 
whether  for  injuries  done  to  her  person  or 
property,  or  in  regard  to  contracts  express 
or  implied  arising  after  the  divorce ;  and 
that  she  shall  not  be  obliged  to  join  her 
husband  in  such  suit;  and  to  the  same 
extent  she  is  liable  to  be  sued  alone,  she 
being  to  all  legal  intents  a  feme  sole  in 
regard  to  subjects  of  this  nature.  Such, 
,  however,  is  not  the  law  of  England,  it 
having  *been  recently  decided  that  cover- 
ture is  a  good  plea,  notwithstanding  a 
divorce  a  mensa  et  thoro.  Lewis  v.  Lee, 
3  B.  &  C.  291.    But  the  difference  in  the 


CH.  XI.]  MARRIAGE.  -568 

administration  of  their  law  of  divorce  and  this  subject.     If  the  husband  is  not  liable 

ours,    and   the   powor  of    the    Court    of  for  the  debts  of  the  wife,  after  a  divorce 

Chancery  there  to  protect   tlie  suffering  a  inema,  the  chief  reason  for  denying  her 

party,   will   suflicicntly   account   for    the  the  right  to   sue  alone  foils."     See  also 

seeming  rigor  of  their  common  law  on  Pierce  v.  Burnham,  4  Met.  30.3. 

[595] 


569-570*  THE   LAW   OF   CONTRACTS.  [BOOK  III. 


CHAPTER  XTL 


BAILMENT. 


The  Law  of  Bailment  has  received  in  modern  times  a  more 
systematic  arrangement  than  formerly,  and  a  more  profound 
and  accurate  investigation  into  its  principles.  But  it  was 
always,  though  not  under  the  same  name,  a  branch  of  the  com- 
mon law,  and  some  of  its  principles  are  as  ancient  as  any  part 
of  that  law.  Sir  William  Jones  speaks  of  it  as  referred  to  in 
the  books  of  Moses,  and  as  quite  fnlly  developed  among  the 
Greeks.  But  in  fact,  much  law  on  the  topics  which  are  now 
considered  under  the  head  of  Bailment,  must  exist  in  all  nations 
who  make  any  approach  to  civilization.  For  there  must  always 
be  something  of  borrowing,  lending,  hiring,  and  of  keeping 
chattels,  carrying  or  working  upon  them,  for  another  ;  and  all 
this  is  embraced  within  Bailment.  The  word  is  from  the  Nor- 
man French  bailler,  to  deliver.  Whatever  is  delivered  by  the 
owner  to  another  person,  in  any" of  the  ways  or  for  any  of  the 
purposes  above  mentioned,  is  bailed  to  him  ;  and  the  law  which 
determines  the  rights  and  duties  of  the  parties,  in  relation  to 
the  property  and  to  each  other,  is  the  law  of  Bailments. 

Sir  William  Jones,  in  1781,  published  his  brief  essay  on  the 
law  of  Bailments.  This  work  first  gave  to  the  subject  sys- 
tematic form.  It  was  at  that  time  eminently  useful,  and  has 
always  been  celebrated.  As  a  literary  and  philosophical  pro- 
duction, manifesting  much  learning  in  the  Roman  civil  law,  it 
has  great  merit ;  but  as  a  law-book  for  present  use,  it  possesses 
now  less  value.  In  the  2  Anne,  Lord  Holt,  in  the  case  of 
Coggs  t'.  Bernard,  (p)  laid  the  foundations  of  this  *system  of 

{]))  2  Ld.  Raym.  909.  This  celebrated  subsequent  cases  which  relate  to  the  rc- 
case  is  referred  to  in  the  great  majority  of    sponsibility  of  a  bailee.     lu  this  case  that 

[596] 


CU.  XII.]  BAILMENT.  -570 

law,  building  it,  however,  on  principles  deducible  from  or  har- 
monizing with  existing  English  jurisprudence,  although  he 
used  an  arrangement  and  nomenclature  borrowed  from  the  civil 
law. 

A  bailee  is  always  responsible  for  the  property  delivered  to 
him ;  but  the  degree  and  measure  of  this  responsibility  vary 
from  one  extreme  to  another.  He  is  bound  to  take  care  of  the 
property ;  but  the  question  always  occurs,  what  care  ?  It  is 
obviously  impossible  to  measure  the  requirement  of  care  with 
exact  precision.  But,  for  their  assistance  in  doing  this,  courts 
have  established  three  kinds  or  degrees  of  care,  as  standards. 
There  is,  perhaps,  no  better  definition  of  these,  than  that  given 
by  Sir  William  Jones.  First,  slight  care,  which  is  that  degree 
of  care  which  every  man  of  common  sense,  though  very  absent 
and  inattentive,  applies  to  his  own  affairs  ;  secondly,  ordinary 
care,  which  is  that  degree  of  care  which  every  person  of  com- 
mon and  ordinary  prudence  takes  of  his  own  concerns  ;  thirdly, 
great  care,  which  is  the  degree  of  care  that  a  man  remark- 
ably exact  and  thoughtful  gives  to  the  securing  of  his  own 
property.  It  is  obvious  that  the  degree  of  care  required  meas- 
ures the  degree  of  negligence  which  makes  the  bailee  respon- 
sible for  loss  of  or  injury  to  the  thing  bailed.  There  are,  there- 
fore, three  degrees  of  negligence.  The  absence  of  slight  care 
constitutes  gross  negligence ;  the  absence  of  ordinary  care  con- 
stitutes ordinary  negligence ;  the  absence  of  great  care  consti- 
tutes slight  negligence.  The  general  purpose  of  the  Law  of 
Bailment  is  to  ascertain  whenever  loss  of  or  injury  to  a  thing 
bailed  occurs,  to  what  degree  of  care  the  bailee  was  bound,  and 
of  what  degree  of  negligence  he  has  been  guilty. 

For  this  purpose  bailees  are  sometimes  distributed  into  three 
general  classes,  corresponding  with   the   three  degrees  of  care 


eminent  juclf^e,  Sir  John   Holt,  may  be  were  applicable  to  the  common  law,  and 

said  to  liave  laid  the  foundation  of  the  in  statinj^  thcni   witli  preat   accurary  of 

Law  of  liailnuMit  for  Kn;;laiid.     Ilo  hor-  definition,  and  with  tlie  modifications  rc- 

rows  most,  jicriiajjs  all,  of  his  principles  (juii-ed  to  adapt  tliem  to  the  conunon  law. 

from  tlie  civil  law.     And  he  <i;avc  at  once  So  that  they  have  passed  thronirli  all  sub- 

a  proof  of  tlie  wisdom  of  that  law,  and  of  secjucnt  adjudications  with  but  little  esscn- 

his  own  sapicity  in  scizin^^  tliose  of  its  tial  change, 
principles  which  had  been  adopted  by  pr 

[597] 


571*-572* 


THE   LAW    OF   CONTRACTS. 


[book  IIT. 


and  negligence  already  referred  to.  The  first  of  these  is,  where 
the  bailment  is  for  the  benefit  of  the  bailor  alone.  In  this  class 
but  slight  care  is  required  of  the  bailee,  and  he  is  responsible 
only  for  gross  negligence.  The  second  is,  where  *the  bailment 
is  for  the  benefit  of  the  bailee  alone.  In  this  class  the  greatest 
care  is  required  of  the  bailee,  and  he  is  responsible  for  slight 
negligence.  The  tliird  is,  where  the  bailment  is  for  the  benefit 
both  of  bailor  and  bailee.  In  this  class,  ordinary  care  is  required 
of  the  bailee,  and  he  is  responsible  for  ordinary  negligence. 
We  shall  also  see,  presently,  that  there  are  bailees  of  whom  the 
utmost  possible  care  is  required,  and  who  are  responsible  for 
the  slightest  possible  negligence,  and  others  who  are  responsible 
when  guilty  of  no  negligence  wdiatever. 

Courts  and  writers  have  sometimes  spoken  of  gross  negli- 
gence as  the  same  thing  as  fraud ;  but  this  is  inaccurate,  [q) 
There  are  bailees  who  should  not  be  held  responsible  but  for 
the  grossest  negligence,  and  it  is  often  difficult  to  distinguish 
between  such  cases  and  those  where  there  is  reasonable  sus- 
picion of  fraud ;  for  such  negligence  generally  justifies  such 
suspicion.     But  that  the  law  makes  this  distinction  is  certain. 

There  have  been  many  difierent  classifications  of  the  kinds  of 
bailments  ;  (r)   but  we  prefer  and  shall  use  that  of  Sir  *William 


(17)  In  the  case  In  re  Hall  &  Hinds,  2 
M.  &  Gr.  852,  Tindal,  C.  J.,  says  :  "Lata 
culpa  or  crassa  ne<jli(jentia,  both  by  tlie  civil 
law  and  our  own,  aitproximates  to,  and  in 
many  instances  cannot  be  distinguished 
from  dolus  mains  or  misconduct."  There 
may  be  instances  in  which  these  cannot  be 
discriminated  in  fact,  but  they  are  entirely 
distinct  in  lau\  In  Wilson  v.  Y.  &  M. 
Kailroad  Co.  11  Gill  &  Johns.  58,  79,  the 
court  say  :  "  We  do  not  think  that  gross 
negligence  would  in  construction  of  law 
amount  to  fraud,  but  was  only  evidence 
to  be  left  to  the  jury,  from  which  they 
might  infer  fraud,  or  the  want  of  bond 
Jidcs."  In  Goodman  v.  Harvey,  4  Ad.  & 
El.  876,  Lord"  Denman  says  :  "  Gross  neg- 
ligence m^3'  be  evidence  of  mala  Jides,  but 
it  is  not  the  same  thing."  This  is  quoted 
with  approbation  in  Jones  v.  Smith,  1 
Hare,  71,  and  Vice-Chancellor  Wirjram 
adds  :  "  The  doctrines  of  law  and  equity 
upon  this  point  ought  to  be  concurrent." 
When  Lord  Holt,  in  Coggs  v.  Bernard, 

[598] 


says  that  gross  negligence  is  looked  upon 
as  evidence  of  fraud,  he  adopts  a  rule  of 
the  civil  law ;  he  does  not  mean  tlnit  this 
evidence  is  conclusive  ;  or,  that  if  it  be  re- 
butted, and  the  negligence  cleared  from 
all  stain  of  actual  fraud,  it  will  not  remain 
gross  negligence.  In  other  words,  gross 
negligence  is  not  fraud  by  inference  of 
law,  but  may  go  to  a  jury  as  evidence  of 
fraud. 

(/•)  There  are  two  classifications  of  the 
various  kinds  of  bailments  which  have  be- 
come very  celebrated  in  the  English  and 
American  law  —  that  of  Lord  Holt,  in  the 
case  of  Coggs  r.  Bernard,  supra,  and  that 
of  Sir  William  Jones,  in  his  essay  on 
bailments.  We  shall  give  them  both  in 
their  authors',  own  language.  Lord  Holt's 
is  as  follows  :  "  There  are,"  says  he,  "  six 
sorts  of  bailments.  The  first  sort  of  bail- 
ment is,  a  bare  naked  bailment  of  goods, 
delivered  Ijy  one  man  to  another  to  keep 
for  the  use  of  the  bailor;  and  this  I  call 
a  depositum,  and  it  is  that  sort  of  bailment . 


CU.  XII.] 


BAILMENT. 


-572 


Jones,  which  varies  somewhat  from  Lord  HoWs.  And  we  shall 
speak  successively  of 

First,  Depositum,  or  deposit  without  compensation  or  reward. 

Second,  Mandatum,  or  gratuitous  commission,  wherein  the 
mandatary  agrees  to  do  something  with  or  about  the  thing 
bailed. 

Third,  Commodatum,  or  loan,  where  the  thing  bailed  is  lent 
for  use,  without  pay,  and  is  to  be  itself  returned. 

Fourth,  PiGNUS,  or  pledge,  where  the  thing  bailed  is  security 
for  debt. 

Fifth,  LocATio,  or  hiring,  for  a  reward  or  compensation. 


which  is  mentioned  in  Sonthcotc's  case. 
The  second  sort  is,  when  floods  or  chattels 
that  are  useful  are  lent  to  a  friend  r/ratis, 
to  he  used  hyhim;  and  this  is  called  coin- 
modatum,  hecausc  the  tiling  is  to  be  re- 
stored in  speck.  The  third  sort  is  when 
goods  arc  left  with  the  hailec  to  be  used 
by  him  for  hire  ;  this  is  called  locutio  et  con- 
ductio,  and  the  lender  is  called  locator,  and 
the  borrower  conductor.  The  fourth  sort 
is,  when  floods  or  chattels  arc  delivered 
to  another  as  a  pawn,  to  be  a  security  to 
him  for  money  borrowed  of  him  by  the 
bailor  ;  and  this  is  called  in  Latin  vadium, 
and  in  Enn;lish  a  pna-n  or  pledge.  The 
fifth  sort  is  when  goods  or  chattels  arc  de- 
livered to  be  carried,  or  something  is  to  be 
done  al)out  them,  for  a  reward  to  be  paid 
by  the  person  who  delivers  them  to  the 
bailee,  who  is  to  do  the  thing  about  them. 
The  sixth  sort  is  when  there  is  a  delivery 
of  goods  or  chattels  to  somebody,  who  is 
to  carry  tiiem  or  do  something  about  them 
f/ratis,  without  any  reward  for  such  his 
work  or  carriage."  Upon  this  classifica- 
tion Sir  William  Jones  has  made  the  fol- 
lowing observations :  "  His  division  of 
bailments  into  .six  sorts  appears,  in  the  first 
l)lace,  a  little  inaccurate  ;  for,  in  trutii,  his 
jifth  sort  is  no  more  than  a  branch  of  his 
third,  and  he  might,   with   eipial  reason, 


have  added  a  seventh,  since  the  Jifih  is 
capable  of  another  subdivision.  I  ac- 
knowledge, therefore,  but  ./jt-e  species  of 
bailments,  which  I  shall  now  enumerate 
and  define,  with  all  the  Latin  names,  one 
or  two  of  which  Lord  Ifolt  has  omitted. 
1.  Dei'OSitl'.m,  which  is  a  naked  bailment, 
without  reward,  of  goods,  to  be  fcept  for 
the  bailor.  2.  Mand.vtum,  or  commission, 
when  the  "mandatary  undertakes,  without 
recompense,  to  do  some  act  about  the 
things  bailed,  or  simply  to  rarri/  them ; 
and  hence  Sir  Jlennj  Finch  divides  bail- 
ment into  two  sorts,  to  keep,  and  to  emj>lo>/. 
3.  CoMMOD.i^TL'M,  or  loun  for  use ;  when 
goods  are  l)ailed,  without  pay,  to  be  used 
for  a  certain  time  by  the  bailee.  4.  Pig- 
NONi  AccKKruM,  when  a  thing  is  bailed 
by  a  ilebtor  to  his  creditor  in  pledije,  or  as 
a  security  for  the  debt.  5.  LocATL.^f,  or 
hirinf/,  which  is  always  for  a  reward ;  and 
this  bailment  is  either,  1.  Locatio  rei,hy 
which  the  hirer  gains  the  tem))orary  use 
of  thi'.  thin;/ ;  or,  2.  Locatio  ojieris  fuciendi, 
when  work  and  luhor,  or  care  and  pains, 
are  to  be  performed  or  bestowed  on  the 
thing  delivered ;  or,  3.  Ijocatio  operis  m<r- 
cinm  vehendarum,  when  goods  are  bailed 
for  the  purpose  of  being  carried  from  jilace 
to  place,  either  to  a  public  carrier,  or  to  a 
private  person."     See  Jones  on  IJail.  35. 

[  a'J9  ] 


572-573* 


THE   LAW   OF   CONTRACTS. 


[book  ni. 


SECTION    I. 


DEPOSITUM. 


Where  a  thing  is  placed  with  a  depositary,  to  be  kept  for  a 
time,  and  returned  when  called  for,  the  depositary  to  have  no 
*conapensation,  the  benefit  of  the  transaction  is  wholly  on  the 
side  of  the  bailor,  and  the  bailee  is  liable  only  for  gross  negli- 
gence, (s)     By  the   Roman  law  he  was   answerable   only  for 


(s)  This  has  been  the  clearly  established 
law  ever  since  the  case  of  Coggs  r.  Ber- 
nard. Lord  Cuke,  however,  in  Soath- 
cote's  case,  4  Co.  Rep.  83  b,  and  in  Co. 
Litt.  89  a,  laid  down  a  diflferent  rule.  He 
stated  the  law  to  be  that  a  gratuitous 
bailee  must  answer  for  the  goods  delivered 
to  him  at  his  peril,  unless  he  has  made 
a  special  agreement  to  take  sucli  care  of 
them  onli/  as  he  takes  of  his  own  goods ; 
"  for  to  be  kept  and  to  be  safely  kept  is  all 
one  in  law."  But  the  profession  seem 
never  to  have  been  satisfied  witli  Lord 
CoAreV rule.  For  it  was  denied  to  be  law 
in  33  Car.  2,  l)y  Panbei'ton,  C.  J.,  in  the 
case  of  Rex  v.  Hertford,  2  Show.  172  ; 
and  again  in  13  Will.  3,  by  Holt,  C.  J.,  in 
the  case  of  Lane  v.  Cotton,  12  Mod.  472, 
487  ;  and  finally  it  was  expressly  overruled 
by  the  whole  Court  of  Queen's  Bench,  in 
2  Anne,  in  t'le  case  of  Coggs  v.  Bernaid. 
And  Holt,  ( '.  J.,  in  the  latter  case,  said 
that  the  rule  stated  in  the  text  had  always 
been  acted  uijon  at  Guildhall,  contrary  to 
the  oj)inion  of  Lord  Coke,  particularly 
during  all  of  Chief  Justice  Pemberton's 
time,  and  ever  since.  The  M'hole  matter 
of  tiie  liability  of  a  depositary  was  much 
discussed  in  the  case  of  Foster  v.  The  Es- 
sex Bank,  17  Mass.  479.  Tlie  facts  in 
that  case  were  that  the  plaintiff's  testator 
had  deposited  at  the  Essex  Bank,  for  safe- 
keeping, a  cliest  containing  a  large  quan- 
tity of  gold.  Some  time  after  the  dejjosit 
was  made,  the  gold  was  taken  from  the 
chest  and  put  in  a  cask,  from  whence  the 
greater  part  of  it  was  fraudulently  and 
secretly  taken  by  tlic  casliicr  and  chief 
clerk,  who  appropriated  it  to  their  own 
use,  and  afterwards  absconded,  having 
also  defrauded  the  bank  of  the  greater 
part  of  its  capital.  This  was  done  with- 
[•1300  ] 


out  the  knowledge  of  any  of  the  directors, 
or  members  of  the  corporation.     The  de- 
posit in  question  was  kept  in  tlie  vault,  in 
the  same  manner,  and  with  the  same  care, 
as  otlicr  special  deposits,  and  as  the  specie 
of  the   bank;    and   the  cashier   and   the 
clerk  sustained  fair  reputations,  until  the 
time  of  their  absconding.     The  court  held 
that  the  bank  was  not  liable.  And  Parker, 
C.  J.,  said  :  "  The  dictum  of  Lord  Coke, 
that  the  bare  acceptance  of  goods  to  keep 
implies  a  promise  to  keep  tliem  safely,  so 
that  the   depositary  will  be  liable  for  loss 
by  stealth  or  accident,  is  entirely  exploded  ; 
and  Sir  W.  Jones  insists  that  sucli  a  harsh 
l^rinciple  cannot  be  inferred  fiom  South- 
cote's  case,  on  winch  Lord  Coke  relied ; 
the  judgment  in  that  case,  as  the  modern 
civilian  thinks,  being  founded  upon  the 
particular  state  of  the  pleadings  from  which 
it  might  be  infeiTcd,  either  that  there  was 
a  special  contract  to  keep  safely,  or  gross 
negligence  in  the  depositary.     But  as  the 
judges,  Gawdy  and  Clench,  wlio  alone  de- 
cided that  cause,   said  that  the    plaintifl' 
ouglit  to  recover,  because  it  was  vot  a  spe- 
cial bailment,  by  which  the  defendant  ac- 
cepted  to  keep  them  as  his  own  proper 
goods,  and  not  otherwise;  the  inference 
whicli  Lord  Coke  drew  from  the  decision, 
that  a  promise  to  keep  implied  a  promise 
to  keep  safely,  even  at  the  peril  of  thieves, 
was  by  no  means  unwan-anted.     But  the 
decision,  as   well  as  the  dictum  of  Lord 
Coke  in  his  commentary,  were  fully  and 
explicitly  overruled  by  all  the  judges  in 
the  case   of  Coggs  v.  Bernard,  and  upon 
the  most  sound  principles.     It  is  so  con- 
sidered in  Hargrave  and  Butler's  note  to 
Co.    Litt.  n.  78,  and  all  the  cases  since 
have  adopted  the  principle,  that  a  merede- 
poailary,  without  any  special  undertaking. 


CII.   XII.] 


BAILMENT. 


574 


fraud  ;  for  if  the  bailor  thus  deposite^d  goods  with  a  negligent 
person,  he  took  upon  himself  the  risk  of  negligence.  So  it 
seems  to  have  been  held  by  Bracton,  (/)  who  copied  from  the 
Roman  law.  But  by  the  English  and  American  law,  such 
bailee  is,  as  we  have  seen,  liable  for  gross  negligence,  although 
he  may  have  been  wholly  innocent  of  any  fraudulent  intent. 
It  is  impossible  to  lay  down  any  rule  or  principle,  which  will  be 
in  all  cases  a  reliable  test  as  to  what  constitutes  gross  negli- 
gence. The  question  must  always  depend  upon  several  cir- 
cumstances ;  such  as  the  nature  and  quality  of  the  goods  bailed, 
and  the  character  and  customs  of  the  place  where  the  trust  is 
to  be  executed.  What  would  amount  to  more  than  ordinary 
diligence  in  the  case  of  a  chattel  of  great  bulk  and  little  value, 
might  be  very  gross  negligence  in  the  case  of  a  bag  of  gold 
coin,  or  a  parcel  of  valuable  papers.  Again,  what  would  be  a 
sufficient  degree  of  diligence  in  a  thinly  peopled  country,  might 
be  very  culpable  negligence  in  a  thickly  inhabited  city,  (u)  It 
has  been  very  commonly  stated  by  writers,  and  is  said  in  some 
cases,  that  a  depositary  is  not  liable,  as  for  gross  negligence,  if 
he  shows  that  he  has  taken  as  much  care  of  the  goods  of  the 
bailor    as   he  has  of  his  own  ;  but  this  is  not   law,  (uit)    and 


and  witliout  reward,  is  answerable  for  the 
loss  of  the  rroods  only  in  case  of  gross 
negligence;  which,  as  is  everywhere  ob- 
served, bears  so  near  a  resemblance  to 
fraud,  as  to  be  equivalent  to  it  in  its  effect 
upon  contracts.  Indeed  the  old  doctrine, 
as  stated  in  Southcotc's  case,  and  by  Lord 
Coke,  has  been  so  entirely  reversed  by 
the  more  modern  decisions,  that,  instead 
of  a  prcsumjUion  arising  from  a  mere  bail- 
ment, that  the  jiarty  undertook  to  keep 
safely,  and  was  therefore  eliargeable,  un- 
less he  proved  a  special  agreement  to  keep 
only  as  he  would  his  own  ;  the  bailor,  if 
he  would  recover,  must,  in  addition  to  the 
mere  bailment  alleged  and  proved,  jirove 
a  special  undertaking  to  keep  the  goods 
safely  ;  and  even  then,  according  to  Sir 
William  Jones,  the  de])ositar3'  is  liable  oidy 
in  case  of  ordinary  neglect,  which  is  such 
as  would  not  be  suffered  by  men  of  com- 
mon [trudence  and  di>cretion  ;  so  that  if 
goods  de[)Oslted  with  one  who  engaged  to 
keep  them  safely  were  stolen,  without  the 
fault  of  the  bailee,  he  having  taken  all 
reasonable   precautions    to    render    them 

VOL.  I.  51 


safe,  the  loss  would  fall  upon  the  owner, 
and  not  the  bailee." 

(/)  Lib.  3,  ch.  2,  fol.  99,  b. 

(u)  It  was  held  in  the  case  of  Dooraian 
V.  Jenkins,  2  Ad.  &  El.  256,  after  much 
consideration,  that  the  question  of  gross 
negligence  was  rather  a  question  of  fact 
for  the  jury  than  of  law  for  the  court. 
But  this  docs  not  remove  all  ditticulty 
from  the  question,  what  constitutes  gross 
negligence.  For  it  is  obvious  that  the  jury 
should  receive  instructions  from  the  court 
to  guide  them  in  forming  their  judgment. 

(nu)  It  seems  very  clear  that  this  is  not 
a  reliable  test.  For  we  have  already  seen 
that  a  depositary  is  liable  for  gross  negli- 
gence, though  a  jury  may  be  satisfied  that 
he  is  wholly  innocent  of  any  frauilulent 
intent ;  "and  it  is  obvious  that  persons 
even  who  usually  exercise  great  care,  may 
in  some  instances  he  gnilty  of  very  gross 
negligence  in  the  mainigemcnt  of  their 
own  affairs.  It  seems  also  to  be  eciualiy 
clear  tipon  the  moflmi  nutlioritirs  that  it  is 
no  defence  for  a  deiKisitary  whohas  by  his 
neligenco  lost  the  goods  intrusted  to  him, 

[  601  ] 


I 


575* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


although  *it  has  been  thought  that  the  degree  of  care  and  dili- 
gence to  be  required  of  a  bailee  should  be  regulated  to  some 


that  he  has  been  equally  nepjligent  in  re- 
gard to  liis  own  projierty.  The  first  case 
that  we  have  seen  going  to  this  point  is 
that  of  Rooth  v.  Wilson,  1  B.  &  Aid.  59. 
That  was  an  action  on  the  case  against 
the  defendant  for  not  repairing  tiie  fences 
of  a  close  adjoining  that  of  the  plaintiff, 
whereby  a  certain  horse  of  the  plaintiff, 
feeding  in  the  plaintiff's  close,  through  the 
defects  and  insufficiencies  of  the  fences, 
fell  into  the  defendant's  close  and  was 
killed.  The  defendant  pleaded  the  gen- 
eral issue,  and  on  the  trial  it  appeared 
that  the  horse  was  the  pi-operty  of  the 
plaintiff's  brother,  who  sent  it  to  him  on 
the  night  before  the  accident ;  that  the 
plaintiff  put  it  into  his  stable  for  a  short 


family,  were  not  open  on  that  day ;  and 
that  tlie  cash-box,  with  the  plaintiff's 
money  in  it,  and  also  a  much  larger  sum 
belonging  to  the  defendant,  was  stolen 
from  the  tap-room  on  a  Suncknj.  The  de- 
fendant's counsel  contended  that  there 
was  no  case  to  go  to  the  jury,  inasmuch 
as  the  defendant,  being  a  gratuitous  bailee, 
was  liable  only  for  gross  negligence ;  and 
the  loss  of  his  own  money,  at  the  same 
time  with  the  plaintiff's,  showed  that  the 
loss  had  not  happened  for  want  of  such 
care  as  he  would  take  of  his  own  ])roperty. 
But  Lord  Dcnman,  before  wliom  tlie  case 
was  tried,  refused  to  nonsuit  the  plaintiff, 
and  told  the  jury  that  it  did  not  follow 
from  the  defendant's  having  lost  his  own 


time,  and  tlien  turned  it  after  dark  into  money  at  tlie  same  time  witli  the  j)laintiff's 
his  close,  where  his  own  cattle  usually  that  he  had  taken  such  care  of  the  plain- 
grazed,  and  tiiat  on  the  follov/ing  morning  tiff's  money  as  a  reasonable  man  would 
the  horse  was  found  dead  in  the  close  of  ordinarily  take  of  his  own ;  and  that  the 
the  defendant,  having  fallen  from  one  to  fact  relied  upon  was  no  answer  to  the  ac- 


the  otlier.  The  jury  having  found  a  ver- 
dict for  tlie  plaintiff,  a  rule  for  setting 
aside  the  verdict  and  granting  a  new  trial 
was  obtained,  in  support  of  which  it  was 
contended,  among  other  things,  tiiat  the 
plaintiff  could  not  maintain  the  action, 
because,  having  taken  as  much  care  of  the 
horse  as  he  did  of  his  own  cattle,  lie  was 
not  liable  over,  and  so  had  not  sustained 
any  damage.  But  Lord  Ellenborovi/h  said  : 
"  The  plaintiff  certainly  was  a  gratuitous 
bailee,  but,  as   such,  he   owes   it   to   the 


tion,  if  they  believed  that  tlie  loss  occurred 
from  gross  negligence.  The  jury  liaving 
found  a  verdict  for  the  plaintiff',  a  rule  was 
obtained  to  set  it  aside.  The  counsel  for 
the  defendant,  one  of  whom  was  Sir  J. 
Scarlett,  in  support  of  the  rule,  said  that 
they  did  not  contend  for  the  absolute 
proposition,  that  a  gratuitous  bailee,  who 
keeps  anotlier  person's  goods  as  cai-efuUy 
as  his  own,  cannot  l)ecome  liable  for  the 
loss,  or  be  guilt}'  of  gross  negligence. 
Their  objection  to  the  verdict  was,  tliat  the 


owner  of  the  horse  not  to  put  it  into  a    plaintiff,  upon  whom  the  burden  of  proof 


dangerous  pasture ;  and  if  he  did  not  ex- 
ercise a  pro])er  degree  of  care,  he  would 
be  liable  for  any  damage  which  the  horse 
might  sustain.  Perhaps  the  horse  might 
have  been  safe  during  the  daylight,  but 
here  he  turns  it  into  a  pasture  to  which  it 
was  unused,  after  dark.  This  is  a  degree 
of  negligence  sufficient  to  render  him 
liable."  The  other  judges  being  of  the 
same  opinion,  the  rule  was  discharged. 
Afterwards  came  the  case  of  Doorman  v. 
Jenkins,  2  Ad.  &  El.  2.56.  The  plaintiff, 
in  that  case,  had  intnisted  the   defendant 


lay,  did  not  make  out  a  prima  furic  case 
of  gross  negligence.  But  the  court  unan- 
imously discharged  the  rule.  And  Mr. 
Justice  T'atmton  said  :  "  The  defendant  re- 
ceives money  to  be  kept  for  the  plaintiff. 
What  care  does  he  exercise  ?  lie  puts  it, 
together  with  money  of  his  own,  (which 
I  think  perfectly  immaterial,)  into  the  till 
of  a  public-house."  The  case  of  Tracy  ;•. 
Wood,  3  Mason,  132,  is  also  a  very  strong 
case  to  the  same  point.  It  was  an  action 
of  assumpsit  for  negligence  in  losing  7G4-i 
doubloons,  intrusted  to  the  defemlant  to 


with  a  sum  of  money  for  the  purpose  of  be  carried  from  New  York  to  Boston,  as  a 

paying  and  taking  up  a  bill  of"  exchange,  gratuitous  bailee.     The  gold  was  ]»ut  up 

It  appeared  that  the  defendant,  who  was  in  two  distinct  bags,  one  within  the  other, 

the  proprietor  of  a  coffee-house,  had  placed  and  at  the  trial,  upon  the  general  issue,  it 

the  money  in  his  cash-box,  which  was  kept  appeared   that   the    defendant,    a   money 

in  the  tap-room ;  that  the  tap-room  had  a  broker,  brought   them   on   board   of    the 

bar  in  it ;  that  it  was  open  on  Sunday,  but  steamboat  bound  from  New  York  to  Pro- 

that  the  other  parts  of  the  premises,  which  vidence  ;  that  in  the  morning  while  the 

were  inhabited  by  the  defendant  and  his  steamboat  lav  at  New  York,  and  a  short 

[  602  ] 


CH.    XII.] 


BAILMENT. 


*576-*577 


extent  *by  what  may  be  shown   to  be  his  general  character  in 
those  respects,  it  would  seern  to  be  the  better  opinion  that  *the 


time    before    sailing,   one   bag   was   dis- 
covered  to   be   lost,   and   the   otlier  was 
left  by  the  defendant  on  a  table  in  his 
valise  in  the  cabin,  for  a  few  moments 
only,  wliib;  he  went  on   deck  to  send  in- 
formation  of   the   sup])OScd    loss   to   the 
plaintiffs,  there  being  then  a  large  number 
of  yiassengers  on  board,  and  the  loss  being 
publicly  known  among    them.     On    the 
defendant's   return,   the   second  bag  was 
also  missing,  and   after  every  search  no 
trace  of  the  manner  of  the  loss   could  be 
ascertained.     The  valise  containing  both 
bags  was   brought  on   l)oard  by    the   de- 
fendant on  the  preceding  evening,  and  put 
by  him  in  a  bertli  in  the  forward  cabin. 
He  left  it  there  all  night,  having  gone  in 
the  evening  to  the  tlicatre,  and  oii   his  re- 
turn  having   slept  in  the  middle  cabin. 
The  defendant  had  his  own  money  to  a 
considerable  amount  in  the  same  valise. 
There  was  evidence  to  show  that  he  made 
inquiries  on  board,  if  the  valise  would  be 
safe,  and  that  he  was  informed  that  if  it 
contained  articles  of  value,  it  had  better 
be  put  into  the   custody  of  the  cajitain's 
clerk   in   the   bar,  under   lock   and   key. 
Ston/,J.,  in  summing  up  to  the  jury,  said  : 
'*  I  agree  to  the  law  as  laid  down  at  the 
bar,  that  in   ca.ses   of  bailees  without  re- 
ward, they  arc  liable  only  for  gross  neg- 
ligence.    Such  are  depositaries,  or   per- 
sons   receiving   deposits   without   reward 
for  their  care ;  and  mandataries  or  per- 
sons receiving  goods  to  carry  from  one 
place  to  another  without   reward.     The 
latter  is  the  predicament  of  tlu;  defeiulant. 
He  undertook  to  carry  the  gold  in  (|ues- 
tiou  f(ir  the  plaintiff,  gratuitously,  from 
New  York  to   Providence,  and  he  is  not 
responsible,  unless  he  has  been  guilty  of 
gross   negligence.     Nothing  in    this  case 
arises  out  of  the  jjcrsonal  character  of  the 
defendant  as  broker.     He  is  not  shown  to 
be   t'ither   more   or   less   negligent    than 
brokers  general Iv  are  ;  nor  if  he  was,  is 
that  fact  brouLiht  home  to  the  knowledge 
of    the    plaintitfs.       They    confided    the 
money   th  him,   as  a   broker  of  ordinary 
dili<j:''nce  and  care,  having  no  other  knowl- 
cd:^e  of  him  ;  and,  theri'fore,  no  (piestion 
arises  .'is  to  wliat  would  biivc  been  the  case 
if  the   ])laintiffs   had   known  him  to  lie  a 
very    careless    or   a    very  attentive    man. 
The  language  of  the    books   as    to  what 
constitutes    gross    negligence,   or    not,  is 
sometimes  loose  and  inaccurate?  from  the 
general  manner  in  which  propositions  arc 


stated.  When  it  is  said  that  gross  negli- 
gence is  equivalent  to  fraud,  it  is  not  • 
meant  that  it  cannot  exist  without  fraud. 
There  may  be  very  gross  negligence  in 
cases  where  there  is  no  pretence  that  the 
party  has  liecn  guilty  of  fraiul ;  though 
eertaiidy  such  negligence  is  often  pre- 
sumptive of  fraud.  In  determining  what 
is  gross  negligence,  we  must  take  into  eoii- 
sideration  what  is  the  nature  of  the  thing 
bailed.  If  it  be  of  little  value,  less  care  is 
recpiired  than  if  it  be  of  great  value.  If  a 
bag  of  apijles  were  left  in  a  street  ibr  a 
short  time,  without  a  person  to"  guard  it, 
it  would  certainly  not  lie  more  than  ordi- 
nary nejjlect.  But  if  the  bag  were  of 
jewels  or  gold,  such  conduct  would  be 
gross  negligence.  In  short,  care  and  dili- 
geni^e  arc  to  be  proportional  to  tlie  value 
of  the  goods,  the  tem])tation  and  facility 
of  stealing  them,  and  the  danger  of  losing 

them It  appears  to  me  that  the  true 

way  of  considering  cases  of  this  nature  is, 
to  consider  whether  the  party  has  omitted 
that  care  which  bailees,  without  hire,  or 
mandataries  of  ordinary  prudence  usually 
take  of  property  of  this  nature.     If  he  has, 
then  it  constitutes  a  ca.se  of  gross  negli- 
gence.    The  question  is  not  whether  he 
has  omitted  that  care,  which  very  ]irudent 
persons  usually  take  of  their  own  property, 
for  the   omission    of  that   wouhl    be   but 
slight  negligence ;    nor  whether   he    has 
omitted   that  care  which  prudent  persons 
ordinarily  take  of  their  own  ])ropcrty,  for 
that  would  be  but  ordinary  negligence. 
l?ut  whether  there  lie  a  want  of  that  care 
which  men  of  common  sense,  however  in- 
attentive, usually  take  or  ought  to  be  ])re- 
sumed  to  take,  of  their  ]iroperty,  for  that 
is    gross    negligeiu'c.     The    contract    of 
bailees  without  reward  is  not  merely  for 
good  faith,  but  for  such  care  as  ])ersons  of 
common  prudence  in  their  situation  usual- 
ly bestow   upon   such  i)ro]ierty.     If  they 
omit   such    care,   it    is    j^ross    negligence. 
The  present  is  a  case  of  a  mandatary  of 
money.     Such  jirojierty  is  by  all  ])ersons, 
negliirent  as  well  as  prudent,  guarded  with 
nnu'b  greater  care  than  common  ])io|ierty. 
The  defendant  is  a  broker,  aecustonu'il  to 
the  use  and  transportation  of  money,  aiul 
it  must  be  [)re.uiined  he  is  a  |icrson  of  or- 
dimiry  diligence.     He  kept  his  own  money 
in   the  same  valise ;  and   took   no  better 
care  of  it  than  of  the  ])laintiirs.     Still,  if 
the  jiny  are  of  opinion  that  he  omitted  to 
take  that  reasonable  care  of  the  <;;old  which 
[  G03  ] 


577- 


THE   LAW    OF   CONTRACTS. 


[book  III. 


individual  character  of  the  bailee  is  not  a  legitimate  subject  of 
inquiry,  unless  it  can  be  shown  that  his  character  was  known 
to  the  bailor,  and  that  it  was  the  implied  understanding  of  the 
parties  that  the  bailee  should  employ  such  care  and  skill  as  he 
possessed,  (v) 

Sir  William  Jones  thinks  the  depositary  holden  for  less  than 
gross  negligence,  first,  where  he  makes  a  special  bargain  for 
special  care,  and  secondly,  where  he  spontaneously  and  offi- 
ciously proposes  to  keep  the  goods  of  another,  (iv)  But  this  last 
has  not  been  determined  by  adjudicatioii. 

The  depositary  is  bound  to  deliver  the  thing  as  it  was,  and 
with  it  all  its  increase  or  profit.  But  if  the  bailor  was  not  the 
rightful  owner,  and  the  depositary  delivers  the  thing  to  the 
rightful  owner  on  demand  from  him,  this  constitutes  a  good 
defence  against  the  bailor ;  (x)  although,  for  his  own  security, 
he  should,  if  possible,  compel  the  rival  claimants  to  inter- 
plead, (y) 

If  the  property  belongs  to  two  or  more  bailors,  and  is  capable 


bailees  without  reward  in  his  situation 
usually  take,  or  which  he  himself  usually 
took  of  such  property,  under  such  circum- 
stances, he  has  been  guilty  of  gross  negli- 
gence." 

(v)  The  William,  6  Rob.  Adm.  316. 
In  this  case  a  vessel  had  been  captured, 
and  was  afterwards  lost  while  in  the  hands 
of  the  captor.  Tiie  capture  was  justifia- 
ble, and  the  question  was  whether  the 
captor  had  used  such  diligence  as  a  captor 
is  required  to  use  in  such  cases.  Sir  W. 
Scott,  in  addressing  the  jury,  said  :  "When 
a  capture  is  not  justifiable,  the  captor  is 
answerable  for  every  damage.  But  in  this 
case  the  original  seizure  lias  been  justified 
by  the  condemnation  of  part  of  the  cargo. 
It  is  therefore  to  be  considered  as  a  justi- 
fiable seizure,  in  which  all  tliat  the  law 
requiues  of  the  captor  is,  that  he  should  bo 
held  responsible  for  due  dillqence.  But 
on  questions  of  this  kind  there  is  one  po- 
sition somelimes  advanced,  wliich  does 
not  meet  with  my  entire  assent,  namely, 
that  captors  are  answerable  only  for  such 
care  as  they  would  take  of  their  own  prop- 
erty. This  I  tiiiiik  is  not  a  just  criterion 
in  such  case  ;  for  a  man  may,  with  respect 
to  his  own  property,  encounter  risks  from 
views  of  particular  advantage,  or  from  a 
natural  disposition  of  rashness,  which 
[6041 


would  he  entirely  unjustifiable,  in  respect 
to  the  custody  of  the  goods  of  another 
person,  which  have  come  to  his  hands  by 
an  act  of  force.  Where  property  is  con- 
fided to  the  care  of  a  particular  person, 
by  one  who  is,  or  may  be  supposed  to  be 
accjuaintcd  with  his  character,  the  care 
which  lie  would  take  of  his  own  property 
might,  indeed,  be  considered  as  a  reason- 
able criterion."  "  Certainly  it  might," 
says  Mr.  Justice  Stori/,  "if  such  character 
was  known,  and  the  party  under  the  cir- 
cumstances might  be  presumed  to  rely, 
not  on  the  rule  of  law,  but  on  the  care 
which  tlie  party  was  accustomed  to  take 
of  his  own  property,  in  making  the  de- 
posit. But,  unless  he  knew  the  habits  of 
the  bailee,  or  could  be  fairly  presumed  to 
trust  to  such  care  as  the  bailee  might  use 
about  his  own  property  of  a  lil^e  nature, 
there  is  no  ground  to  say  tbat  he  has 
waived  his'  riglit  to  demand  reasonable 
dihgeucc.  Why  should  not  the  rule  of 
the  civil  law  be  applied  to  such  a  case  ? 
Laice  ciil/>a\fiitis  est,  non  intelll(/ere  id  quod 
omnes  intelligunl."  Story  on  Bailm.  §  67. 
See  the  case  of  Wilson  v.  Brett,  11  M.  & 
W.  113. 

(«')  Jones  on  Bailments,  48. 

[x)   King  V.  Richards,  6  Whart.  418. 

(!/)  Rich  V.  Aldrcd  6  Mod.  216. 


CH.  XII.] 


BAILMENT. 


*578 


of  j)artition,  he  may  on  demand  restore  it  by  division  *among 
them.  But  where  it  is  incapable  of  division  the  law  seems  to 
be  deficient.  The  ancient  action  of  detinue,  with  the  process 
of  garnishment,  would  have  settled  the  claim.  Kent  {z)  thinks 
equity  interpleader  adequate,  and  far  better;  as  it  certainly 
would  be  if  it  could  be  applied  to  the  question ;  but  this, 
Story  (a)  confines  to  cases  of  a  privity  between  the  parties,  as 
where  there  was  a  joint  bailment,  or  joint  contract.  Upon  the 
whole  we  prefer  Kent's  opinion. 

The  duty  of  the  depositary  as  to  the  place  of  delivery  has 
been  much  questioned.  But  it  may  be  considered  as  settled  in 
this  country,  that  a  bailee,  bound  to  deliver  goods  on  demand, 
discharges  his  obligation  by  delivering  or  tendering  them  where 
they  are,  or  at  his  own  residence  or  place  of  business  ;  (h)  but 
the  demand  may  be  made  on  him  elsewhere,  (c) 

It  is  sometimes  said  that  a  depositary  has  a  special  property 
in  the  deposit;  but  this  is  perhaps  inaccurate,  {d)  He  has  the 
right  of  possession,  but  not  the  right  of  property ;  and  may 
therefore  maintain  trover,  for  which  possession  is  enough  ;  (e) 
but  not  replevin,  because  that  action  requires  property  in  the 
plaintiff.  (/) 


(z)  2  Kent's  Com.  567. 

(«)   Story  oil  Bailint'iits,  4  112. 

(li)  Scott  );.  Crane,  1  Conn.  255  ;  Sling- 
crland  r.  Morse,  8  .Jolins.  474. 

(c)  IligfTins  i>.  Emmons,  5  Conn.  76; 
Diuila))  i:  Hunting-,  2  Denio,  643. 

(il)  Ilarto])  V.  Iloare,  3  Atk.  44  ;  Story 
on  Bailments,  ^  93,  ef  xcq. 

(r)  Sutton  V.  lJuei<,  2  Taunt.  302; 
Burton  v.  IIu<;hes,  2  Binfr.  173.  Sec  also 
AVeljb  v.  Vox,  7  T.  II.  391  ;  Giles  v. 
Grover,  6  Blifili,  277. 

(  /")  At  least  sueh  is  the  law  in  Massa- 
chusetts. Waterman  v.  Koliinson,  5  Mass. 
303.  That  was  an  action  of  replevin.  It 
a|p|K'ar('(l  that  tiie  goods  replevied,  on  the 
20th  of  July,  1801,  heloiiged  to  one  Lucas, 
on  which  day  a  commission  of  bankruptcy 
issued  against  the  said  Lucas,  and  lie  being 
declareci  a  bankrupt,  by  a  warrant  from 
the  commissioners,  their  messenger  seized 
the  poods  in  (piestion,  caused  tliem  to  be 
ap])raise<l  and  inventoried,  and  on  tiie  28tii 
(lay  of  the  sanu'  July  delivered  them  to 
the  plaiutitf,  taking  his  obligation  to  re- 
deliver them  on  demand.    Wliilc  the  goods 

51* 


were  so  in  the  custody  of  the  plaintiff,  the 
defendant,  as  deputy  sheriff,  attached  thcin 
as  the  property  of  Lucas.  U]'on  these 
facts  the  court  held  tliat  the  plaintiff  could 
not  recover.  Parsons,  C.  J.,  said  :  "  Upon 
these  facts  we  are  to  decide  whether  the 
property  of  the  goods,  so  tliat  he  might 
lawfully  rejilevy  them,  was  in  the  itlaiutiff. 
Trover  may  be  maintained  by  him  who 
has  the  possession ;  but  replevin  cannot 
be  maintained  but  by  him  who  has  the 
jnojierty,  either  general  or  special. '  Ad- 
mitting the  commission,  and  the  proceed- 
ings under  it,  to  l>e  rcgidar,  what  property 
had  the  plaintiff  in  the  goods  >.  The  gen- 
eral |iropcrty  was  in  the  commissioners 
until  the  assignment,  and  then  in  the  as- 
signee. The  messenger,  if  any  person, 
had  the  special  pro])erty,  and  not  the 
plaintiff,  who  had  no  interest  in  the  goods, 
liut  merely  had  the  care  of  tliem  for  safe- 
keeping. If  his  possession  was  violated, 
lie  might  maintain  tresjiass  or  trover,  l>ut 
he  had  no  special  property,  by  which  he 
could  maintain  replevin  ;  in  which  the 
question  is  not  of  possession,  i)ut  of  prop- 

[  G05  1 


579-580* 


THE   LAW   OF   CONTRACTS. 


[book   III. 


One  cannot  be  made  a  depositary  against  his  will,  (g-)  He 
must  consent;  but  the  consent  may  be  implied  or  inferred.  A 
pledge^,  holding  a  pledge  over  after  payment  of  the  debt,  is  a 
depositary.  One  finding  property  need  not  take  charge  of  it ; 
if  he  chooses  to  do  so  he  becomes  a  depositary,  and  is  liable  for 
loss  from  gross  negligence,  (/-i)  and  may  *charge  the  owner  for 


erty,  although  possession  may  he  prima 
facie  evidence  of  property.  On  this  ground 
we  are  of  opinion  that  the  ph;intiff  cannot 
maintain  this  action,  he  not  ]iroving  that 
either  the  general  or  special  property  was 
in  himself."  So  in  the  case  of  Temple- 
man  V.  Case,  10  Mod.  24,  it  is  said  that  a 
poss&isoiy  I'ight  is  sufficient  to  maintain  an 
action  of  trespass  or  case,  though  not  a  re- 
plevin. In  New  York,  on  the  other  hand, 
it  is  lield  that  replevia  will  lie  in  favor  of 
a  depositary.  Sec  the  case  of  Miller  i\ 
.Adsit,  16  "Wend.  335.  And  the  court 
seem  to  have  entertained  a  similar  opinion 
in  21  H.  7,  14  b,  pi.  23.  That  case  was 
as  follows:  "In  replevin.  Tlie  defendant 
said  that  the  property,  &c.,  was  in  a  stran- 
ger. The  plaintiff  said  tliat  the  stranger 
delivered  them  to  him  to  be  redeliver- 
ed, and  before  any  redelivery  the  defendant 
took  them.  Marow  said  that  he  would 
demur  upon  that  plea.  For  he  said  it  was 
adjudged  in  a  book,  that  if  one  has  beasts 
for  a  term  of  years,  or  to  manure  liis  land, 
there  lie  shall  have  replevin.  And  the 
reason  is,  he  has  a  good  property  for  the 
time  at/uinst  the  lessor,  and  shale  have  an 
action  ucjainst  him  if  he  retakes  them.  But 
where  he  cannot  have  an  action  against 
the  lessor,  it  seems  that  he  shall  not  have 
replevin.  And  here  there  is  only  a  de- 
livery to  redeliver  to  the  bailor,  so  that  he 
has  not  any  propert3\  For  if  one  takes 
them  out  of  the  possession  of  the  bailee, 
the  bailor  shall  have  an  action  of  trespass, 
and  if  he  recovers  by  this,  the  bailee  shall 
never  have  an  action  for  the  taking. 
Wherefore,  &c.,  Fineux,  C.  J.  This  is 
not  a  new  case.  For  a  case  similar  to  this 
has  been  several  times  adjudged  in  our 
books  ;  as  in  the  case  of  letting  beasts  for 
a  term  of  years,  and  to  manure  land,  &c. 
And  in  the  ease  here  the  bailee  has  a  prop- 
a'ty  ac/ainst  every  stram/er,for  he  is  charge- 
able to  the  bailor.  And  therefore  it  is  rea- 
sonable that  he  should  recover  against  any 
stranger  who  takes  them  out  of  his  pos- 
session. Therefore,  when  the  plaintiff'  has 
had  conveyed  to  him  such  special  prop- 
ertv,  it  seems  that  it  is  good  in  mainte- 

[606] 


nance  of  his  action.  Slarow  then  prayed 
further  time,  and  said  that  as  he  was  then 
advised,  he  would  demur  upon  the  plea. 
Fineux,  C.  J.  And  you  will  not  be  so 
well  advised  to  demur  upon  this  plea;  but 
we  shall  be  as  well  advised  to  give  judg- 
ment against  you." 

ig)  Lethbridgc  v.  Phillips,  2  Stark. 
544.  It  appeared  in  this  case  that  a  per- 
son of  the  name  of  Bernard,  being  desir- 
ous, for  particular  reasons  of  his  own, 
that  the  defendant  should  see  a  picture 
belonging  to  the  plaintiff,  borrowed  the 
picture  of  the  plaintiff  for  the  purpose  of 
sending  it  to  the  defendant,  and  after- 
wards delivered  it  to  a  son  of  the  defend- 
ant to  be  taken  to  the  defendant's  house. 
The  defendant's  son  accordingly  took  it 
home,  and  the  picture  was,  wliilst  at  the 
defendant's,  much  damaged  in  conse- 
quence of  having  been  placed  on  a  mantel- 
piece near  a  stove.  It  appeared  that  the 
picture  had  been  sent  by  Bernard  to  the 
defendant  without  any  request  on  the  part 
of  the  latter,  and  without  any  previous 
communication  between  tliem  on  tlie  sub- 
ject. Upon  these  facts,  Abbott,  C.  J.,  Avas 
of  opinion  that  the  action  could  not  be 
supported  ;  that  the  defendant  could  not, 
without  his  knowledge  and  consent,  he 
considered  as  a  bailee  of  the  property.  In 
some  instances,  he  said,  it  had  hajjpencd 
that  property  of  much  greater  value  than 
that  in  the  present  case  had  been  left  at 
gentlemen's  houses  by  mistake,  and  in 
such  cases  the  parties  could  not  be  con- 
sidered as  bailees  of  the  property  without 
their  consent. 

(/()  "  When  a  man  doth  find  goods," 
says  Lord  Coke,  "  it  hath  been  said,  and 
so  commonly  held,  that  if  he  doth  dispos- 
sess himself  of  them,  by  this  he  shall  be 
discharged  ;  but  tliis  is  not  so,  as  appears 
by  12  Ed.  4,  13,  for  he  which  finds  goods 
is  bound  to  answer  liim  for  them  who  hath 
the  property  ;  and  if  he  deliver  them  over 
to  any  one,  unless  it  be  unto  the  right 
owner,  he  shall  be  cluxrged  for  them  ;  for 
at  the  first  it  is  in  his  election  whether  he 
will  take  them  or  not  into  his  custody ; 


en.  XII.] 


BAILMENT. 


-580 


necessary  expense  and  labor  in  the  cave  of  it.  (i)  And  perhaps 
his  consent  may  be  absolutely  implied  when  the  property  is 
forced  into  his  care  by  extraordinary  exigencies,  as  by  fire  or 
shipwreck. 


•SECTION    II. 

MANDATUM. 

When  the  commission  is  gratuitous,  there  also  the  transaction 
is  for  the  exclusive  benefit  of  the  bailor,  and  the  bailee  is  held 
only  for  gross   negligence.     In   deposit  the  safe-keeping  is  the 


but  when  lie  hath  them,  one  only  hath 
tlicn  rijilit  unto  tlicni,  and  therefore  he 
ought  to  kee])  them  safely.  A  man,  there- 
fore, whieh  tinds  goods,  if  he  1)C  wise,  will 
tlien  search  out  the  right  owner  of  them, 
and  so  deliver  them  unto  liim.  If  the 
owner  comes  unto  him,  and  demands 
them,  and  he  answers  him  that  it  is  not 
known  unit)  him  whether  he  he  the  true 
owner  of  the  goods  or  not,  aiul  for  this 
cause  he  refuseth  to  deliver  them  ;  this  re- 
fusal is  no  conversion,  if  he  do  keep  them 
for  him."  Isaac  i:  Clark,  2  Bulst.  .-JOG, 
312.  The  tinder  of  jiroperty,  for  whieh  a 
specific  reward  lias  been  offered,  has  a 
lien  upon  it  for  the  payment  of  the  amount 
of  the  reward.  Wentworth  v.  Day,  3 
Met.  352.  It  is  otherwise  if  the  oti'eV  be 
merely  of  "a  liberal  reward."  Wilson  r. 
Guyton,  8  Gill,  213.  —  If  a  ])erson  finds 
property,  which  another  has  cast  away 
and  aiiandoiied  as  entirely  worthless,  he 
may  hold  it  against  the  origiiuil  owner. 
McGoon  c.  Ankeny,  11  ill.  5,')8. 

(/)  So  said  in  Story  on  Bailments,  ^ 
121,  a,  but  it  seems  never  to  have  been 
cxiiressly  adjudged.  The  case  which 
comes  nearest  to  it  is  that  of  Nicholson  c. 
Chapman,  2  II.  Bl.  254.  In  this  case  a 
quantity  of  limber  belonging  to  the  plain- 
till"  was  placed  in  a  dock  on  the  bank  of  a 
navigable  river,  and  being  accidentally 
loosened,  was  cairied  by  the  tide  to  a  con- 
siderable distance,  and  left  at  low  water 
upon  a  towiug-[)atli.  The  defendant, 
finding  it  in  that  .'situation,  voluntarily 
conveyed  it  to  a  place  of  safety,  beyond 
the  reach  of  the  tide  at  high  water  ;  and 
when  the  j)laintirt"  afterwards  sent  to  de- 
mand the  timber  to  be  restored  to  him,  the 


defendant  refused  to  restore  it  without 
jiayment  for  his  trouble  and  expense. 
The  plaintiff  thereupon  brought  an  action 
of  trover;  and  the  court  hthl  that  the  de- 
fendant had  no  lien  upon  the  timber,  and 
that  the  action  was  maintainable.  Lord 
Chief  Justice  I'Jijre,  however,  intimated, 
in  the  course  of  his  judgment,  that  the  de- 
fendant might  recover  for  his  trouble  and 
expense  in  some  form  of  action.  After 
declaring  that  the  common  law  gave  the 
defendant  no  lien  in  such  a  case,  and  that 
this  case  could  not  be  likened  to  a  case  of 
salvage,  he  said:  "It  is,  therefore,  a  case 
of  mere  finding,  and  taking  care  of  the 
thing  found  (1  am  willing  to  agree)  for 
the  owner.  This  is  a  good  olHce  and 
meritorious,  at  least  in  the  moral  sense  of 
the  word,  and  certainly  entities  tiie  party 
to  some  reasonable  recomi)euse  from  the 
bounty,  if  not  from  the  justice  of  the 
owner;  and  of  which,  if  it  were  refused,  a 
court  of  justice  would  go  as  far  as  it  could 
go  towards  enforcing  the  payment."  The 
learned  reporter,  in  a  note  to  this  passage, 
says  :  "  It  seems  probable  that  in  such  a 
case,  if  any  action  ct)nld  be  maintained,  it 
woubl  be  an  action  of  a.<siiiiij)sif  for  work 
and  labor,  in  whieh  the  court  would  im- 
])ly  a  special  instance  anil  rc(|ucst,  as  well 
as  a  jiromise.  (^n  a  (/luiiiliim  imntit,  the 
reasonable  e.\tcnt  of  the  recomi)ense  would 
come  proj)erlv  before  the  jurv."  See 
Baker  v.  iloag,  3  Barb.  113,  7"id.  3(i3. 
It  might  be  found  somewhat  dilliciilt,  how- 
ever, on  technical  grounds,  to  supjiort 
such  an  action.  See  Bartholomew  r. 
Jackson,  20  Johns.  28.  See  also  ante,  j). 
371,  n.  (6). 

[607] 


581*  THE    LAW    OF    CONTRACTS.  [eOOK    III. 

principal  matter  ;  in  mandate,  the  work  to  be  done  *with  or 
about  the  thing.  Hence  the  first  is  said  to  lie  in  custody,  the 
second  in  feasance. 

The  cases  are  not  very  numerous,  either  as  to  deposit  or 
mandate.  Perhaps  because  both  are  gratuitous ;  and  it  is  not 
often  that  persons  undertake  to  do  any  thing  of  importance  for 
another  without  compensation. 

The  name  mandatum  was  first  used  in  England  by  Bracton, 
who  borrowed  it  from  the  civil  law  ;  afterwards  the  word  com- 
mission was  commonly  used  ;  but  in  recent  times  this  is  gener- 
ally applied  to  dealings  with  factors,  brokers,  &c.,  for  compen- 
sation, or  to  the  compensation  itself;  and  Sir  Wm.  Jones 
returned  to  Bracton's  word,  which  has  since  been  generally 
used. 

It  is  an  important  and  difficult  question,  what  is  the  g-round 
of  the  obligation  of  any  party,  who  undertakes  gratuilouslij  to 
do  any  thing  in  relation  to  any  goods.  Sir  William  Jones  says 
he  is  bound  to  do,  and  is  responsible  for  not  doing,  {j)  But  an 
examination  of  the  cases  would  lead  to  a  distinction  not  always 
regarded.  If  one  has  property  intrusted  to  him,  in  order  that 
he  may  do  something  in  or  about  or  with  that  property,  if  he 
accepts  the  property  and  the  trust,  this  is  a  contract  on  a  con- 
sideration ;  and  he  is  liable  in  an  action  ex  contractu  for  any 
■  failure  in  the  discharge  of  his  obligation.  But  if  one  be  re- 
quested to  do  something  in  relation  to  certain  property,  which 
is  not  put  into  his  possession,  nor  any  consideration  paid  him, 
although  he  undertake  to  do  what  is  requested,  he  is  under  no 
obligation  ;  there  is  no  contract,  because  no  consideration.  He 
is  therefore  not  liable  for  not  doing ;  but  if  he  begins  to  do, 
that  is,  enters  upon  the  execution  of  his  agency,  (for  it  is  that 
rather  than  a  mandate  at  common  law,)  and  then  fails  to  do 
what  he  undertakes  to  do,  he  is  liable  for  malfeasance  ;  but 
only  in  an  action  ex  delicto,  and  not  ex  contractu,  (k)     The  case 

(  /)  Jones  on  Bailments,  56.     lie  bor-  Qxod  mandatrnn  svsceperit,  teneUir,  etsi  non 

rows  tliis  principle   from   the   civil   law.  (/ess('we<."  Balfe  f.  West,  22E.  L.  &E.  506. 

By  that  law  he  might  accept  or  refuse  a  [k]   Wilkinson   v.    Covcnlaie,    1    Esp. 

mandate;  but  having  .accepted,  must  per-  74;    French    v.   Eeed,    6    Biiiney,   308; 

form.     "  Liberuvi  est,  manclaUnii  non  susci-  Seller  i".  Work,  1  Marsh,  on  Insurance, 

pere.     Si  susceptum  non  iinpleverit,  tenetur.  299. 

[G08] 


en.  xir.] 


BAILMENT. 


*582 


of  Thorne  v.  Deas,  (/)  in  fact  *rests  upon  this  distinction,  and  is 
therefore  properly  decided  ;  but  it  is  treated  as  a  case  of  man- 
date, and  an  elaborate  examination  of  authorities  leads  the 
learned  court  to  the  rule  that  no  mandatary  is  liable,  unless  he, 
in  addition  to  his  acceptance  of  the  property  and  the  trust, 
enters  upon  an  execution  of  it,  and  then  fails  therein.  This 
rule,  as  applicable  to  the  mandatary  properly  so  called,  admits 
of  much  doubt,  although  we  acknowledge  that  the  question  is 
encumbered  with  some  difficulties. 

It  has  indeed  been  very  strenaously  insisted  upon  in  several 
instances,  by  able  and  learned  writers,  that  mandates  and  de- 
posits are  not  contracts  ;  and  that  the  liability  of  bailees  of  this 
class  rests  wholly  upon  the  ground  of  tort.  If  this  were  to  be 
taken  as  the  true  rule  of  law,  it  might  occasion  serious  incon- 
venience. For  it  is  doubtful  whether  gratuitous  bailees  could 
be  made  liable  in  tort  in  several  cases  to  which  it  has  generally" 
been  supposed  that  their  liability  extended.  But  we  think 
there  is  no  insuperable  objection  to  considering  mandates  and 
deposits  as  contracts,  and  enforcing  the  obligations  arising  out 
of  them  by  the  action  of  assumpsit.  It  is  obvious  that  the  only 
objection  to  so  considering  them  is  the  alleged  want  of  a  suffi- 
cient consideration.  But  we  regard  it  as  well  settled  by  the 
authorities,  that  the  delivery  and  acceptance  of  the  goods  con- 
stitute a  sufficient  consideration,  [m)     Nor  do  we  regard  it  as 


(/)  4  Johns.  84.     Sec  infra,  p.  58G,  n. 

(0). 

(;«)  TIiLs  was  adjudged  for  the  first 
time,  wc  l)elicve,  in  the  Khig's  Bench,  in 
44  Eliz.  in  tlie  case  of  Riches  v.  IJrigges, 
Yelv.  4,  Cro.  Eliz.  88.3.  In  that  case  tlic 
jihiintill"  declared  that  in  consideration  he 
had  delivered  to  the  defendant  twenty 
quarters  of  wheat,  the  defendant  ])roniised 
upon  reipiest  to  deliver  tiie  same  wheal 
again  to  the  ])laintiir.  And  this  was  ad- 
judged, on  a  motion  inarrest  of  judgment, 
to  he  ii  good  consideratiun.  liut  the  case 
is  said  to  have  heen  afterwards  reversed 
in  the  Exchecpier  Chamber.  The  same 
jtoint  arose  a;:ain  in  2  Jac,  in  the  case  of 
Game  v.  Ilar\ie,  Yelv.  51),  and  in  G  .Jac. 
in  the  case  of  I'iekas  v.  Guile,  Yelv.  128. 
In  both  of  these  cases,  the  Court  of  King's 
Jkiieh  followed  the  decision  of  the  Ex- 
chequer  Chamber,   reversing    Kiches    v. 


Brigges,  but  at  the  same  time  said  that 
that  case  was  erroneously  reversed.  Af- 
terwards, in  21  Jac,  the  same  jioint  arose 
again  in  the  case  of  Wheatley  v.  Low, 
Cro.  Jac.  6G8.  In  this  case  the  plaintiff 
declared  that  whereas  he  was  obliged  to 
J.  S.  in  forty  pounds  for  the  payment  of 
twenty  jjounds  ;  and  the  bond  being  for- 
feited, he  delivered  ten  pounds  to  the  de- 
fendant, to  the  intent  he  should  pay  it  to 
J.  S.  in  i)art  of  payment  .•<■///'■  iilla  mora; 
that  in  consideration  thereof  the  defendant 
assumed,  &.c.  The  defendant  pleaded 
iioii-assumpsil,  and  a  verdict  having  been 
found  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment  that  this  was  not  any 
consideration,  because  it  was  not  alleged 
that  he  delivered  it  to  the  defendant  upon 
his  request  ;  and  tiic  acceiitaneo  of  it  to 
deliver  to  another  si'ik'  mora  could  not  be 
any  benefit  to  the  defendant  to  charge  iiim 

[  G09  J 


i 


583* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


an  unreasonable  doctrine  *upon  principle.     It  is  true   that  the 
bailee  does  not  ordinarily  derive  any  benefit  from  such  a  trans- 


with  this  promise.  Scd  non  allocatur ; 
for,  since  he  accepted  this  money  to  de- 
liver, and  promised  to  deliver  it,  it  was  a 
good  consideration  to  cliarge  him.  This 
judgment  was  affirmed  in  the  Exchequer 
Chamber  on  a  writ  of  error.  This  case 
was  sanctioned  to  the  fullest  extent  by 
Lord  Holt,  in  Coggs  v.  Bernard.  He 
there  says  :  "  There  has  been  a  question 
made,  If  I  deliver  goods  to  A,  and  in  con- 
sideration thereof  he  promise  to  redeliver 
them,  if  an  action  will  lie  for  not  redeliv- 
ering them ;  and  in  Yelv.  4,  judgment 
was  given  that  the  action  would  lie.  But 
that  judgment  was  afterwards  reversed, 
and,  according  to  that  reversal,  there  was 
judgment  afterwards  entered  for  the  de- 
fendant in  the  like  case.  Yelv.  128.  But 
those  cases  were  gnxmbled  at,  and  the  re- 
versal of  that  judgment  in  Yelv.  4,  was 
said  by  the  judges  to  be  a  bad  resolution, 
and  the  contrary  to  that  reversal  was  af- 
terwards most  solemnly  adjudged  in  2 
Cro.  667,  Tr.  21,  Jac.  1,  in  the.  King's 
Bench,  and  that  judgment  affirmed  upon 
a  writ  of  error.  And  yet  there  is  no 
benefit  to  tlie  defendant,  nor  no  consider- 
ation, in  that  case,  but  the  having  the 
money  in  his  possession,  and  being  trusted 
with  it,  and  yet  that  was  held  to  be  a  good 
consideration.  And  so  a  bare  being 
trusted  with  another  man's  goods  must  be 
taken  to  be  a  sufficient  consideration,  if 
the  bailee  once  enter  upon  the  trust,  and 
take  the  goods  into  his  possession." 
Wheatley  v.  Low,  has  always  been  con- 
sidered as  good  law  from  that  time  to  this. 
We  are  not  aware  that  any  adjudged  case 
has  cast  any  doubt  upon  it,  at  least  so  far 
as  the  point  in  question  is  concerned.  On 
the  other  hand,  there  are  numei-ous  cases 
in  which  assumpsit  lias  been  sustained  on 
no  otiicr  consideration  than  what  existed 
in  that  case.  Thus,  in  the  case  of  Shiells, 
assignee  of  Goodwin,  v.  Blackburne,  1  H. 
Bl.  158,  tlie  defendant,  who  was  a  general 
merchant  in  London,  having  received 
orders  from  his  correspondent  in  Madeira 
to  send  tliither  a  quantity  of  leather  cut 
out  for  sliocs  and  boots,  employed  Good- 
win, tlie  bankrupt,  who  was  a  shoemaker, 
to  execute  the  order.  Goodwin  accord- 
ingly prepared  the  leather  for  the  defend- 
ant, and  at  the  same  time  prepared  an- 
other parcel  of  the  same  kind  of  leather  on 
his  own  account,  which  he  packed  in  a 
separate  case,  to  be  sent  to  Madeira  on  a 
venture,  requesting  the  recommendation 
[610] 


of  the  defendant  to  his  correspondents  in 
the  sale  of  it.  Tiie  two  ca.ses  were  sent  to 
the  defendant's  house,  with  bills  of  par- 
cels ;  and  lie,  to  save  the  exjicnse  and 
trouble  of  a  double  'entry  at  tlie  custom- 
house, voluntarily  and  witliout  any  com- 
pensation, by  agreement  with  Goodwin, 
made  one  entry  of  both  the  cases,  but  did 
it  under  the  denomination  of  icrought  lea- 
ther, instead  of  dressed  leather,  which  it 
ought  to  have  been.  In  consequence  of 
this  mistake,  both  cases  were  seized,  and 
this  action  was  brought  by  the  assignees 
of  Goodwin,  to  recover  the  value  of  the 
leather  which  he  had  pre]jared  on  his  own 
account.  The  first  count  in  the  declara- 
tion stated  that  the  bankrupt  before  his 
bankru]itcy  was  possessed  of  a  quantity  of 
leather,  which  he  designed  to  export  to 
the  island  of  Madeira,  for  which  purpose 
it  was  necessary  that  a  proper  entry  of  it 
should  be  made  at  the  custom-house ; 
that  the  defendant,  in  consideration  that 
the  bankrupt  would  permit  him  to  enter 
the  said  leather  at  the  custom-house,  un- 
dertook to  enter  it  under  a  right  denomi- 
nation ;  that  the  bankrupt  confiding  in 
the  undertaking  of  the  defendant,  did  per- 
mit him  to  enter  it  at  the  custom-house 
for  exportation ;  that  the  defendant  did 
not  enter  it  under  a  right  denomination, 
but,  on  the  contrary,  made  an  entry  of  it 
under  a  wrong  denomination,  by  means 
Avhereof,  &e.  If  there  can  be  any  possible 
doubt  whether  this  count  is  wholly  in  as- 
sumpsit, it  may  be  observed  that  it  was 
joined  with  a  count  for  goods  sold  and  de- 
livered, and  a  count  on  a  quantum  meruit. 
In  the  case  of  Whitehead  r.  Greetham, 
MeClel.  &  Y.  205,  in  the  Exchequer, 
Chamber,  the  declaration  stated  that ' 
whereas  the  plaintiff,  at  the  special  in-] 
stance  and  request  of  the  defendant,  re- 
tained and  employed  the  defendant  to  lay 
out  a  certain  sum  oi,  money  for  the  plain- 
tiff, in  the  purchase  of  an  annuity,  to  be 
well  and  sufficiently  secured,  he  the  said 
defendant  undertook  to  use  due  and  suffi- 
cient care  to  lay  out  the  said  sum  of 
money  in  tlie  purchase  of  an  annuity,  the 
payment  whereof  should  be  well  and  suffi- 
ciently secured ;  and  the  said  ]ilaintiff  in 
fact  saith,  &c.  Judgment  iiaving  been 
given  for  the  plaintiff  in  the  King's  Bench, 
a  Avrit  of  error  was  brought,  ami  the  en'or 
relied  on  was,  that  no  sufficient  considera- 
tion appeared  on  the  fiice  of  the  declara- 
tion.    The  ground  relied  on,  however,  by 


CH.  XII.] 


BAILMENT. 


*584-*585 


action  ;  ])ut  this  is  not  *iiecessary  in  order  to  constitute  a  good 
consideration.  It  is  sufficient,  if  an  injury  accrues  or  may 
accrue  to  the  bailor,  or  if  he  parts  with  a  present  right.  That 
such  is  the  case,  it  would  seem  that  there  could  be  no  doubt. 
He  intrusts  his  goods  to  the  bailee,  and  thereby  renders  them 
liable  to  be  lost  or  injured.  He  parts  with  his  present  control 
over  them,  and  perhaps  renders  himself  unable  to  give  the  trust 
to  any  one  else,  or  to  execute  it  himself. 

But  although  it  thus  appears  that  gratuitous  bailees  may  be 
made  liable  ex  contrachi,  if  they  have  not  performed  their  con- 
tract, it  is  obvious  that  they  may  also  be  made  liable  ex  delicto, 
if  they  have  committed  a  tort  upon  the  property  intrusted  to 
them.  And  it  is  in  reference  to  their  liability  ex  delicto  that  the 
distinction,  which  has  occasioned  so  much  discussion  in  our 
books,  between  non-feasance  and  misfeasance,  becomes  impor- 
tant. It  seems  sometimes  to  have  been  supposed  that  this  dis- 
tinction *has  reference  to  their  liability  ex  contractu;  that  a 
mandatary  does  not  incur  any  obligation  ex  contractu  until  he 
enters  upoli  the  execution  of  his  trust,  but  that  he  does  incur 
such  obligation  when  he  enters  upon  the  trust,  and  fails  to  go 
through  with  it  or  does  it  badly  ;  and  that  if  the  mere  delivery 
of  the  goods  imposes  such  obligation,  it  is,  not  on  the  ground 


Tindal,  for  tho  plaintiff  in  error,  was,  not 
that  the  intrusting  the  dcfeiKhint  with  the 
money  was  not  a  snffieient  consideration, 
hilt  that  it  did  not-siiniciently  ajipear  tVoni 
tlic  declarati(jn  that  tliat  was  the  consider- 
ation of  the  defendant's  promise.  He 
said  :  "  It  was  essential  to  the  cstahlish- 
mcnt  of  liis  case  that  the  movinjj  cause  of 
the  defendant's  promise  wsis  tlie  ])laintiff's 
havin}^  intrusted  him  with  tiiis  money  to 
lay  out,  and  tiicre  is  nothing:  in  tlie  count 
in  question  to  siiow  that."  Sil  iioii  allo- 
aitvr,  for  per  B(st,  C.  J.,  deliverinjr  the 
judfiment  of  the  court :  "  Tiic  count  has 
averred  that  the  plaintitT,  at  the  difend- 
ant's  request,  retaineil  the  defendant  to 
lay  out  a  sum  of  money  in  the  purchase 
of  an  annuity,  and  delivered  him  C'Oi) 
for  tiiat  purpose  ;  and  tliat  tlie  dilVndant 
undertook,  and  faithfully  jiromised  the 
plaintiff",  to  use  due  and  sidlicient  care  to 
advance  and  lay  out  that  money  in  tho 
purchase  of  an  annuity,  the  payment 
whereof  should  he  well  and  sutlicicntiy 
secured.     Cojitrs  v.  Bernard  decides  that 


the  mere  delivery  of  the  article  is  abun- 
dant consideration.  There  the  considera- 
tion was  tlie  delivery  of  brandy.  The 
same  consideration  exists  here,  because 
money  was  delivered.  It  is  said  it  does 
not  aj)])ear  that  the  delivery  was  the  con- 
sideration of  the  defendant's  ]iromisc. 
But  the  money  was  delivered  l)y  the  plain- 
tiff''s  hand  to  the  defendant,  which,  in  law, 
raises  a  responsibility  in  the  defendant  for 
its  application  ;  anil  when  that  fact  is 
found  by  the  jury,  and  that  innnediately 
after  a  promise  was  made  by  t!ie  defend- 
ant to  the  plaintiff',  must  it  nt<  be  taken 
that  the  promise  was  in  consideration  of 
the  delivery  ?  "  The  case  of  Doorman  v. 
Jenkins,  2  Ad.  &  El.  256,  is  equally  in 
point.  Tliat  was  an  action  of  assumpsit, 
ami  the  declaration  was  very  >imilar  to 
those  that  we  have  already  considered, 
and  no  objection  taken  to  it.  See  also 
Shillibccr  r.  Glyn,  2  M.  &  W.  U.3  ;  li.U- 
gcrs  V.  Lueet,  2  Johns.  Ciis.  92  ;  Uobin- 
son  V.  Threadgill,  13  Ired.  39.  And  sec 
antr,  p.  372. 

[Gil] 


i 


585- 


THE    LAW    OF    CONTRACTS. 


[book   III. 


that  snch  delivery  with  the  acceptance  constitutes  a  good  con- 
sideration, but  on  the  ground  that  it  amounts  to  a  part  execu- 
tion of  the  trust.  This,  however,  we  must  regard  as  erroneous. 
It  is  very  difficult  to  understand  how  a  man  can  become 
liable  ex  contractu  for  not  completing  a  work  which  he  has  be- 
gun, when  he  was  under  no  legal  obligation  to  begin  it.  But 
when  we  consider  the  distinction  between  non-feasance  and  jnis- 
feasance  in  reference  to  liability  in  tort,  it  becomes  very  intelli- 
gible. («)       The    common    law    looks    upon    an    injury    which 


(«)  The  position  which  wc  haveendear- 
ored  to  maintain,  that  the  distinction  be- 
tween misfcasdiice  and  non-feasance  lias  ex- 
clusive reference  to  liability  sounding  in 
tort,  is  fully  supported  by  the  case  of  lien- 
dcn  V.  Manning,  2  New  Hamp.  289.  It 
was  an  action  of  assumpsit  against  a 
tailor  for  making  a  coat  in  an  unskilful 
and  improper  manner,  which  he  had  con- 
tracted to  make  in  a  skilful  and  proper 
manner.  Tb.c  consideration  for  the  jirom- 
ise  laid  in  the  declaration  was  a  certain 
sum  of  money  in  that  behalf  paid.  At 
the  trial,  the  defendant  objected  that  there 
was  no  evidence  to  prove  the  considera- 
tion so  laid.  The  court  instructed  the 
jury  that  the  evidence,  if  believed,  was  suf- 
ficient to  prove  the  consideration  alleged, 
and  the  jury  having  returned  a  vei'dict  for 
the  plaintitf",  the  defendant  filed  a  bill  of 
exceptions,  and  brought  a  writ  of  error. 
And  the  court  having  decided  that  there 
was  no  evidence  to  prove  the  considera- 
tion alleged,  the  defendant  in  error  con- 
tended that  the  action  might  be  supported 
on  the  ground  of  a  misfeasance.  But 
Richardson,  C.  J.,  said  :  "  It  has  been  con- 
tended on  the  part  of  the  defendant  in 
error  that  this  action  is  brought  to  recover 
damages,  not  for  a  mere  non-feasance,  but 
for  a  misfeasance,  and  therefore  it  was  un- 
necessary to  allege  or  prove  a  considera- 
tion. It  is  very  clear  that  no  man  can  be 
liable  foi*  the  mere  non-performance  of  a 
promise  made  without  consideration  ;  of 
course,  when  an  action  is  brought  to  re- 
cover damages  for  the  non-perforinance  of 
a  contract,  a  consideration  must  be  alleged 
and  proved.  But  when  one  man  does  an- 
other an  injury,  by  unskilfully  and  im- 
properly doing  what  he  had  promised  to 
do,  an  action  may  be  maintained  to  re- 
cover the  damage  although  there  was  no 
consideration  for  the  i)romise.  The  rea- 
son of  this  distinction  is  very  obvious,  but 

[612] 


it  is  a  distinction  that  cannot  avail  the  de" 
fendant  in  error.  His  action  was  as.snmp- 
sit,  founded  upon  the  breach  of  certain 
promises  alleged  to  have  been  made  upon 
certain  considerations.  The  \Qry  gist  of 
the  action  was  the  breach  of  a  valid  con- 
tract. But,  if  the  promises  were  made 
without  consideration,  they  were  mere  ?nida 
pacta,  and  no  action  could  be  maintained 
upon  them.  And  if  the  consideration 
alleged  were  not  proved,  the  action  was 
not  supported.  But  if,  instead  of  assump- 
sit, a  special  action  upon  the  case  had 
been  brought  for  misfeasance,  it  is  very 
clear  that  no  consideration  need  have  been 
alleged  or  proved.  The  gist  of  such  an 
action  would  have  been  the  misfeasance, 
and  it  would  have  been  wholly  inunatcrial 
whether  the  contract  was  a  valid  one  or 
not."  See  also  Elsee  v.  Gatward,  5  T.  R. 
143,  which  substantially  recognizes  the 
same  distinction.  —  If  our  positions  are 
correct,  it  follows  that  in  all  cases  of 
proper  mandate,  that  is,  where  projierty  is 
intrusted,  the  bailor  may  have  two  reme- 
dies for  any  injury  done  him  by  the 
bailee.  He  may  have  an  action  of  as- 
sumpsit for  a  breach  of  contract  on  the 
part  of  the  bailee  ;  or  if  the  conduct  of  the 
bailee  amounts  to  an  actionable  tort,  the 
bailor  may  waive  the  contract,  and  bring 
an  action  sounding  in  tort.  On  the  other 
hand,  in  cases  of  mere  gratuitous  agency, 
where  no  property  is  intrusted,  tiie  only 
remedy  which  the  principal  can  have 
against  the  agent  is  by  an  action  ex  delicto, 
And  if  the  agent  has  committed  no  act 
which  amounts  to  an  actioiutblc  tort,  the 
principal  is  without  remedy.  It  should 
be  observed,  however,  that  the  delivery  of 
a  letter  to  be  carried  from  place  to  place, 
or  the  delivery  of  a  promissory  note  or 
bill  of  exchange  for  the  purpose  of  collec- 
tion would  probably  be  held  to  be  proper 
mandates,  and  the   bailee   in   such  cases 


CII.  XII.] 


BAILMENT. 


586-*587 


accrues  from  mere  non-feasance  as  too  remote  to  lay  the  founda- 
tion for  an  action  of  tort;  for  this  purpose  it  requires  that  the 
injury  should  be  the  direct  and  immediate  consequence  of  the 
conduct  complained  of.  (o) 

A  mandatary,  as  we  have  already  intimated,  is  generally 
bound  to  exercise  only  slight  diligence,  and  is  responsible  only 
for  gross  neglect,  {p)    The  parties  may,  however,  vary.*the  terms 


would  be  lield  liable  ex  contractu.  Robin- 
son V.  Threailgill,  13  Ire.  L.  41.  Tbc 
liability  of  banks  for  due  diliircncc  in  the 
collection  of  negotiable  paper  intrusted  to 
them  for  that  purpose,  seems  to  rest  upon 
this  j)rinci[(le.  See  Smedcs  v.  The  Bank 
of  Utica,  20  Johns.  .372,  3  Cow.  6G2 ; 
Bank  of  Utica  v.  McKinster,  11  Wend. 
473  ;  Mechanics  Bank  v.  Merchants  Bank, 
G  Met.  13.  Chancellor  Kent  says  :  "  Re- 
ceiving a  letter  to  deliver,  or  money  to 
pay,  or  a  note  by  a  bank  to  collect,  and 
by  negligence  omitting  to  perform  the 
trust,  the  mandatary,  though  acting  gratu- 
itously, becomes  responsible  for  damages 
resulting  from  bis  negligence.  The  deliv- 
ery and  receipt  of  the  letter,  money,  or 
note,  creates  a  sufficient  consideration  to 
support  the  contract,  and  is  a  ])art  execu- 
tion of  it."     See  2  Kent,  Com.  571,  n.  n. 

(o)  See  Salem  Bank  v.  Gloucester  Bank, 
17  Mass.  1,  30.  The  leaf^pg  case  on  this 
point  in  this  country  is  Tliorne  v.  Deas, 
4  Johns.  84,  already  referred  to.  In  that 
case  A  and  B  being  joint  owners  of  a  ves- 
sel, A  voluntarily  undertook  to  get  the 
vessel  insured,  but  neglected  to  do  so,  and 
the  ves.sel  was  afterwards  lost.  The  court 
held  that  no  action  would  lie  against  A 
for  the  non-pcrformanec  of  tliis  [iromi'^e, 
though  B  sustained  a  damage  therein'. 
Sec  also  Balfc  i;.  West,  22  E.  L.  &  E. 
506. 

(/))  The  Roman  law  seems  to  have  been 
different  in  this  respect.  By  that  law 
every  mandatary  seems  to  have  been 
bound  to  bestow  on  the  matter  with  which 
he  was  charged  all  the  diligence  and  skill 
which  the  improper  execution  of  it  re- 
quired. See  Story  oit  P)ailments,  §  173. 
Sir  William  .lonfx  professed  to  follow  the 
Roman  law  in  this  resjicct,  but  attempted 
to  make  a  distinction  between  a  mandate 
to  ciin-ji  and  a  mandate  to  perform  d  tcork, 
holding  that  the  rule  did  not  apply  to  the 
former,  and  that  mandataries  of  tint  class 
were,  like  depositaries,  liai)le  only  for 
gross  negligence.     Essay  on   Bailments, 

VOL.  I.  52 


52,  62.  Mr.  Justice  Story  is  of  opinion 
that  there  is  no  foundation  for  this  die- 
tinction  in  the  Roman  law,  and  there  cer- 
tainly is  none  in  onr  law.  On  the  other 
hand,  the  rule  is  perfectly  established  with 
us  that  the  same  degree  of  diligence  is  re- 
quired in  cases  of  mandate,  wlK'ther  it  he 
(o  carry  or  to  jjerforrn  a  trork,  as  in  cases  ot' 
deposit.  This  was  very  authoritativelj' 
declared  in  the  case  of  Shiells  v.  Black- 
bume,  1  H.  Bl.  158,  the  facts  of  which  are 
stated  ante,  p.  583,  n.  (m).  Lord  J.ougk- 
boroHf//i  there  observed  :  "  I  agree  with 
Sir  William  Jomn,  that  where  a  bailee 
undertakes  to  perform  a  gratuitous  act, 
from  which  the  bailor  alone  is  to  rcceiye 
benefit,  there  the  bailee  is  only  liable  few- 
gross  negligence  ;  but  if  a  man  gratui- 
tously undertakes  to  do  a  thing  to  the  he« 
of  his  skill,  where  his  situation  or  profes- 
sion is  such  as  to  implj'  skill,  an  omission 
of  that  skill  is  imputable  to  him  as  gross 
negligeitce.  If  in  this  case  a  ship-broker, 
or  clerk  in  the  custom-house,  had  under- 
taken to  enter  the  goods,  a  wrong  entrj 
would  in  them  be  gross  negligence,  be- 
cause their  situation  and  enif)!oyment 
necessarily  imply  a  competent  degree  of 
knowledge  in  making  such  entries.  But 
when  an  application,  under  the  circum- 
stances of  this  case,  is  made  to  a  generai 
merchant  to  make  an  entry  at  the  custom- 
house, such  a  mistake  as  this  is  not  to  Ik- 
imputed  to  him  as  gross  negligence. '^' 
Sec  also,  to  the  same  point,  Stanton  ». 
Bell,  2  Hawks,  145  JiBeardslcc  v.  Rich- 
ardson, 11  Wend.  25.  No  definite  raW» 
can  be  laid  down  as  to  what  will  consti- 
tute gross  ni'gligcncc  in  each  particular 
fase.  For  this  jmrpose,  the  nature  and 
circumstances  of  the  case,  and  the  term* 
of  the  contract,  must  be  carefully  nttciulod 
to.  In  the  case  of  Fcllowcs  r.  (Jordon,  ? 
B.  Monr.  415,  the  plaintiif,  being  indebted 
to  the  defendant  and  holding  a  not<? 
against  the  owners  of  a  certain  steamer, 
delivered  the  note  wiiich  he  so  In  Id  to  the 
defendant  to  be  collected  throuuh  a  certaia 

[613] 


588* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


of  the  contract  at  their  pleasure  by  a  special  agreement.  So  a 
mandatary  may  impose  upon  himself  an  additional  degree  of 
liability  by  his  interfering  with  the  property  committed  to  his 
charge,  by  which  its  custody  is  *rendered  more  insecure,  (c/)  So 
it  may  be  gathered  from  the  cases,  and  from  obvious  reasons, 
that  where  the  work  to  be  done  requires  peculiar  skill  and  care, 
and  the  mandatary  undertakes  it  in  such  way  as  to  be  bound 
to  go  through  with  it,  the  want  of  the  required  skill  and  care 
would   be  negligence   enough.  {?')     Indeed,  it  would  be  in  that 


house  at  New  Orleans,  with  which  the  de- 
fendant, who  had  a  house  at  Louisville, 
was  connected,  the  jiroceeds  to  he  applied 
to  the  payment  of  the  defendant's  demand. 
When  the  note  was  delivered,  the  plaintiff 
informed  the  defendant  that  the  solvency 
of  the  boat  and  owners  was  doubtful,  and 
that  the  only  probable  means  of  saving 
the  claim  was  to  attach  the  boat  at  New 
Orleans  on  her  first  arrival  there  after  the 
note  l)ecame  due,  unless  tiie  note  should 
be  paid.  The  note  was  sent  b}'  tiie  de- 
fendant to  the  house  at  New  Orleans,  by 
wliich  it  was  presented,  and  payment  de- 
manded, on  the  first  arrival  of  the  boat  at 
that  city,  but  on  payment  of  $100,  (one 
si.xth  only  of  the  debt,)  the  boat  was  jicr- 
mittcd  to  depart,  and  on  her  arrival  at 
Nashville  a  short  time  afrerwards,  she 
was  attached  for  other  debts  and'sold,  be- 
fore the  note  was  returned  to  the  plaintiffs, 
for  an  amount  not  sufficient  to  paj'  the  at- 
taching creditors.  The  court  held  this  to 
be  a  breach  of  duty  for  whic'h  the  defend- 
ant was  liable.  And  Marshall,  C.  J., 
said  :  "  Regai-ding-  tiie  houses  at  Louis- 
ville and  New  Orleans  as  merely  gratuitous 
bailees,  still  having  undertaken  the  com- 
mission, and  proceeded  in  its  execution, 
each  was  bound  to  proceed  witii  reasonable 
care  and  diligence  according  to  the  terms 
of  the  mandate.  And  a  failure  in  the  per- 
formance of  this  (|l)ligation  was  a  breach 
of  duty,  for  wliich,  on  well-established 
principles,  the  delinf]ucnt  party  is  liable  in 
case  of  loss  produced  by  his  neglect.  A 
bailee,  receiving  property  under  particular 
directions  as  to  its  disposition,  impliedly 
undertakes  to  dispose  of  it  according  to 
those  directions,  and  may  be  made  liable 
for  the  loss  consequent  upon  his  failure  or 
neglect  to  do  so,  and  especially  if  he  actu- 
ally ])roceed  with  the  business  committed 
to  him."  On  the  other  hand,  in  the  case 
of  Whitney  v.  Lee,  8  Met.  91,  where  a 

[614] 


promissory  note  was  delivered  to  the  de- 
fendant, on  his  voluntarily  undertaking, 
without  reward,  "  to  secure  and  take  care 
of  it,"  it  was  held,  that  he  was  not  bound 
to  take  any  active  measures  to  obtain 
security,  but  was  simply  bound  to  keep  the 
note  carefully  and  securely,  and  receive 
the  money  due  thereon  when  offered. 
Shaw,  C.  J.,  remarked :  "  The  term  to 
'  secure '  may  be  deemed  ambiguous, 
meaning  either  to  obtain  security,  or  to 
keep  securely ;  but  associated  with  tlie 
words  '  take  care  of,'  and  being  a  gratui- 
tous undertaking,  we  do  not  understand 
that  the  defendant  was  to  take  active 
measures  to  obtain  security,  but  simply  to 
keep  the  note  carefully  and  securely,  and 
receive  the  money  due  thereon,  when 
offered.  ThLi  last  authority  and  duty 
would  seem  t*rcsult  from  the  custody  of 

the  note The  law  has  endeavoi'cd 

to  make  a  distinction  in  the  <legrecs  of 
care  and  diligence  to  which  different  bail- 
ees are  bound ;  distinguishing  between 
gross  ncglijiencc,  ordinary  negligence,  and 
slight  negligence  ;  though  it  is  often  dif- 
ficult to  mark  the  lino  where  the  one  ends 
and  the  other  begins.  And  it  must  be 
often  left  to  the  jury,  upon  the  nature  of 
the  subject-matter,  and  the  particular  cir- 
cumstances of  each  case,  with  suitable  re- 
marks by  the  judge,  to  say  whether  the 
particular  case  is  within  the  one  or  the 
other."  See  also  Mechanics  &  Traders' 
Bank  v.  Gordon,  5  Louis.  Ann.  604. 

(q)  Nelson  v.  Macintosh,  1  Starkie, 
237  ;  Bradish  v.  Henderson,  1  Dane's 
Abr.  310. 

(r)  See  the  remarks  of  Lord  Loii(]h- 
borouyh,  in  the  case  of  Shiclls  v.  Black- 
burne,  quoted  ante,  p.  587,  n.  (p).  "  Mr. 
Justice  llmtli  in  the  same  case  said  :  "  If 
a  man  applies  to  a  surgpon  to  attend  him 
in  a  disorder,  for  a  reward,  and  the  sur- 
geon treats  him  improperlj',  there  is  gross 


CII.   XII.] 


BAILMENT. 


*589 


case  gross  *negligence.  Bat  it  might  be  otherwise,  if  the  owner 
had  no  reason  to  believe  that  the  mandatary  possessed  skill  suf- 
ficient for  the  precise  purpose  for  which  he  was  employed ;  and 
certainly  would  be,  if  he  had  good  reason  to  know  that  he  had 
not  the  skill ;  as  if  he  gave  a  valuable  watch  to  be  repaired,  to 


ne^li;:cnce,  and  the  surgeon  is  liable  to  an 
action  ;  the  surgeon  would  also  be  liable 
for  such  negligence,  if  he  undertook  r/ratis 
to  attend  a  sick  pei-son,  because  his  situa- 
tion implies  skill  in  surgery  ;  but  if  the 
j)aticnt  apitlics  to  a  innu  of  a  ditfcrent  em- 
ployment or  occui)ation,  for  his  gratuitous 
assistance,  who  either  does  not  exert  all 
his  skill,  or  administers  improper  remedies 
to  the  l)est  of  his  ability,  such  j)er»on  is 
not  liable."  But  even  a  matidatary  whose 
occupation  implies  peculiar  skill,  is  not 
required  to  exercise  the  greatest  amount  of 
skill;  if  he  exercises  such  skill  as  is  usu- 
ally exercised  by  members  of  his  profes- 
sion, it  is  sufficient.  The  law  upon  this 
subject  is  admirai)ly  stated  by  Mr.  Justice 
Porter,  in  the  case  of  Percy  v.  Millaudon, 
20  Martin,  68,  75.  His  language  was  as 
follows  :  "  It  is  said  by  a  writer  of  great 
authority,  [Pothier,]  who  treats  of  the  doc- 
trine of  mandate,  that  the  mandatary  can- 
not excuse  himself  by  alleging  a  want  of 
ability  to  discharge  the  trust  undertaken. 
Tliat  it  will  not  be  sufficient  for  him  to 
say  he  acted  to  the  best  of  his  ability,  be- 
cause he  should  have  formed  a  more  Just 
estimate  of  his  own  capacity  before  he  en- 
gaged liimself.  That,  if  he  had  nut  agreed 
to  become  the  agent,  the  jirinciijal  could 
have  found  some  other  person  willing  and 
capable  of  transacting  the  business  cor- 
rectly. This  doctrine,  if  sound,  would 
make  the  attorney  in  fact  responsible  for 
every  error  in  judgment,  no  mutter  what 
care  and  attention  he  exercised  in  forming 
his  opinion.  It  would  make  him  liable  to 
the  j)riucipal  in  all  doubtful  cases,  where 
the  wisdom  or  legality  of  one  or  tnore 
alternatives  was  jjreseTiteil  for  his  consid- 
eration, no  nnitter  how  difficult  the  sulyeet 
was.  And  if  the  eml)arrassment,  in  the 
clif)ice  of  measures,  grew  out  of  a  legal 
difiiiulty,  it  would  reipiire  from  him 
knowledge  an<l  learning,  which  the  law 
only  presumes  in  those  who  have  mad^ 
the  jurisprudence  of  their  country  the 
study  of  their  lives,  and  which  knowledge 
often  fails  in  them  from  the  intrinsic  dif- 
ficulty of  the  subject,  and  the  fallibility  of 
human  judgment.  It  is  no  iloubt  true, 
that  if  the  business  to  be  transacted  pre- 


supposes the  exercise  of  a  peculiar  kind  of 
knowledge,  a  person  who  would  accept 
the  office  of  mandatary,  totally  ignorant 
of  the  subject,  could  not  excuse  himself 
on  the  ground  that  he  discharged  his  trust 
with  fidelity  and  care.  A  lawyer  who 
would  undertake  to  perform  the  duties  of 
a  physician  ;  a  physician,  who  would  be- 
come an  agent  to  carry  on  a  suit  in  a 
court  of  justice  ;  a  bricklayer,  who  would 
propose  to  repair  a  shij),  or  a  laiutsnian 
who  would  embark  on  board  a  vessel  to 
navigate  her,  may  be  presented  as  exam- 
ples to  illustrate  this  distinction.  But 
whefn  the  person  who  is  appointed  attor- 
ney in  fact  has  the  qualifications  neces- 
sary for  the  discharge  of  the  ordinary 
duties  of  the  trust  imposed,  we  are  of 
opinion  that  on  the  occurrence  of  difficul- 
ties in  the  exercise  of  it,  which  otfer  only 
a  choice  of  measures,  the  adoption  of  a 
course  from  which  loss  ensues  cannot 
make  the  agent  responsible,  if  the  error 
was  one  into  which  a  prudent  man  might 
have  fallen.  The  contrary  doctrine  seeius 
to  us,  to  suppose  the  possession,  and  re- 
quire the  exercise  of  perfect  wisdom  in 
fallible  beings.  No  num  would  undertake 
to  render  a  service  to  another  on  such 
severe  conditions.  The  reason  given  for 
the  rule,  namely,  that  if  the  nuindatary 
had  not  accei)ted  tlie  otbce,  a  ]jerson  capa- 
ble of  discharging  the  duty  correctly 
would  have  been  found,  is  (juite  unsatis- 
factory. The  person  who  would  have  ac- 
cepted, no  matter  who  he  might  be,  must 
have  shared  in  common  with  him  who  did, 
the  imperfeitlon  of  our  nature  ;  and  con- 
secitu'iitly  nuHt  be  presumed  just  as  liable 
to  have  mistaken  the  correct  c'onise.  The 
test  of  res])onsibility,  therefore,  should  be, 
not  the  certainty  of  wisdom  in  others,  but 
the  pos.se.ssion  of  ordinary  knowledge ; 
and  l)y  showing  that  the  error  of  the  agent 
is  of  so  gross  a  kind,  that  a  man  of  com- 
mon-sense and  ordinary  attention  would 
not  have  fallen  into  it.  The  rule  which 
fixes  responsibility,  because  men  of  un- 
erring sagacity  are  supposed  to  exist,  and 
wouliL  have  been  found  by  the  |>rineipal, 
appears  to  us  essentially  erroneous." 

[615] 


•589- 


TUE   LAW   OF   CONTRACTS. 


[book  III. 


one  whom  he  knew  to  be  not  a  watchmaker;  or  to  one  who, 
although  a  watchmaker,  was  known  by  him  to  be  unaccustomed 
to  watches  of  that  kind.  All  these  differences  rest  upon  the 
ground  of  the  presumed  intention  of  the  parties.  And  on  the 
same  principle,  although  the  subject-matter  of  the  mandate  do 
not  necessarily  imply  superior  skill  in  the  mandatary,  still  if  he 
is  known  to  possess  superior  skill  he  is  bound  to  exercise  it.  [s) 


(s)  Wilson  V.  Brett,  11  M.  &  W.  113. 
This  was  an  action  on  the  case  for  negli- 
gence in  riding  the  plaintiff's  horse.  The 
plaintiff  had  intrusted  the  horse  in  ques- 
tion to  the  defendant,  requesting  him  to 
ride  it  to  Peckham,  for  the  purpose  of 
showing  it  for  sale  to  a  Mr.  Margetson. 
The  defendant  rode  the  horse  to  Peck- 
ham,  and  for  the  purpose  of  showing  it, 
took  it  into  the  East  Surrey  race-ground, 
where  Mr.  Margetson  was  engaged  with 
others  playing  the  game  of  cricket ;  and 
there,  in  consequence  of  the  slippery  na- 
ture of  the  ground,  the  horse  slipped  and 
fell  several  times,  and  in  falling  broke  one 
of  his  knees.  It  was  proved  that  the  de- 
fendant was  a  person  conversant  with  and 
skilled  in  horses.  Rolfe,  B.,  before  whom 
the  cause  was  tried,  told  the  jury  that, 
nnder  the  circumstances,  the  defendant, 
being  shown  to  be  a  person  skilled  in  the 
management  of  horses,  was  bound  to  take 
as  much  care  of  the  horse  as  if  he  had 
borrowed  it.  And  the  Court  of  Ex- 
chequer held  this  instruction  to  be  correct. 
Parke,  B.,  said :  "  I  think  the  case  was 
left  quite  correctly  to  the  jury.  The  de- 
fendant was  shown  to  be  a  person  con- 
versant with  horses,  and  was  therefore 
bound  to  use  such  care  and  skill  as  a  per- 
son conversant  with  horses  might  reason- 
ably be  expected  to  use  :  if  he  did  not,  he 
was  guilty  of  negligence.  The  whole 
effect  of  what  was  said  by  the  learned 
judge  as  to  the  distinction  between  this 
case  and  that  of  a  borrower,  was  this  :  that 
this  particular  defendant,  being  in  fact  a 
person  of  competent  skill,  was  in  effect  in 

[616] 


the  same  situation  as  that  of  a  borrower, 
who  in  point  of  law  re])resents  to  the 
lender  that  he  is  a  person  of  competent 
skill.  In  the  case  of  a  gratuitous  bailee, 
where  his  profession  or  situation  is  such 
as  to  implj'  the  possession  of  competent 
skill,  he  is  equally  liable  for  tiie  neglect  to 
use  it."  Alderson,  B.  "  The  learned 
judge  thought,  and  correctly,  that  this  de- 
fendant being  shown  to  be  a  person  of 
competent  skill,  there  was  no  difference 
between  his  case  and  that  of  a  borrower  ; 
because  the  only  difference  is,  that  there 
the  party  bargains  for  the  use  of  compe- 
tent skill,  which  here  becomes  immaterial, 
since  it  appears  that  the  defendant  has  it." 
liolfe,  B.  "  The  distinction  I  intended  to 
make  was,  that  a  gratuitous  bailee  is  only 
bound  to  exercise  such  skill  as  he  pos- 
sesses, whereas  a  hirer  or  borrower  may 
reasonably  be  taken  to  represent  to  the 
party  who  lets,  or  from  whom  he  borrows, 
that  he  is  a  person  of  competent  skill.  If 
a  person  more  skilled  knows  that  to  be 
dangerous  which  another  not  so  skilled  as 
he  does  not,  surely  that  makes  a  differ- 
ence in  the  liability.  I  said  I  could  see  no 
difference  between  ner/lifjence  and  (jross  uoff- 
ligence  —  that  it  was  the  same  thing,  with 
the  addition  of  a  vituperative  e]jithet." 
It  does  not  distinctly  apj)ear  by  tlie  report 
of  this  case  whetlier  the  bailor  knew  that 
the  bailee  possessed  superior  skill  or  not. 
We  tliink,  however,  it  must  be  j)resumed 
that  he  did  know  it,  or  at  least  had  reason 
to  suppose  that  such  was  the  case.  See 
ante,  \).  577,  u.  (v). 


CH.   XII.]  BAILMENT.  590 


SECTION    III. 

COMMODATUM. 

Where  a  thing  is  borrowed,  to  be  used  by  the  borrower,  with- 
out any  reward  or  compensation  to  be  received  by  the  owner 
from  him,  this  transaction  resembles  the  two  former,  in  so  far 
as  it  is  gratuitous.  But  it  is  unlike  them,  in  that  the  benefit 
belongs  exclusively  to  the  bailee  ;  and  he  is  therefore  bound  to 
great  care,  and  liable  for  slight  negligence,  (ss) 

What  constitutes  this  negligence,  or,  in  general,  what  are  the 
rules  which  belong  to  this  species  of  bailment,  we  cannot  ascer- 
tain to  any  great  extent  from  adjudicated  cases,  as  there  are 
few  or  none  which  distinctly  decide  such  questions.  But  in 
the  case  of  Coggs  v.  Bernard,  so  often  cited,  Holt  lays  down 
certain  principles,  which  he  takes  from  Bracton,  who  borrows 
them  from  the  civil  law.  Resting  upon  such  authority,  and 
also  upon  manifest  reason  and  justice,  they  may  be  deemed  the 
rules  of  law  on  this  subject ;  and  we  give  them  in  a  note  below, 
in  the  words  of  Holt  (/) 

{ss)  Phillips  V.  Condon,  14  111.  84.  mutuum  ct  commodittum  ;  quia    is   qui  rem 

{f)  "  As  to  the  second  sort  of  bailment,  imituani  (trcepit  ad  ipsam  restitufndam  teiie- 

nsiniely,    rommodatum,    or  lendinj^   ijixUis,  tur,  vel  ejus  im-tiam,  si  forte  inci'itdio,  ruina, 
the  borrower  is  bound  to  the  strictest  ct\ro%tiaufra(/io,  aut  latronum  vel  hostium  inrursu, 

and  dili^^cncc,  to  keep  the  goods,  so  as  to  consumiila  fucrit,  vel  deperdita,  suhstracta, 

restore  them  back   again   to  the    lender,  vel  abfnta.     El   qui  rem  utendam  aci-epit, 

because  the  bailee  has  a  benefit  by  the  use  non  sii[ficit  ad  re.i  custodiam,  quodudem  dili- 

of  them,  so  as  if  the  bailee  be  guilty  of  the  gentiam  adliihcut,  qualem  snis  rebus  proimis 

least  neglect,  he  will  be  answerable  ;  as  if  ailhil>rre  soht,  si  alius  earn  dilir/eutius  potuit 

a  man  should  lend  another  a  horse  to  go  custodirc ;  ad  ciiii  autein  majorem  vel  casus 

westward,  or  for  a   month;  if  the  bailee  fort  uilos  non  tenctur  quis,  nisi  culna  sua  in- 

go  northward,  or  kee])  the  horse   above  a  tervenerit.     IJt  sirem  sibi  commmlatamdomi, 

month,    if    any   accident    happen    to    the  secum  dituh-rit  cum  prrrtfre  jrrofcctus  fierit, 

horse  in  the  northern  journey,  or  after  the  et  illam  incursu  hostium  vel  pradonum  vel 

cxjiiration  of  the  month,  the  bailee  will  bo  naufra;iio  aniiserit,  non  *-.s<  dnhium   quin  ad 

ohargealjle  ;  because  he  has  made  use  of  rei  reslitutioucm  tcncatar.    I  cite  this  author, 

the  horse  contrary  to  the  trust  he  was  lent  though  I  confess  he  is  an  old  one,  becau.sc 

to  him  under,  and  it  may  be  if  the  horse  his  opinion  is  reasonable,  and  very  much 

had  been  used  no  otherwise   than   he  was  to   my  present   purpose,  and   there  is  no 

lent,  that  accident  woulii  not  have  befallen  authority  in  the  law  to  the  contrary.     But 

him.     This  is  mentioned  in   IJracton,  fol.  if  the   bailee   ]iut   this  horse  in  his  stable, 

99,  a  ;  liis    words    are  :   Is   autem    cui  res  and  he  were  stolen  from  thence,  the  bailee 

aliipui  ii/<  mill  daliir,  re  olilii/ntiir,  quir  roifi-  shall  not  be  answerable  for   him.     Hut  if 

iiioiliiid  est,  sed  magna  dij/'erentia  est  inter  he  or  his  servants  leave  the  house  or  stable 

52*  [^1'] 


591' 


THE   LAW   OF   CONTRACTS. 


[book   III. 


♦SECTION    IV, 


PIGNUS. 


We  now  enter  upon  a  topic  of  more  interest,  inasmuch  as 
the  questions  which  belong  to  it  are  of  more  frequent  recur- 
rence. 

A  pledge  is  a  bailment  for  the  mutual  benefit  of  both  parties, 
for  while  the  pledgee  obtains  security  for  his  debt,  the  pledgor 
obtains  credit  or  delay,  or  other  indulgence.  The  bailee  is 
therefore  bound  only  to  ordinary  care,  and  is  liable  only  for 
ordinary  neglect.  If  the  pledge  be  lost  by  an  intrinsic  defect, 
which  might  possibly  have  been  remedied,  or  by  a 'casualty 
which  might  possibly  have  been  prevented,  or  by  superior  force 
which  might  possibly  have  been  resisted,  the  bailee  is  still  not 
responsible,  unless  he  was  in  positive  default.  (/<) 


doors  open,  and  the  tliieves  take  the  op- 
portunity of  that,  and  steal  the  horse,  he 
will  be  chargeable  ;  because  the  neglect 
gave  the  thieves  the  occasion  to  steal  the 
horse.  Bracton  says,  the  l)aik'e  must  use 
the  utmost  care,  but  yet  he  shall  not  be 
chargeable  whore  there  is  such  a  force  as 
he  cannot  resist."  See  also  Scranton  v. 
Baxter,  4  Sandford,  .5  ;  Booth  v.  Terrell, 
16  Geo.  20;  2  Ld.  Raym.  915.  A  gra- 
tuitous loan  is  considered  as  strictly  sM 
personal  trust,  unless  from  other  circum- 
stances a  different  intention  can  fairly  be 
presumed.  This  is  well  illustrated  by  the 
case  of  Bringloe  ii.  Morrice,  1  Mod.  210. 
That  was  an  action  of  tresiiass  for  immod- 
erately riding  the  plaintiff''s  mare.  The 
defendant  pleaded  that  the  plaintiff"  lent 
him  the  mare,  and  gave  him  license  to 
ride  her,  and  that  by  virtue  of  this  license 
the  defendant  and  his  servant  had  ridden 
the  mare  alternately.  The  plaintiff"  de- 
murred to  the  plea.  And,  per  curium, 
"  The  license  is  annexed  to  the  person, 
and  cannot  be  communicated  to  another  ; 
for  this  riding  is  a  matter  of  pleasure." 
And  North,  C.  J.,  took  a  difference,  where 
a  certain  time  is  limited  for  the  loan  of  the 
horse,  and  where  not.  In  the  first  case, 
the  party  to  whom  the  horse  is  lent  hath 
an  interest  in  the  horse  during  that  time, 
[618] 


and  in  that  case  his  servant  may  ride,  but 
in  the  other  case  not.  A  ditt"erenee  was 
also  taken  betwixt  hiring  a  horse  to  go  to 
York,  and  borrowing  a  horse  ;  in  the  first 
place,  the  party  may  let  his  servant  ride  ; 
in  the  second  not.  But  where  a  horse 
was  for  sale,  and  the  agent  of  the  vendor 
let  A  have  the  horse  for  the  ])ur]wsc  of 
trying  it,  A  was  held  justified  in  putting  a 
competent  person  upon  the  horse  to  try  it, 
an  authority  to  do  so  iteing  implied.  Lord 
Camoys  r.'Scurr,  9  C.  &  P.  38.3. 

(h)  Commercial  Bank  v.  Martin,  1 
Louis.  An.  Rep.  344.  In  this  case  the 
court  say  a  pledgee  is  bound  to  take  that 
care  of  the  property  pledged  which  a  pru- 
dent person  {di/igens  paler  fuiniliafi)  would 
take  of  his  own.  But  he  is  not  bound  to 
use  the  utmost  diligence.  And  where  it 
becomes  necessary  for  a  pledgee,  in  the 
exercise  of  the  diligence  refjuired  of  him, 
to  employ  an  agent  on  account  of  his  par- 
ticular profession  and  skill,  he  will  not  be 
responsible  for  the  misconduct  or  neglect 
of  the  latter,  where  reasonable  care  was 
shown  in  the  clioice  of  the  agent,  as  to  his 
skill  and  ability.  See  "also,  Exeter  Bank 
V.  Gor  Ion,  8  New  Hamp.  06  ;  Goodall  v. 
Richardson,  14  id.  567.  The  general  rule 
of  law,  where  a  person  receives  bonds  oi 
notes  for  collection,  as  collateral  security 


en.  xil] 


BAILMENT. 


*592-*o93 


*He  has  a  special  property  in  the  pledge  ;  and  may  maintain 
any  action,  which  requires  such  property  in  the  plaintill',  against 
a  third  party,  for  an  injury  to  the  pledge  ;  (v)  and  a  judgment 
in  such  action  brought  by  the  pledgee  or  by  the  pledgor  would 
bar  an  action  for  the  same  cause  by  the  other  party,  (iv) 

He  has  generally  only  a  right  to  hold  ;  and  if  he  uses,  it  is  at 
his  own  peril ;  and  he  is  liable  for  any  loss  which  occurs  while 
using.  If  he  derive  a  profit  from  this  use,  he  must  allow  for  it ; 
unless  this  use  was  equally  profitable  to  the  owner.  If  the 
pledge  be  a  horse,  the  bailee  may  use  it  enough  to  keep  the 
horse  in  health,  without  paying  for  this  use;  but  *if  he  take  a 
journey  with  it  he  must  pay.  He  may  milk  a  cow;  and  indeed 
ought  to,  because  not  to  milk  her  would  injure  the  owner,  by 
hurting  the  cow;  nevertheless  he  must  account  for  the  milk,  be- 
cause he  derives  a  positive  profit  from  it.  The  question  of  use 
sometimes  resolves  itself  into  more  or  less  of  resulting  injury; 
thus,  he  may  use,  carefully,  books,  although  perhaps  any  use  of 
them  implies  some  slight  injury  ;    but  not  clothes,  for  these  are 


for  a  dc'l)t,  is  that  he  is  hound  to  use  due 
dilifrencc  ;  and  if  they  arc  lost  throu;j:Ii  liis 
ne,t;;li<::enc-e,  hy  tlie  insolvency  of  the 
nnikcrs,  he  is  charfrcahle  with  the  amount. 
Noland  r.  Clark,  U)  B.  Monr.  239. 

(i-)  It  is  also  detidcd  in  the  case  of 
Gii>son  t".  Jjoyd,  1  Kerr's  N.  B.  Hep.  150, 
that  an  artion  will  lie  in  favor  of  tiie 
pawnee  a^^ainst  tlic  general  owner,  when 
the  rifihts  of  the  former  are  invaded  hy 
tlie  hitter.  That  was  an  action  of  replevin 
for  a  mare.  It  appeared  that  the  mare  in 
qiiestion  was  the  iJiojierly  of  the  defend- 
ant, and  had  heen  delivered  hy  him  to  the 
plaintiff  as  a  pledge.  The  defendant 
afterwards  took  the  marc  from  the  plain- 
tiW's  |)ossession,  whcreu))on  the  ]dainiiff 
brought  tliis  action,  and  tiie  court  held 
that  he  was  entitled  to  recover.  C'/u'iiiikiii, 
C.  J.,  said  :  "  'i'his  is  an  action  of  replevin 
for  a  mare,  in  which  the  defcmlant  pleaded 
property  in  himself,  and  also  property  in 
a  third  per.-;on  ;  and  the  plaintitf  replied  to 
each  plea  that  the  projjerty  was  in  him- 
self; upon  which  issue  was  taken.  From 
tiie  testimony  in  the  case,  it  appeared  tlint 
the  mare  lielonged  to  the  defendant,  and 
was  dclivt'i-cd  to  the  idaintitf  as  a  security 
for  a  del)t  due  from  the  defeiul.int  to  the 
plaintiff ;  the  contract  betw  ecu  them  there- 


fore was  clearly  that  of  a  pawn  or  pledge  ; 
and  the  defendant  and  ])laintiff  stood  in 
the  situation  of  pawnor  and  pawnee.  In 
this  state  of  things  the  defendant  took  the 
mare  from  the  jilaintitt".  It  is  now  con- 
tended on  the  part  of  the  defendant,  that 
he  being  the  (/ciurdl  owner  of  the  mare, 
the  plaintiti'  cannot  maintain  this  action 
of  replevin  against  him.  It  is  admitted 
to  he  clear  law  that  the  pawnee  may 
maintain  replevin  against  a  stranger,  and 
the  right  to  retain  the  thing  pawned,  until 
the  dei)t  is  )iaid,  cannot  he  jiir/irt  unless 
this  right  of  possession  is  iinlefeasihle,  and 
not  lial)le  to  he  invaded  or  interfered  with 
by  the  debtor,  although  he  bu  the  general 
owner  of  the  tiling  pawned.  Tlie  fallacy 
of  the  argument  on  tlie  part  of  the  de- 
fendant apjiears  to  lie  in  the  extent  of 
signification  given  to  tiie  term  'general 
owner.'  lie  remains  the  general  owner, 
subject  to  the  riglit  of  the  |iawnee  ;  he  has 
jiarted  with  his  ah.solute  right  of  disposing 
of  tlie  cliattel  until  he  has  rcdecmc<l  it 
from  it.s  state  of  pledge Tiicre  can- 
not, I  conceive,  I)e  a  particle  of  doiiin  that 
this  action  is  maintainable." 

((/•)  48  Ed.  3,  20  b,  pi.  8  ;  20  II.    7,    '» 
b,  pi.  15 ;  Flcwellin  v.  Rave,  1  Bulst.  68. 

[Gl'J] 


I 


594* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


more  rapidly  worn  out,  and  necessarily  more  injured  by  use.  (x) 
But  even  if  he  use  the  pawn  tortiously,  he  is  only  liable  to  an 
action  ;  his  lien  upon  it  not  being  thereby  terminated.    (//) 

In  all  cases  the  pledgee  must  account  for  income  or  profits 
derived  from  the  pledge ;  and  where  he  is  put  to  expense  or  ex- 
traordinary trouble  to  preserve  the  value  of  the  pledge,  he  may 
charge  the  owner  for  it,  unless  there  be  a  bargain  to  the  con- 
trary, or  the  nature  of  the  case  negatives  his  right  to  make  such 
charge. 

If  the  pledge  be  stolen  from  him  he  is  not  liable,  unless  the 
theft  arose  from  or  was  connected  with  a  want  of  ordinary  care 
on  his  part,  (z)  By  the  civil  law,  the  theft  raised  the  presump- 
tion of  neglect,  and  the  bailee  was  responsible  unless  he  could 
show  an  absence  of  negligence  on  his  part.  We  doubt  whether 
this  be  the  rule  of  the  common  law.  If  the  pledge  be  stolen, 
the  theft  does  not  of  itself  discharge  the  *  bailee  ;  but  the  bailor 
may  make  him  responsible  by  showing  that  it  happened  through 
a  want  of  ordinary  care. 

By  the  civil  law,  in  the  case  of  pig-mts,  the  possession  of  the 
thing  pledged  passed  to  the  creditor;  in  the  case  of  h/jpothcca, 
the  possession  of  the  thing  hypothecated  remained  with  the 
owner.  This  distinction  has  not  been  deemed  of  great  impor- 
tance in  England,  and  the  difference  between  a  pledge  and  a 
mortgage  has  not  until  lately  been  strongly  marked.  In  recent 
times,  however,  and  in  this  country,  this  distinction  is  assuming 
a  new  importance.     In  all  our  commercial  cities,  the  pledg-in^ 


(x)  In  Coggs  V.  Bernard,  Lord  IJoIt 
makes  the  following  remarks  upon  the 
right  of  tiie  pledgee  to  nse  the  pledge 
while  in  his  possession  :  —  "If  the  pawn 
be  such  as  it  will  bo  the  worse  for  using, 
the  pawnee  cannot  use  it,  as  clotiies,  &e., 
but  if  it  be  such  as  will  be  never  the 
worse,  as  if  jew'els  for  the  purpose  were 
pawned  to  a  lady,  she  might  use  them. 
But  then  she  must  do  it  at  her  peril,  for 
whereas  if  she  keeps  them  locked  up  in 
her  cabinet,  if  her  cabinet  should  l)e  broke 
open,  and  the  jewels  taken  from  thence, 
she  would  be  excused  ;  if  she  wears  them 
abroad,  and  is  there  robbed  of  them,  she 
will  be  answerable.  And  the  reason  is, 
because  tlic  pawn  is  in  the  nature  of  a 
deposit,  and  as  such  is  not   liable   to  be 

[G20] 


used.  And  to  this  effect  is  Ow.  12.3.  But 
if  the  pawn  be  of  such  a  nature  as  tlic 
pawnee  is  at  any  charge  about  the  thing 
pawned,  to  maintain  it,  as  a  horse,  cow, 
&c.,  then  the  ))awnee  ma}'  use  the  horse 
in  a  reasonable  manner,  or  milk  the  cow, 
&c.,  in  recompense  for  the  meat."  See 
also  Mores  v.  Conham,  Owen,  123; 
Anonymous,  2  Salk.  522 ;  Thompson  v. 
Patrick,  4  Watts,  414. 

(y)  Thompson  v.  Patrick,  4  Watts,  414. ' 
(-)  Sir  William  Jones's  distinction  (Es- 
say on  Bailments,  75)  between  clandes- 
tine theft  and  violent  theft,  taken  from  the 
civil  law,  is  not  sustained  liy  common  law 
authorities.  See  Co.  Litt.  89  a ;  South- 
cote's  case,  4  Co.  83  b. 


CH.  XII.] 


BAILMENT. 


*59o 


of  personal  property,  especially  of  stocks,  has  become  very  com- 
mon, and  recent  cases  have  established,  or  at  least  affirmed, 
rights  and  liabilities  peculiar  to  such  contract,  and  quite  differ- 
ent from  those  which  attend  a  mortgage,   (a) 

It  was  undoubtedly  a  rule  of  the  ancient  common  law  of 
England  that  delivery  was  essential  to  a  pledge;  and  the  *  dif- 
ference between  a  pledge  and  a  mortgage  consisted  in  this: 
The  possession  of  the  pledge  passed  to  the  pledgee,  but  the 
property  did  not  pass;  a  thing  mortgaged  might  remain  in  the 
possession  of  the  mortgagor,  but  the  right  of  property  passed  to 
the  mortgagee.  The  pledgee  held  the  pledge  until  his  debt  was 
paid,  the  pledge  itself  remaining  the  property  of  the  pledgor.  The 
mortgagee  acquired  the  property  of  the  thing  mortgaged,  the 
mortgagor  parting  with  the  property  as  in  the  case  of  a  sale,  re- 
serving only  the  right  to  defeat  the  transfer  and  re-acquire  the 
property  by  paying  the  debt.  But  this  distinction  has  not 
always  been  recognized,  or,  at  least,  not  accurately  observed. 
It  seems,  however,  to  be  now  held,  that  possession  of  a  pledge 


(a)  In  Cortclyou  v.  Lansing,  2  Caincs' 
Cas.  ill  Error,  200,  the  distinction  between 
a  pledjre  and  a  niortgaj;e,  and  tiie  peculiar 
qualities  of  a  plcd^^c,  are  very  fully  and 
ably  considered.  In  Barrow  v.  Paxton, 
5  Johns.  260,  the  case  of  Cortelyou  i\  Lan- 
sinjr  beinir  cited  by  counsel,  Amt,  C.  J., 
said  :  —  "  That  case  was  never  decided  by 
this  court.  It  was  arj^ued  once,  and  I  had 
prepared  the  written  opinion  whicii  ap- 
pears in  the  rejjort  of  Mr.  Caines ;  but  the 
court  directed  a  second  arfrument,  which, 
for  sonic  j-ea.son  or  other,  was  never 
brou;iht  on,  so  that  no  decision  took  |dace 
on  the  points  raised  in  the  cause.  How 
my  o|)inion  ;rot  into  print  I  do^ot  know. 
It  was  jirobably  lent  to  some  of  the  bar, 
and  a  c()])y  taken,  wiiich  the  rej>orter  lias 
erroneously  published  as  the  opinion  of 
tliis  court."  'I'liis  circumstance  may  les- 
sen its  authority.  Hut  as  Chancellur  Ki-nt 
has  referred  to  it  in  his  Commentaries,  we 
venture  to  do  so  also.  Whatever  be  its 
authority,  of  its  instructi\cness  there  can 
be  no  doubt.  The  learned  jiidj^e  says  :  — 
"  'J'he  note  in  question  came  under  tlie 
strict  dftiiiition  of  a  |>lcd^c.  It  was  de- 
livered to  the  defendant,  with  a  ri^ht  to 
detain  its  a  security  for  his  debt,  but  the 
Icf^al  property  did  not  pass,  as  it  does  in 
the  ease  of  a  mortgage,  with  a  condition 


of  a  defeasance.  The  general  ownership 
remained  with  the  intestate,  and  only  a 
special  property  passed  to  the  defendant. 
It  is,  therefore,  to  be  distinguished  from  a 
mortgage  of  goods,  for  that  is  an  absolute 
])ledge,  to  become  an  absolute  interest  if 
not  redeemed  at  a  fixed  time.  Besides, 
delivery  is  essential  to  a  pledge ;  but  a 
mortgage  of  goods  is,  in  certain  cases, 
valid  without  delivery.  The  mortgage 
and  the  pledge  or  pawn  of  goods  seem, 
however,  generally  to  have  been  con- 
founded in  the  books,  and  it  was  not  until 
lately  that  this  just  discrimination  has  been 
well  attended  to  and  explained."  See 
also  Homes  v.  Crane,  2  Tick.  607  ;  Jones 
V.  Smith,  2  Ves.  Jr.  372,  378  ;  Brownell 
V.  Hawkins,  4  Barb.  491.  In  this  last 
case,  Marriti,  J.,  said  :  "  A  mortgage 
is  a  sale  of  goo<ls,  with  a  condition  that 
if  the  mortgagor  jierfornis  some  act  it 
shall  be  void.  If  the  condition  is  not 
])erformed,  the  goods  become  the  absolute 
property  of  the  mortgagee.  Before  the 
hap|)eningof  the  contingency,  upon  which 
the  title  is  to  be  defeated  or  become  abso- 
lute, the  possession  of  the  goods  may  be 
in  the  mortgagor  or  the  mortgagee.  In  the 
case  of  a  pledge,  the  property  must  be  de- 
livered to  the  pawnee.  Tliis  is  of  the  very 
essence  of  a  pledge." 

[G21] 


596* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


must  be  delivered  to  the  pledgee ;  (/;)  that  this  possession  may- 
be according  to  the  nature  of  the  thing,  and  where  the  pledge 
does  not  permit  of  manual  delivery,  but  consists  of  stocks,  which 
are  transferred  upon  the  books  of  the  company  with  issue  of  a 
new  certificate,  if  the  transfer  be  to  secure  a  debt,  and  the  debtor 
has  a  right  to  the  restoration  of  the  property  on  payment  of  the 
debt  at  any  time,  the  transaction  is  a  pledge  and  not  a  mortgage, 
although  the  legal  title  passes  to  the  creditor.  This  is  a  very 
nice,  and  perhaps  a  difficult  distinction ;  but  as  a  consequence 
of  it,  it  is  held  that  the  creditor  takes  the  stock  only  to  hold, 
and  not  to  use;  that  the  property  is  not  in  him  ;  that  he  cannot 
sell  the  stock  until  the  debt  is  due,  and  that  if  it  be  payable  on 
demand,  or  payable  presently  without  demand,  he  caimot  sell 
until  demand,  even  if  it  was  agreed  between  the  parties  that  he 
might  sell  without  notice  to  the  debtor;  that  if  he  sells,  trover 
may  be  maintained  against  him  by  the  debtor,  as  for  a  wrong- 
ful conversion,  although  the  debt  be  not  paid.  As  to  the  dam- 
ages, it  seems  that  the  debtor  may  recover,  if  the  stocks  had 
risen  in  value,  that  enhanced  value.  Whether,  if  the  stocks  had 
risen  and  fallen,  the  debtor  is  limited  to  the  value  at  the  time  of 
the  unauthorized  sale,  or  may  have  the  highest  value  down  to 
the  time  of  trial,  is  not  certainly  decided  ;  but  it  seems  that  he 
may  have  the  highest  value,  (c)    *  In  this  power  of  disposal,  the 


(6)  See  the  cases  cited  in  the  preceding 
note. 

(c)  All  these  points  were  elaborately 
consiilercti  in  the  late  case  of  Wilson  r. 
Little,  1  Sandf.  351,  2  Comst.  443.  It 
was  an  action  on  the  case  for  not  return- 
ing stock  pledged,  and  for  unlawfully  sell- 
ing the  same.  The  case  came  on  origi- 
nally in  the  Superior  Court  of  the  city  of 
New  York,  and  was  tried  before  Sandford, 
J.  It  appeared  that  on  the  20th  of  De- 
cember, 184.5,  the  plaintiff  borrowed  of  tlie 
defendant  the  sum  of  $2,000,  and  gave  his 
promissory  note  therefor,  payable  pres- 
entl}'.  The  plainritf  at  the  same  time 
transferred  to  the  defendant  fifty  shares  of 
the  consolidated  capital  stock  of  the  New 
York  and  Erie  Railroad  Company.  The 
transfer  was  made  on  the  books  of  the  cor- 
poration, where  it  was  standing  in  the 
plaintiff's  name,  and  was  absolute  in  its 
terms.     In  the  note,  however,  given   by 

[622] 


plain»iff  to  defendant,  the  stock  was  men- 
tioned as  having  been  deposited  with  de- 
fendant "  as  collateral  security,"  with 
authority  to  sell  the  same,  on  ^he  non-per- 
formance of  the  promise  contained  in  the 
note,  without  notice  to  the  plaintiff.  Af- 
terwards, and  between  the  23d  of  Decem- 
ber and  the  3d  of  January,  following  the 
date  of  the  loan,  the  plaintiff's  agent  ap- 
plied to  the  defendant  several  times,  to 
repay  the  loan,  and  have  the  stock  retrans- 
fcrred.  The  defendant  did  not  comply 
with  his  request,  and  it  afterwards  ap- 
peared that  he  had  sold  the  plaintiff's 
stock  on  tlie  24th  or  25th  of  December. 
Between  tlie  23d  of  Deccmb;'r  and  the 
3d  of  January,  the  market  value  of  the 
stock  in  question  rose  from  about  sixty- 
eight  dollars  i)er  share  to  eiglity-five  dol- 
lars per  share.  On  these  facts  a  verdict 
was  taken  for  the  plaintiff",  subject  to  the 
opinion  of  the  court.     The  court  held,  1. 


en.  XII.] 


BAILMENT. 


•597 


mortgagee  differs  gi-eatly  from  a  pledgee.     For  it  is  every  day's 
practice  for  a  mortgagee  to  *  sell  his  mortgage,  and  this  sale  trans- 


Tliat  the  defoiidant  liad  no  rifrlit  to  sell 
the  stock  until  he  Iiatl  first  demanded  pay- 
ment of  the  phiintiff.  2.  That  tlie  me;is- 
ure  of  damajres  was  the  value  of  the  stork 
on  the  3d  of  January.  Upon  the  first 
point,  Vdndtrpofl,  J.,  delivcriiifr  the  opinion 
of  the  court,  said  :  "  The  defendant  held 
the  stock  in  ipicstion  as  pledjree.  It  was 
pledged  to  secure  the  payment  of  a  note 
of  S'J.OOO,  payahle  on  demand.  A  pledfree 
cannot  dispose  of  the  pledjirc  until  the 
])lefljror  has  failed  to  comply  with  his  en- 
gairenients.  If  the  pledgee  sells  the  pledtre 
without  authority,  it  is  a  violation  of  his 
trust.  It  is  here  contended,  that  as  the  note 
was  payahle  on  demand,  the  plaintiff  was 
in  default  for  not  |)aying-  it  the  moment 
the  note  was  given,  and  that  the  i)k'dgec, 
Ijcfore  selling  the  stock,  was  not  hound  to 
demand  the  amount  loaned.  Tlie  cases 
of  sale  by  the  pledgee,  to  he  found  in  the 
books,  are  generally  those  where  notes 
were  payable  at  a  future  day,  and  where 
the  pledgee  sold  the  thing  pledged,  before 
the  notes  matured.  There  the  jjledgee 
was  clearly  in  the  wrong ;  for  the  pledgor 
hail  not  failed  to  comply  with  his  engage- 
ment. Where  st()ck  or  other  property  is 
pledged  as  collateral  security,  to  secure 
the  payment  of  a  note  payahle  on  demand, 
can  the  pledgee  proceed  to  sell  immedi- 
ately, without  first  demanding  the  amount 
of  the  note  ?  This,  in  the  absen<e  of  ju- 
dicial authority,  would,  to  our  minds,  he 
repugnant  to  the  fair  imi)ort  ami  <\mh  of 
the  contract."  After  a  careful  examina- 
tion of  the  authorities,  the  learned  Judge 
continues  :  "  It  may  then  be  safely  as- 
sumed, that  where  an  article  is  pledged  to 
secure  a  debt,  payahle  on  demand,  the 
|)led^^ee  cannot  sell,  without  first  demand- 
ing paynienfof  tlu^  debt  p\\  ik-maud.  A 
contrary  rulr-  would,  in  its  practi'^al  oper- 
ation, be  wholly  destructive  to  the  exist- 
ence of  a  general  property  in  the  pawnor. 
Every  vestige  of  the  pawnor's  interest  in 
tlie  pledge  might  be  destroyed,  (an<l  that 
too  without  his  knowledge,)  within  an  hour 
after  tlie  |)awuce  is  clothed  with  his  mere 
special  property."  In  reference  to  the 
measure  of  damages,  the  learned  judge 
said  :  "  It  is  contended  that  in  (rovtr 
the  tiuc  mia-:urc  of  damages  is  the  value 
of  the  pr«)])erty  at  the  time  of  its  conver- 
sion, whiih,  as  the  defendant  contends, 
was  on  the  27th  of  December,  when  the 
stock  ranged  in  the  market  from  67i  to  68 


per  cent.  But  the  present  is  not  in  form, 
nor  indeed  is  it  in  substance,  an  action  of 
trover.  It  is  a  special  action  on  the  case, 
and  I  cannot  imagine  why  assnnifisit  could 
not  also  have  been  maintained,  for  not  re- 
turning to  the  ])laintiff  his  stock,  after 
tender  to  the  defendant  of  the  amount  for 

which  it  was  pledged 

This  not  being  an  action  of  trover,  the 
true  measure  of  damages  is  the  Aalue  of 
the  stock  on  the  3d  of  January,  when 
stock  was  sold  for  $85  per'share.  On  that 
day  the  final  interview  took  place  between 
the  defendant  and  Mr.  Cutting,  the  agent 
of  the  plaintifi'.  The  defendant's  ofler  and 
conversation  on  that  day  may  be  regarded 
as  constituting  the  final  breach.  But  if  it 
were  otherwise,  had  the  breach  occun-ed 
earlier,  the  rule  of  damages  would  have 
been  the  highest  value  of  the  stock  between 
the  actual  refusal  of  the  defendant  to 
return  the  same,  on  being  ottered  the 
amount  for  which  it  was  pledged,  and  the 
commencement  of  the  suit."  A  question 
was  made  also  as  to  whether  the  iilaimiff 
should  have  tendered  to  the  defendant  the 
amount  due  him  before  bringing  his 
action.  The  court,  however,  were  of 
opinion  that  the  evidence  proved  that  a 
tender  was  made,  and  so  tliis  point  was 
not  passed  upon.  The  cjisc  was  after- 
wards carried  up  to  the  Court  of  Appeals. 
In  that  court  a  cpiestion  was  raised  which 
had  not  been  suggested  in  the  court  below, 
namely,  whether  the  transaction  in  (jues- 
tion  did  not  amount  to  a  mortgage  instead 
of  a  pledge,  on  the  ground  that  the  legal 
title  to  the  stock  became  vested,  by  the 
transfer,  in  the  defendant.  Upon  this  part 
of  the  case,  Hiif/r/fes,  J.,  delivering  the 
opinion  of  the  court,  said  :  "  It  is  con- 
tended, on  the  part  of  the  defendant,  that 
the  transaction  was  a  mortgage  and  not  a 
pledge;  that  the  money  was  payable  im- 
mediately, and  the  stock  became  abso- 
lutely the  i)ro])erty  of  the  appellant,  and 
was  only  redeemable  in  C(piity.  If  this 
be  true,  the  Supreme  Court  and  the  court 
for  the  correction  of  errors  must  have  n-n- 
dered  their  judgments  in  the  case  of  Allen 
r.  Dykers,  3  Hill,  .593,  7  id.  498,  upon  a 
mistaken  view  of  the  liiw.  In  that  ease, 
as  in  the  present,  there  was  a  loan  oif 
money,  a  promissory  lutte  for  the  payment 
of  the  amount,  in  which  it  was  stated  that 
the  borrower  had  deposited  with  the  lenders 
as  collateral  securitv,  with  authority  to  sell 

[623] 


598* 


THE   LAW   OF  CONTRACTS. 


[book   III. 


fers  the  right  of  property  from  himself  to  the  purchaser,  subject 
to  the  redemption  of  *the  mortgagor.     But  the  pledgee,  having 


the  same  on  the  non-performance  of  the 
promise,  250  sliares  of  a  stock  therein 
mentioned.  Tlie  money  in  that  case  was 
payable  in  sixty  days  —  the  sale  was  to  be 
made  at  the  board  of  brokers,  and  notice 
waived  if  not  ])aid  at  maturity.  The 
stock  was  assigned  to  the  lenders  of  the 
money,  and  the  transfer  entered  on  the 
books  of  the  company,  on  the  day  the  note 
was  given.  With  respect  to  the  cpiestion 
whether  the  stock  was  mortgaged  or 
pledged,  I  can  perceive  no  dift'erence  be- 
tween that  case  and  the  present.  The 
question  does  not  appear,  liy  the  report 
of  that  case,  to  have  been  raised'.  It 
would  have  been  a  decisive  point,  for  if  it 
had  ijeen  a  mortgage,  and  not  a  pledge, 
the  plaintiff  must  have  failed.  The  sale 
of  the  stock  in  that  ease,  by  the  lender, 
before  the  maturity  of  the  note,  did  not 
make  it  the  less  tfecisivc.  If  there  had 
been  good  ground  for  saying,  in  Allen  v. 
Dykers,  that  the  stock  was  morfr/iir/cd  and 
not  pkdged,  it  is  not  to  be  bclievecl  that  it 
would  have  escaped  the  attention  of  the 
eminent  counsel  who  argued  the  cause, 
and  of  both  the  courts  ;.  and  on  examining 
the  question,  I  am  satisfied  that  if  the 
point  lind  been  taken  it  would  have  been 
overruled.  The  argument  of  the  defend- 
ant in  this  case  is  founded  on  the  assump- 
tion that  when  personal  things  are  pledged 
for  the  payment  of  a  debt,  the  general 
property  and  the  legal  title  always  remain 
in  the  pledgor ;  and  that  in  all  cases  where 
the  legal  title  is  transferred  to  the  creditor, 
the  transaction  is  a  mortgage  and  not  a 
pledge.  This,  however,  is  not  invariably 
true.  But  it  is  true  that  possession  must 
uniformly  accompany  a  ])ledge.  The  right 
of  the  pledgee  cannot  otherwise  be  con- 
summated. And  on  this  ground  it  has 
been  doubted  whether  incorporeal  things 
like  debts,  money  in  stocks,  &c.,  which 
cannot  l)e  manually  delivered,  were  the 
proper  subjects  of  a  pledge.  It  is  now 
held  that  they  are  so  ;  and  there  seems  to 
bo  rip  reason  why  any  legal  or  equitable 
interest  whatever  in  personal  property 
may  not  be  pledged  ;  provided  the  interest 
can  be  put,  by  actual  delivery  or  by  written 
transfer,  into  the  hands  or  within  the 
power  of  the  ])ledgec,  so  as  to  be  made 
available  to  him  tor  the  satisfaction  of  tlie 
debt.  Goods  at  sea  may  be  passed  in 
pledge  by  a  transfer  of  the  muniments  of 
title,  as  by  a  written  assignment  of  the  bill 

[624] 


of  lading.  This  is  equivalent  to  actual 
possession,  because  it  is  a  delivery  of  the 
means  of  obtaining  possession.  And 
debts  and  choses  in  action  are  capable,  by 
means  of  a  written  assignment,  of  being 
conveyed  in  ])lcdgc.  The  capital  stock  of 
a  corporate  company  is  not  capable  of 
manual  delivery.  The  scrip  or  certificate 
may  be  delivered,  but  that  of  itself  does 
not  carry  with  it  the  stockholder's  interest 
in  the  corporate  funds.  Nor  does  it  neces- 
sarily put  that  interest  under  the  control 
of  the  pledgee.  The  mode  in  which  the 
cajiital  stock  of  a  corporation  is  transferred 
usually  depends  on  its  by-laws.  It  is  so 
in  tlie  case  of  the  New  York  and  Eric  Rail- 
road Company.  The  case  does  not  show 
what  the  by-laws  of  that  corporation  were. 
It  may  be  that  nothing  short  of  the  trans- 
fer of  the  title  on  the  books  of  the  com- 
pany would  have  been  suttieient  to  give 
the  defendants  the  absolute  possession  of 
the  stock,  and  to  secure  them  against  a 
transfer  to  some  other  person.  In  such 
case  the  transfer  of  the  legal  title  being 
necessary  to  the  change  of  possession,  is 
entirely  consistent  with  the  pledge  of  the 
goods.  Indeed  it  is  in  no  case  inconsistent 
with  it,  if  it  appears  by  the  terms  of  the 
contract  that  the  debtor  has  a  legal  right 
to  the  restoration  of  the  pledge  on  pay- 
ment of  the  debt  at  any  time,  although 
after  it  falls  due,  and  before  the  creditor 
has  exercised  the  power  of  sale.  Keeves 
I'.  Capper,  5  Bing.  N.  C.  13G,  was  a  case  in 
which  the  debtor '  made  over '  to  the  cred- 
itor, '  as  his  property,'  a  chronometer, 
until  a  debt  of  £.50  should  be  repaid.  It 
was  held  to  be  a  valid  pledge.  In  the 
present  case,  the  note  for  the  repayment 
of  the  loan  and  the  transfer  of  the  stock 
were  parts  of  die. same  transaction,  and 
are  to  be  construed  together.  The  trans- 
fer, if  regarded  by  itself,  is  absolute,  but 
its  oiiject  and  character  is  qualified  and 
explained  l>y  the  contemporaneous  paper 
which  declares  it  to  be  a  dcjiosit  of  the 
stock  as  collateral  security  for  tiic  payment 
of  $2,000,  and  there  is  nothing  in  the  in- 
strument to  work  a  forfeiture  of  the  right 
to  redeem  or  othei'wise  to  defeat  it,  except 
by  a  lawful  sale  under  the  power  exju-essed 
in  the  paper.  The  general  ju-operty  which 
the  pledgor  is  said  usually  to  retain,  is 
nothing  more  than  a  legal  right  to  the 
restoration  of  the  thing  pledged,  on  pay- 
ment of  the  debt.     Upon  a  fair  construe- 


I 


CII.  XII.] 


BAILMENT. 


*o99 


only  the  possession  and  not  the  property,  cannot  transfer  the 
property;  and  holding  only  for  security,  cannot  sell  until  the 
debt  becomes  due  and  is  unpaid. 

*  Where  stock  was  pledged  to  a  stockbroker,  and  a  note  given 
with  it,  stating  that  the  stock  was  deposited  as  collateral  secu- 
rity, with  authority  to  sell  the  same  at  the  board  of  brokers,  if 
the  note  was  not  paid  at  maturity,  evidence  was  offered  of  an 
uniform  usage  of  brokers  to  dispose  of  stock  so  pledged  at  their 
pleasure,  and  at  any  time,  before  or  after  the  maturity  of  the 
note,  and  when  the  debt  was  paid,  return  an  equal  number  of 
shares  of  the  same  kind  ;  but  this  evidence  was  rejected  as  con- 
trary to  the  law  regulating  these  transactions,  and  inconsistent 
with   the   express   terms    of  the  contract.  {(I)     Nor  could  the 


tion  of  the  note  and  tlic  transfer  taken  to- 
j;etlier,  this  ri<;ht  was  in  the  ])laiiitifF,  un- 
less it  was  defeated  by  tlie  sale  whieli  tlie 
defendant  made  of  the  stoek.  In  eveiy 
eontraet  of  piedf^e  there  is  a  right  of  re- 
demption on  tlie  part  of  the  debtor.  But 
in  this  ease  that  right  was  illusory  and  of 
no  value,  if  the  creditor  eould  instantly, 
witli(jut  demand  of  i)aymcnt  and  without 
notice,  sell  the  thing  pledged.  We  are 
not  reipiired  to  give  the  transaction  so  un- 
reasonable a  construction.  The  borrower 
agi-eed  that  the  lender  might  sell  without 
notice,  but  not  that  he  might  sell  without 
demand  of  payment,  which  is  a  ditVerent 
thing.  The  lender  might  have  brought 
his  action  immediately,  for  the  bringing 
an  action  is  one  way  of  demanding  \rdy- 
mcnt ;  but  selling  without  notice  is  not  a 
demand  of  jiayinent ;  and  it  is  well  settled 
that  where  no  time  is  expressly  fixed  by 
contract  between  the  parties,  for  the  pay- 
ment of  a  debt  secured  by  a  i)lc<lge,  the 
jtawnee  cannot  sell  the  pledge  without  a 
previous  demand  of  payment,  althougii 
the  debt  is  technically  due  immediately." 
As  to  a  tender  by  the  plaintiff  to  the  de- 
fendant of  the  debt  due  to  the  latter  before 
l)ringing  the  action,  the  Court  of  Appeals 
held  that  the  defendant  having  voluntarily 
])Ut  it  out  of  his  power  to  restore  the  pledge, 
.1  tender  of  the  money  borrowed  wouhl 
have  been  fruitless,  and  was,  therefore, 
uimcicssary.  As  to  the  measure  of  dam- 
ages, the  court  adhered  to  the  rule  adopted 
liy  the  court  below,  but  based  their  judg- 
ment in  this  particular  upon  the  special 
circumstances   of  the   case.     liuyijlcn,  J., 

VOL.  I.  53 


said  :  "  The  ground  on  which  the  defend- 
ant insists  that  the  damages  must  be  esti- 
mated according  to  the  jirice  of  the  stock 
on  the  24th  of  December,  is  that  the  plain- 
tiff on  learning  that  the  defendant  had  sold 
it,  Tuight  then  have  gone  into  the  market, 
and  imrchascd  at  the  current  price  on  that 
day.  Uut  it  is  evident  that  he  was  pro- 
vented  from  doing  so  by  the  repeated  i)ro- 
mises  of  the  defendant  to  restore  the  stoek. 
Although  the  i)laintiff  was  strictly  entitled 
to  a  re-transfer  of  the  same  shares  that 
were  pledged,  it  appears  that  his  broker 
was  willing  to  receive  other  stock  of  the 
same  description  and  value,  which  ihe  de- 
fendant promised  from  day  to  day  to  give, 
the  plaintiff  being  all  the  time  reaily  to 
pa}'  the  money  borrowed.  Time  having 
thus  been  given  to  the  defendant,  at  his 
request,  for  the  fulfilment  of  his  obligation, 
and  the  plaintiff  having  waited  fur  the 
delivery  of  the  stock  for  the  accommoda- 
tion of  the  defendant,  and  having  relied  on 
the  expectation  thus  held  out,  and  lost  the 
op])ortunity  of  ]nn*ihasing  at  a  reduced 
juice,  it  is  manifestly  just  that  the  plaintiff' 
should  recover  according  to  the  vidue  of 
the  thing  ])ledged,  when  the  defendant 
finally  failed  in  his  j)romi.ses  to  restore  it." 
]}nt  although  such  a  transfer  operates  .is 
a  pledge  and  not  as  a  mortgage,  it  was 
nevertheless  held  that  the  legal  title  passe* 
to  the  pledgee  so  as  to  entitle  the  pledgor 
to  bring  his  bill  to  redeem  and  to  have  an 
account  of  the  jirofits  of  the  stock.  Has- 
brouck  V.  Vandervoort,  4  iSandf.  74. 

(d)  Allen  i-.  Dvkcrs,  3  Hill,  593,  7  id. 
497. 

[G25] 


600' 


THE   LAW    OF   CONTRACTS. 


[book  III. 


broker,  in  any  ev^ent,  sell  the  stock  secretly,  but  only  at  the 
board  of  brokers,  and  openly,  stating  how  it  was  held,  (e) 

*The  pledgee  may  have  his  action  of  trover  for  the  pledge 
against  a  third  party  who  takes  it  from  him,  and  recover  its  full 
value,  because  he  is  responsible  over  to  the  pledgor,  (ee)  but  in 
an  action  against  one  who  derives  title  from  the  pledgor,  he  can 
recover  only  the  amount  of  his  debt.  (/)  And  the  pledgor  re- 
tains sufficient  property  in  the  pledge  to  transfer  it,  subject  to 
the  pledgee's  right,  to  any  buyer,  who,  after  a  tender  of  the  amount 
of  the  debt  due,  may  maintain  an  action  of  trover  against 
the  pledgee,  (ff)  Nor  does  such  pledgee  acquire  an  absolute 
title  simply  by  the  failure  of  the  pledgor  to  pay  the  debt ;  there 
is  no  forfeiture  until  the  pledgee's  rights  are  determined  by  what 
is  equivalent  to  a  foreclosure,  (g*) 

The  holder  of  negotiable  paper,  even  though  it  be  accommo- 
dation paper,  is  not  in  contemplation  of  law  a  pledgee.     He 


(e)  Upon  this  point,  Walumrth,  C,  re- 
marked :  "  The  authority  to  sell  the  stock 
in  question  at  the  board  of  brokers,  for  the 
payment  of  the  debt,  if  such  debt  was  not 
paid  when  it  became  due,  did  not  author- 
ize the  pledgees,  even  if  they  had  retained 
the  stock  in  their  own  hands,  to  put  the 
same  up  secretly.  But  they  should  have 
put  up  the  stock  openly,  and  offered  it  for 
sale  to  the  highest  bidder,  at  the  board  of 
brokers  ;  stating  that  it  was  stock  which 
had  been  pledged  for  the  security  of  this 
debt,  and  with  authoritj'^  to  sell  it  at  the 
board  of  brokers  if  the  debt  was  not  ])aid. 
In  this  way  only  the  stock  would  be  likely 
to  bring  its  fair  market  value  at  the  time 
it  was  offered  for  sale.  And  in  this  way 
alone  could  it  be  known  that  it  was  hon- 
estly and  fairly  sold,  and  that  it  was  not 
purchased  in  for  the  benefit  of  the  pledgees 
by  some  secret  understanding  between 
them  and  the  purchasers.  It  is  a  well 
known  fact  that  shares  of  stock  are  con- 
stantly sold  at  the  board  of  brokers,  which 
shares  exist  only  in  the  imagination  of  the 
nominal  buyers  and  sellers.  Such  sales, 
as  everybody  knows,  are  not  legally  bind- 
ing upon  cither  party.  When  a  real  sale, 
therefore,  is  to  be  made  at  the  board  of 
brokers,  of  shares  of  stock  which  have  an 
actual  existence,  and  which  have  been 
pledged  for  the  payment  of  a  debt,  with 
authority  to  sell  them  at  that  board,  the 
stock  should  be  specifically  described  at 

[626] 


the  time  of  such  sale,  as  so  many  shares 
standing  in  the  name  of  the  pledgee,  and 
sold  on  account  of  the  pledgor  ;  so  that  if 
a  full  price  is  obtained  fur  it  on  such  sale, 
the  pledgor  of  the  stock  may  know  that 
he  is  entitled  to  the  benefit  of  the  sale. 
For  without  such  specification,  the  sale,  if 
an  advantageous  one,  may  be  put  down 
as  a  sale  of  stocks  of  the  pledgee,  and 
which  have  been  sold  on  his  own  account. 
Secret  sales,  therefore,  cannot  l)e  sustained 
under  such  an  agreement  or  authority." 
It  should  be  observed,  however,  tiiat  Mr. 
Justice  Vandcrpoel,  in  the  case  of  Wilson 
V.  Little,  already  cited,  was  inclined  to 
doubt  the  soundness  of  these  views  of  the 
learned  Chancellor.  He  says  :  "  In 
Dykers  r.  Allen,  7  Hill,  4!)8,"  iru/worf/i, 
Chancellor,  intimates  or  directs  how  stock, 
which  is  pledged,  should  be  sold  at  the 
board  of  brokers.  The  soundness  of  his 
views  as  to  the  mode  of  selling  docs  not, 
perhaps,  come  in  question  hei-c.  Were  it 
presented  by  this  case,  I  should  incline 
very  strongly  to  the  opinion,  that  this 
part  of  the  learned  Chancellor's  judgment 
was  uncalled  for  by  the  case,  and  has  not, 
therefore,  the  weight  of  authority." 

(tc)  Harker  v.  Dement,  9  Gill.  7. 

(  f)  Brownell  v.  Hawkins,  4  Barb.  491. 

iff)  Franklin  v.  Neate,  13  M.  &  W. 
481. 

[g)  Brownell  v.  Hawkins,  4  Barb.  491. 


en.  XII.] 


BAILMENT. 


*601 


may,  therefore,  sell,  discount,  or  pledge  it,  at  his  pleasure,  (h) 
For  when  one  has  sent  negotiable  paper  into  the  world,  and 
given  it  credit  and  currency,  he  cannot  protect  himself  against 
a  bund  fide  holder  for  a  valuable  consideration,  on  the  ground 
that  he  did  not  authorize  it  to  be  used  except  for  t?ome  particu- 
lar purpose.  It  has  been  held,  however,  that  this  rule  with 
regard  to  negotiable  paper,  does  not  extend  to  a  bill  of 
lading,  (i) 

And  so  an  ordinary  loan  of  stocks  does  not  amount  to  a  bail- 
ment, but  to  a  sale,  to  be  paid  for  in  similar  kind  and  quantity, 
as  otherwise  the  purposes  of  a  loan  could  not  be  effected,  (j) 

Although  transfer  of  possession  must  accompany  a  pledge,  a 
re-transfer  to  the  owner  for  a  temporary  purpose,  as  agent  or 
special  bailee  for  the  pledgee,  does  not  impair  the  title  or  pos- 
session of  the  pledgee,  (k) 

*At  common  law,  pledges  could  not  be  taken  in  an  execution 
in  favor  of  a  third  party  against  the  pledgor.  (/)     The  common 


(A)  Applcton  V.  Donaldson,  3  Barr, 
381  ;  Jarvis  r.  Rogers,  13  Mass.  105. 

(/)  Newsom  ?-.  Thornton,  G  East,  17. 

Ij)  Per  W'alicorth,  C,  in  Dykcrs  v. 
Allen,  7  Hill,  497. 

(L-)  Ilavs  r.  Riddle,  1  Sandf.  248; 
Reeves  r."Cai)per,  5  Ring.  N.  C.  136.  In 
this  last  ease  one  Wilson,  the  eaptaiii  of  a 
ship,  pledged  his  chronometer,  tlien  in  the 
possession  of  the  makers,  to  defendants, 
the  owners  of  tlie  ship,  in  consideration  of 
their  advancing  him  .£.")(),  and  allowing 
him  the  use  of  the  instrument  during  a 
voyage  on  which  he  was  aimut  to  depart. 
After  the  voyage  was  ended  lie  placed  it 
at  the  maker's  again,  and  then  pledged  it 
to  the  plaintiff,  for  whom  the  makers, 
being  ignorant  of  the  pledge  to  the  de- 
fendants, agreed  to  hold  it.  The  money 
advanced  liy  the  defendants  not  having 
been  repaid,  it  was  luld  that  the  jjropcrty 
in  the  iii»!trument  was  in  the  defendants. 
Tlie  eciunsel  for  the  plaintiff  contended 
that  the  ])Ossession  of  the  chronometer 
having  been  j)arted  with  l)y  the  defend- 
ants, their  property  in  it  was  entirely  lost, 
npon  the  ground,  that  where  the  f)arty  to 
whom  a  personal  chattel  is  i)ledged  ]iarts 
with  the  possession  of  it,  he  loses  all  right 
to  his  jdedge.  Rut,  per  Tiiuhil,  V.  J.  : 
"  As  to  the  second  jioint,  we  agree  entire- 
ly with  the  doctrine  laid  down  in  Ryall  v. 
RoUe,  1  Atk.  1G5,  that  in  the  case  of  <a 


simple  pawn  of  a  personal  chattel,  if  the 
creditor  parts  with  the  ])osscssion,  he  loses 
his  property  in  the  pledge  ;  but  we  think 
the  delivery  of  the  chronometer  to  Wilson 
under  the  terms  of  the  agreement  itself 
was  not  a  parting  with  the  possession,  but 
that  the  possession  of  Captain  AVilson  was 
still  the  ])ossession  of  Messrs.  Capper. 
The  terms  of  the  agreement  were,  that 
'  they  would  allow  him  the  use  of  it  for 
the  voyage  ; '  words  that  gave  him  no  in- 
terest in  the  chronometer,  but  only  a  li- 
cense or  permission  to  use  it,  for  a  limited 
time,  whilst  he  continued  .as  their  servant, 
and  employed  it  for  the  ])urpose  of  navi- 
gating their  ship.  During  the  continu- 
ance of  the  voyage,  and  when  the  voyage 
terminated,  the  possession  of  Captain 
Wilson  was  the  jjossession  of  Messrs. 
Capper;  just  as  the  possession  of  plate  by 
a  i)ntler  is  the  possession  of  the  master; 
and  the  delivery  over  to  the  j)laintiff  was, 
a.s  between  Captain  Wilson  and  the  de- 
fendants, .a  wrongful  act,  just  as  the  de- 
livery over  of  the  plate  by  the  butler  to  a 
stranger  would  have  been  ;  and  could 
give  no  mon*  riglit  to  the  bailee  than  Cap- 
tain Wilson  had  himself"  Sec  also  Rob- 
erts r.  Wyatt,  2  Taunt.  2G8  ;  Spalding  i'. 
Adams,  32  Maine,  211  ;  Florv  r.  Denny, 
II  K.  L.  &  E.  584. 

(/)  Rro.  Abr.  tit.  Rledges,   28  ;  Rex  v. 
Hanger,  3  Rulst.  1,  17  ;  IJadlami;.  Tuck- 

[G27] 


602* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


law,  however,  has  been  changed  to  some  extent  in  this  particu- 
lar, in  some  of  om'  States,  by  statutes.  (//) 

The  pledgee  cannot  retain  a  pledge  for  the  purpose  of  secur- 
ing other  debts  than  those  for  which  it  was  given,  unless  that 
was  the  intention  of  the  parties,  (m) 

The  pledgee,  after  the  pledgor  fails  to  pay  the  debt  as  due, 
may  sell  the  pledge.  If  there  be  no  definite  time  for  the  pay- 
ment of  the  debt,  the  pledgee  may  require  an  immediate  pay- 
ment, but  must,  as  we  have  seen,  demand  payment  before  sell- 
ing the  pledge.  In  all  cases  of  sale,  the  pledgee  must,  before 
the  sale,  give  a  reasonable  notice  to  the  pledgor,  (n)  And  it  is 
safer  and  better  to  have  a  judicial  sale,  by  a  decree  in  chancery, 
whenever  the  State  courts  have  power  to  make  such  decree. 
Such  judicial  process  was  once  necessary  to  make  the  sale 
valid ;  but  is  not  so  now.  (o)  The  pledgee  should  not  buy  the 
pledge  himself;  (p)  nor  sell  more  than  enough  to  pay  his  debt, 
if  the  pledge  consist  of  separable  parts  ;  and  if  the  proceeds  do 
not  pay  his  debt,  he  may  sue  for  the  surplus. 

This  bailment  is  terminated  either  by  payment  and  *satisfac- 
tion  of  the  debt  by  acts  of  the  party  or  operation  of  law,  or  by 
its  merger  and  discharge  by  the  taking  of  such  higher  security 
as  operates  as  a  release  of  the  simple  debt  for  which  the  pledge 
was  ijiven. 


er,  1  Pick.  389,  399.  lu  this  last  case,  a 
qucere  is  made  whether  the  creditor  might 
not  remove  the  incumbrance,  and  tlien  at- 
tach tlie  property.  See  also  Pomeroy  v. 
Smith,  17  Pick.  85  ;  Srodes  v.  Caven,  3 
Watts,  258. 

(//)  See  Averill  v.  Irish,  1  Gray,  254. 

(m)  Jarvis  v.  Rogers,  15  Mass.  389; 
Rushforth  v.  Hadiield,  7  East,  224; 
Walker  v.  Birch,  C  T.  R.  258. 

(n)  Tucker  w.  Wilson,  1  P.  Wms.  261, 
1  Bro.  P.  C.  494,  5  Brown's  Cases  in 
Pari.  193;  Lockwood  v.  Ewer,  9  Mod. 
275,  2  Atk.  303 ;  Hart  v.  Ten  Eyck,  2 
Johns.  C.  R.  100;  Stearns  v.  Marsh,  4 
Denio,  227  ;  CastcUo  v.  Bank  of  Albany, 

[628] 


1  N.  Y.  Legal  Observer,  25  ;  De  Lisle  v. 
Priestman,  1  P.  A.  Browne,  176;  Luckctt 
t'.  Townsend,  3  Texas,  119.  In  this  last 
case  it  was  decided  that  a  stipulation  in  a 
contract  of  pledging,  that  if  the  pledge  be 
not  redeemed  within  a  specified  time,  the 
right  of  property  siiall  lie  absolute  in  the 
pawnee,  can  have  no  effect,  and  is  abso- 
lutely inoperative. 

(o)  Ibid.  But  in  a  late  case  in  England 
the  right  of  a  pledgee  to  sell  upon  non- 
payment is  denied.  Micklewaitc  v.  Win- 
ter, 19  Law  Times  Reps.  61.  This  case 
seems  opposed  by  the  general  tendency  of 
the  American  cases. 

{p)  1  Story's  Eq.  Jur.  §  308-323. 


CH.  XII.] 


BAILMENT. 


»603 


SECTION    V, 


LOCATIO. 


Locatio,  in  general,  means  a  hiring ;  and  as  there  are  many 
ways  of  hiring,  the  general  topic  includes  these  particular 
forms,  and  usually  the  classification  and  the  terms  of  the  civil 
law  are  used. 

1.  Locatio  rei  ; — where  a  thing  is  hired  and  the  hirer  ac- 
quires the  temporary  use  of  the  thing  bailed. 

2.  Locatio  operis  faciendi  ;  —  where  the  bailee  is  hired  to 
do  some  work  or  bestow  some  care  on  the  things  bailed. 

3.  Locatio  operis  mercium  VEiiENDARitM ;  —  where  the  bailee 
is  hired  to  carry  the  goods  for  the  bailor  from  one  place  to  an- 
other. 

W(3  shall  consider  these  subjects  in  this  order;  and  begin 
with  the 

Locatio  rei.  When  the  owner  of  a  thing  lets  it  to  another, 
who  is  to  have  the  use  of  the  thing,  and  to  pay  a  compensa- 
tion therefor,  the  contract  between  these  parties  is  for  their 
mutual  benefit.  The  bailee  is  therefore  bound  only  to  take 
ordinary  care  of  the  thing  bailed.  (7)    But  this  'obligation  varies 


{'/)  Reeves  r.  The  Rliip  Constitution, 
Gilpin,  579 ;  Bniv  v.  Mavne,  Gow.  1  ; 
Millon  r.  S:ilisl>nry,  1.3  .Johns.  211  :  Ilar- 
rinirtun  v.  Snyder)  .3  Barh.  .SSO ;  Hawk- 
ins r.  riiytliian,  8  B.  Mon.  515.  In  tlie 
case  of  Coluniliiis  r.  Howard,  G  Geo.  21*J, 
219,  Mr.  Justice  Lumlin  said:  "The 
•juestion  has  been  niueii  mooted,  what 
defrree  of  care  or  diliirence  is  required  of 
the  hirer,  wiiile  usinj:  the  property  for  the 
purpose,  and  within  the  time  for  which  it 
was  iiired.  Sir  William  .Jones  considered 
that  the  contiact  hein;;  one  of  mutual 
Iicnctit,  the  hirer  was  hound  only  for  ordi- 
nary diliLcencc,  and  of  course  was  respon- 
sihk'  only  for  such.  And  this  opinion 
aj)pcars  to  he  now  settled,  upon  i)rinei|)le, 
to  he  the  true  exposition  of  the  common 
law.  He  oui,dit,  therefore,  to  use  the 
tiling,  and  to  take  the  same  care  in  the 

53* 


preservation  of  it  wln'ch  a  pjood  and  pru- 
dent father  of  a  family  would  take  of  his 
own.  Hence  the  hirer  of  a  tinner,  heing 
responsihle  only  for  that  decree  of  dili- 
penee  which  all  prudent  men  use,  that  is, 
which  the  {reiierality  of  mankind  use,  in 
keeping  their  own  goods  of  the  same  kind, 
it  is  very  dear  he  can  he  liahle  only  for 
such  injuries  as  arc  shown  to  come  from 
an  omission  of  that  diligence  ;  or  in 
other  words,  for  ordinary  negligence.  If 
a  man  hires  a  horse,  he  is  hound  to  ride  it 
modenucly,  and  to  treat  it  as  carefully  jis 
any  man  of  common  iliscretion  would  his 
own.  and  to  supply  it  with  suitable  food  ; 
and  if  he  does  so,  and  the  horse,  in  such 
irasonal)le  use,  is  himeil  or  injured,  he  is 
not  responsihle  for  any  damages." — In 
Dean  i-.  Kcate,  .3  Camp.  4,  it  is  luUl  that 
if,  upon  a  hired  horse  heing  taken  ill,  the 

[629] 


I 


603- 


THE   LAW   OF   CONTRACTS. 


[book  III. 


with  the  nature  of  the  thing  and  the  circumstances.  One  who 
hires  a  valuable  watch,  easily  disordered  by  any  negligence, 
must  be  more  careful  than  if  the  watch  were  coarser  and 
stronger.  So  of  a  valuable  horse.  So  it  should  be  if  any 
known  circumstances  gave  the  thing  hired  a  peculiar  value, 
calling  for  peculiar  care.  For  the  rule  must  be,  that  the  hirer  is 
bound  to  render  such  care,  in  each  tase,  as  the  owner  has  a 
right  to  expect  that  a  man  of  ordinary  capacity  and  caution 
would  take  of  the  same  thing,  if  it  were  his  own,  and  under  the 
same  circumstances,  (r) 


hirer  calls  in  a  farrier,  he  is  not  answer- 
able for  any  mistakes  which  the  latter  may 
coTnmit  in  the  treatment  of  the  horse,  but 
if  insteafl  of  that  he  prescribes  for  the 
horse  himself,  and  from  unskilfulness 
gives  him  a  medicine  which  causes  his 
death,  altliough  acting  bond  Jide,  he  is 
liable  to  the  owner  of  the  horse  as  for 
gross  negligence.  — A  somewhat  peculiar 
question  of  liability  arose  in  the  case  of 
Davey  v.  Chamberlain  et  al.  4  Esp.  229. 
It  was  an  action  on  tlie  case  for  negli- 
gently driving  a  chaise,  whereby  the  plain- 
tiff's horse  was  killed.  The  two  defend- 
ants ■were  proved  to  have  been  together  in 
the  chaise  when  the  accident  happened  ; 
but  Chamberlain,  one  of  the  defendants, 
was  sitting  in  the  chaise  smoking,  and  it 
was  driven  by  the  other.  Erskine,  for  the 
defendants,  put  it  to  Lord  EUenborough 
"whether  he  was  not  entitled  to  have  a  ver- 
dict taken  for  Chamberlain  ;  the  ground 
of  his  aii))lieation  being,  that  no  verdict 
ought  to  pass  against  hina,  the  injury  hav- 
ing proceeded  from  the  ignorance  or  un- 
skilfulness of  the  other  defendant,  who 
was  tlie  person  driving  the  chaise,  and  in 
whosi'  care  and  under  whose  management 
.it  then  was.  Chamberlain  remaining  per- 
fectly jjassive,  and  taking  no  part  in  the 
management  or  direction  of  the  horse. 
But  bis  lordship  said  that  "if  a  person, 
driving  his  own  carriage,  took  another 
person  into  it  as  a  passenger,  such  person 
could  not  bo  subjected  to  an  action,  in 
case  of  any  misconduct  in  the  driving  by 
the  proprietor  of  the  carriage,  as  he  had 
no  care  nor  concern  with  the  carriage  ;  but 
if  two  persons  were  jointly  concerned  in 
the  carriage,  as  if  both  had  hired  it  to- 
gether, he  thought  the  care  of  the  king's 
subjects  required  that  both  should  be  an- 
sweraMe  for  any  accident  arising  from  the 
misconduct  of  cither  in  the  driving  of  the 

[630] 


cannage,  while  it  was  so  in  their  joint 
care."  The  fact  turned  out  to  be,  that  the 
chaise  in  question  had  been  hired  by  both 
the  defendants,  and  a  verdict  passed 
against  liotii  accordingly. 

()•)  What  we  have  stated  above  in  the 
text  is  of  great  importance  in  hs  applica- 
tion to  lured  slai-CK.  Inasmuch  as  a  slave 
is  an  intelligent  being,  and  may  be  sup- 
posed capable,  under  ordinary  circum- 
stances, of  taking  care  of  himself,  his  em- 
ployer is  not  bound  to  so  strict  diligence 
as  the  hirer  of  an  ordinary  cKattel.  This 
is  clearly  shown  !)y  the  case  of  Swigert  i: 
Graham,  7  B.  Monr.  G61.  It  was  an  ac- 
tion on  the  case,  brought  by  the  plaintiff 
against  the  owners  of  a  certain  steamboat, 
to  recover  for  the  loss  of  one  Edmund,  the 
plaintiff's  slave,  who,  while  employed  as 
a  hired  hand  u])on  tlie  defendants'  boat, 
was  drowned  in  the  Kentucky  River. 
Jlcirshall,  C.  J.,  in  delivering  the  opinion 
of  the  court,  said  :  "  The  material  ques- 
tion in  the  case  is,  whether,  under  the 
actual  circumstances,  the  owners  of  the  boat 
are  liable  for  the  loss  of  the  slave  by  being- 
drowned  while  in  tlieir  employ.  And  this 
question  depends  not  merely  upon  the 
general  princi]des  apjilicablc  to  the  case  of 
bailment  on  hire,  as  they  are  stated  or  ad- 
judged in  relation  to  inanimate  or  to  mere 
animal  property,  l)ut  upon  the  ];roi)er  ap- 
plication or  modilication  of  those  prin- 
ciples in  reference  to  the  ])articular  case  of 
a  slave  hired  for  service  as  a  common 
hand  on  board  of  a  steamboat  engaged  in 
the  navigation  of  tlie  Kentucky  and  Ohio 
Rivers.  The  rule  that  the  bailee  on  hire  is 
bound  to  ordinary  diligence,  and  respon- 
sible for  ordinary  neglect,  is  doubtless 
true  in  all  cases  of  their  bailment,  unless 
there  be  fraud,  or  a  sjiecial  contract  by 
which  it  may  be  varied  in  the  particular 
case.     But  wliat  is  or  is  not  ordinary  dili- 


CH.  XII.] 


BAILMENT. 


604 


The  hirer  is   equally  responsible   for  the   negligence   of  his 
servants  as  for  his  own ;  provided  that  this  negligence  occurred 


gencc  may  vary,  not  onh'  witli  the  circum- 
stances under  wliicli  the  subject  of  it  may 
he  piaceil,  hut  with  the  nature  of  tlie  sub- 
ject itself.  Tliat  which,  in  resj)ect  to  one 
species  of  property,  mij^ht  i)e  <^ross  neg- 
lect, miylit  in  respect  to  another  species 
he  extraordinary  care.  And,  under  pecul- 
iar circuuistances  of  danger,  extraordi- 
nary exertions  may  lie  re(iuired  of  one  who 
is  l)Ound  only  to  ordinary  diligence,  or,  in 
other  words,  the  circumstances  may  he 
such,  tliat  extraordinary  exertions  arc 
nothing  more  than  ordinary  diligence. 
Ordinary  diligCTice,  then,  means  that  de- 
gree of  care,  or  attention,  or  exertion, 
which,  under  the  actual  circumstances,  a 
man  of  ordinary  prudence  and  discretion 
would  use  in  reference  to  the  particular 
thing  were  it  his  own  i)roperty,  or  in  do- 
ing the  particular  thing,  were  it  his  own 
concern.  And  where  skill  is  required  for 
the  undertaking,  ordinary  diligence  im- 
plies the  possession  and  use  of  competent 

skill Applying  these  principles  to 

,  the  case  of  a  slave  hired  either  for  general 
or  special  service,  we  come  at  once  to  the 
conclusion,  that  being  ordinarily  caiiable, 
not  only  of  voluntary  motion,  by  which  he 
performs  various  services,  but  also  of  ob- 
servation, experience,  knowledge,  and  skill, 
and  being  in  a  plain  case  at  least  as  capa- 
ble of  taking  care  of  his  own  safety  as  the 
hirer  or  owner  himself,  and  i)resumably  as 
miK-li  disposed  to  do  it,  from  his  posses- 
sion of  these  qualities,  with  habits  and  dis- 
position of  obedience  implied  in  his  con- 
dition, and  on  which  the  hirer  has  a  right 
to  rely,  he  may  be  expected  to  undcrtand 
and  ])erform  many,  and  indeed  most,  of 
his  duties,  by  order  or  direction  more  or 
less  general,  without  constant  supervision 
or  physical  control,  and  may  be  relied  on, 
miless  uhder  extraordinary  circumstances, 
for  taking  care  of  his  own  safety  without 
particular  instructions  on  that  subject,  aiul 
a  Jhiiiori,  without  being  watched  or  fol- 
lowed or  led,  to  keej)  him  from  running 
unnecessarily  into  danger.  What  sort  of 
care  or  diligence,  then,  is  the  hirer  to  u<e 
for  the  safety  or  preservation  of  the  hired 
slave  /  ( )mitting  to  notice  what  may  lie 
necessary  to  his  health  and  comfort,  we 
should  say  that  he  ought  not,  by  his 
orders,  to  expose  him  to  extraordinary 
hazard,  without  necessity,  though  they  be 


incident  to  the  nature  of  the  service  ;  and 
that  when  he  does  expose  him  to  such 
hazards,  necessarily  or  properly,  he  sliould 
use  such  precautions,  by  instructions  or 
otherwise,  as  the  circumstances  seem  tore- 
quire,  and  as  a  man  of  ordinary  prudence 
would  use  in  so  exposing  his  owm  slave. 
It  might  be  necessarj'  in  sending  him  to 
the  bottom  of  a  deep  well,  or  to  the  cave 
of  a  steep  roof,  to  tie  a  rope  around  his 
waist.  I5ut  if  he  were  possessed  of  ordi- 
nary intelligence,  it  could  not  l)e  required 
that,  in  sending  him  across  a  wide  bridge, 
he  siiould  even  he  cautioned  not  to  jump 
or  fall  from  it.  Nor  if  there  wei'e  a  ford 
as  well  as  a  bridge  crossing  the  river,  both 
ordinarily  safe,  and  with  each  of  which 
the  slave  was  well  acquainted,  would  it  be 
deemed  necessary  to  direct  him  to  take  the 
one  and  avoid  the  other,  unless  there  were 
some  circumstances  known  or  apprehended 
at  the  time,  changing  the  usual  condition 
of  one  or  the  other?  Certainly  it  would 
not  be  necessary,  when  there  was  on  the 
roatl  which  he  was  accustomed  to  travel  a 
ford  to  be  crossed,  with  which  he  was  well  , 
ac(piainted,  to  tell  him  either  not  to  go  out 
of  the  u>ual  track  into  the  deep  water,  or 
not  to  take  another  road  which  he  was  not 
accustomed  to  travel,  and  which  i)assed 
the  river  at  a  more  dangerous  ])lace.  In 
the  Tiavigation  of  our  rivers  by  steamt)oats, 
it  might  become  necessary,  in  a  particular 
case,  that  some  one  on  board  should  swim 
to  the  shore  with  a  line,  though  the  at- 
tempt might  be  attended  with  great  dan- 
ger. This,  though  incident  to  the  naviga- 
tion, would  be  an  extraordinary  hazard, 
and  doubtless  it  should  not  be  onlcrcd, 
nor  even  permitted  to  be  incurred  without 
the  use  of  such  ])recautions  within  the 
power  of  the  captain  or  other  olficer,  as 
experience  might  iiulicate  for  the  occasion. 
IJut  when  the  boat  is  aground,  on  a  bar  or 
shoal,  where  the  water  on  each  side,  and 
to  the  shore  on  each  side,  is  not  more  than 
three  feet  deep,  it  could  not  be  deemed 
necessary,  in  ordering  u  ])articular  indi- 
vidual to  go  to  the  shore  through  the 
water,  to  do  more,  even  if  he  were  unac- 
quaintetl  with  the  bar,  and  could  not  sec 
it  plainly,  tiian  to  point  out  its  extent,  or 
the  direction  which  he  must  take  to  the 
shore,  or  to  advise  caution  in  his  proceeil- 
ing,   or  to  give  such   instruetiou  !is    was 

[cai] 


605-606* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


when  the  servant  was  in  the  discharge  of  his  duty,  or  obey- 
ing the  commands  or  instructions  of  his  master,  express  or  im- 
plied. When  not  so  employed,  the  person,  though  generally  a 
servant,  does  not  then  stand  in  the  relation  or  act  in  the  capac- 
ity of  a  servant,  so  as  to  fasten  a  liability  for  his  conduct  on  his 
master ;  and  a  master,  therefore,  would  not  be  responsible  for 
an  injury  committed  by  a  servant  from  his  own  wilful  malice, 
in  which  the  master  had  no  share,  (s)  If  the  loss  occur  through 
theft  or  robbery,  or  the  injury  result  from  violence,  the  hirer  is 
only  answerable  when  his  *imprudence  or  negligence  caused 
or  facilitated   the   injurious   act.     If  a  bailee  for  hire  sells  the 


necessary.  But  if  he  were  well  acquainted 
with  the  bar,  or  it  were  plainly  visible 
through  the  water,  aud  were,  moreover, 
wide  aud  safe,  the  direction  to  go  to  the 
shore  would  of  itself  be  snfhcient.  It 
might  lie  ordinarily  assumed  that  the  indi- 
vidual, whether  white  or  black,  slave  or 
freeman  if  he  had  common  sense,  would 
not  go  from  the  bar  into  the  deep  water, 
and  tlie  person  giving  the  order  would  not 
be  bound  to  anticipate  such  a  deviation, 
and  cither  to  forbid  it,  or  in  any  manner 
to  guard  against  it,  but  might  pursue  his 
own  employment.  Nor  do  we  suppose 
that,  if  he  knew  the  individual  to  be  a 
swimmer,  and  saw  that  he  was  purposely 
deviating  from  the  bar,  witii  the  view  of 
swimming  a  few  yards  to  the  shore,  he 
would  be  bound  to  order  him  back,  or  to  • 
caution  him  against  it,  unless  from  the 
temperature  of  the  water,  or  some  other 
fact,  he  had  reason  to  appi-ehend  danger. 
The  direction  to  go  to  the  shore  on  such 
an  occasion  implies,  without  more  said, 
that  he  should  go  by  the  known  and  safe 
way.  It  is  only  when,  from  the  uncer- 
tainty or  difficulty  of  the  way,  or  from 
some  other  circumstance,  there  may  be 
danger  in  executing  the  order  given,  that 
it  is  necessary,  in  the  exercise  of  ordinary 
care  or  diligence,  to  accompany  it  with 
.an}'  other  words  or  acts  than  such  as  are 
essential  to  make  it  intelligible  and  prac- 
ticable." This  point  is  well  illustrated 
also  by  the  case  of  Heathcock  ?•.  Penning- 
ton, 11  Ired.  640.  The  defendant  had 
hired  of  the  plaintiff  a  slave  boy,  about 
twelve  years  of  age,  to  drive  a  whim  near 
the  shah  of  a  gold-mine.  The  boy,  while 
working  there  at  night,  being  without  an 
overcoat,  had  gone  to  the  fire   to  warm 

[632] 


hiiuself,  and  on  his  being  called'  to  start 
his  horse,  being  drowsy,  fell  into  the  mine 
and  was  killed.  It  was  held,  in  an  action 
liy  the  plaintiff  to  recover  tlie  value  of  the 
slave,  that  the  defendant  was  bound  to  use 
such  diligence  as  a  man  of  ordinary  pru- 
dence w^ould,  if  the  property  were  his  own ; 
that  as  a  slave  was  a  rational  being,  so 
much  care  was  not  necessary  as  would  be 
rc(|uired  of  the  bailee  of  a  brute  or  an  in- 
animate tiling;  that  as  the  plaintiff  had  let 
the  slave  for  this  very  purpose,  he  must  be 
presumed  to  know  all  the  dangers  and 
risks  incident  to  the  employment ;  and, 
therefore,  as  it  did  not  appear  that  the 
usual  risks  were  in  any  way  increased, 
that  he  could  not  recover.  But  where  a 
slave  was  hired  to  work  in  gold-mines,  in 
which  wooden  buckets  were  used  for  rais- 
ing up  water  and  ore,  in  which  were  valves 
for  letting  out  the  water,  and  an  iron  drill 
was  dro])])ed  into  a  bucket,  and  fell  through 
the  valve,  and  split  the  skull  of  the  slave, 
it  was  luM  to  be  a  want  of  ordinary  care. 
Biles  r.  Holmes,  11  Ired.  IC.  See  also, 
as  to  the  duties  ami  responsibilities  of  the 
hirers  of  slaves,  McCall  v.  Flowers,  11 
Humph.  242  ;  Mims  v.  Mitchell,  1  Tex. 
443;  Sims  v.  Chance,  7  Tex.  .5J51 ;  Mit- 
chell r.  Mims,  8  Tex.  6 ;  McLauchlin  v. 
Lomas,  3  Strob.  L.  85  ;  Alston  v.  Balls,  7 
Eng.  (Ark.)  664;  Jones  v.  Glass,  13  Ire. 
L.  305. 

(s)  Finucane  v.  Small,  1  Esp.  315; 
Foster  v.  Essex  Bank,  17  Mass.  479; 
Brind  v.  Dale,  8  C.  &  P.  207.  See  also 
Butt  y.  Great  Western  Railway  Co.  7  E. 
L.  &  E.  443.  But  see  Sinclair  c.  Pearson, 
7  New  Hamp.  219.  See  also  a>ite,  p.  87, 
n.  {aa). 


en.  XII.] 


BAILMENT. 


-606 


property  without  authority,  the  bailor  may  have  trover  against 
even  a  bond  fide  purchaser,  [t) 

When  the  thing  bailed  is  lost  or  injured,  the  hirer  is  bound 
to  account  for  such  loss  or  injury.  But  when  this  is  done,  the 
proof  of  negligence  or  want  of  due  care  is  thrown  upon  the 
bailor,  and  the  hirer  is  not  bound  to  prove  affirmatively  that  he 
used  reasonable  care,  (w) 


{t)  Loesdiman  v.  Macliin,  2  Starkic, 
311  ;   Cooper  v.  Willoniatt,  1  C.  B.  (572. 

(u)  Bcckinan  ii.  ISliouse,  5  Eawlc,  17'.» ; 
Clark  V.  Spcncc,  10  Watts,  335  ;  Bun  van 
V.  Cakhvt'll,  7  Ilunipli.  134;  Piatt  i\ 
Hibbaril,  7  Cow.  500,  n.  (</)  ;  Hciiiiiidt  r. 
Blood,  9  Wend.  268 ;  Tootc  v.  Stoirs,  2 
Barb.  32G ;  Harrin<i;ton  v.  Snyder,  3  id. 
380.  This  question  was  very  thoroughly 
discussed  in  the  case  of  Logan  v.  ]\Iathews, 
6  Barr,  417.  The  court  below  in  that 
case  instructed  the  jury  that,  "  when  the 
bailee  returns  the  property  in  a  damaged 
condition,  and  fails,  either  at  the  time  or 
subsequently,  to  give  any  account  of  the 
matter,  in  order  to  explain  how  it  occurred, 
the  law  will  authorize  a  ])rcsumptioii  of 
negligence  on  his  j)art.  But  when  he 
gives  an  account,  although  it  may  be  a 
general  one,  of  the  cause,  and  shows  the 
occasion  of  the  injury,  it  then  devolves  on 
the  plaintilf  to  i)rove  negligence,  unskil- 
fulncss,  or  misconduct."  And  this  in- 
struction was  held  to  be  correct.  Coulter, 
J.,  said:  "The  !)ooks  arc  extremely  meagre 
of  authority  on  this  subject  of  the  onus 
prolxnidi  in  cases  of  bailment.  But  reason 
and  analogy  would  seem  to  establish  ilie 
correctness  of  the  i)Osition  of  the  court  be- 
low. All  persons,  who  stand  in  tiiluciary 
rclatioit  to  others,  are  bound  to  the  ob- 
servance of  good  faith  and  candor.  The 
bailor  commits  his  proj)erty  to  the  bailee, 
for  reward,  in  the  case  of  hiring,  it  is  tiiie; 
but  ujjon  the  implied  undertaking  that  he 
will  observe  due  care  in  its  use.  The 
property  is  in  the  possession  and  under 
the  ovei-sight  of  the  bailee,  wliilst  the 
bailor  is  at  a  tlistancc.  Under  these  cir- 
cumstances, guod  faith  recjuires  that  if  the 
property  is  returned  in  a  damaged  condi- 
tion, some  account  should  be  given  of  the 
time,  jjhuc,  and  manner  of  the  occurrence 
of  the  injury,  so  that  the  bailor  may  i)e 
enabled  to  test  the  accuracy  of  the  bailee's 
report,  by  suitable  iii<|uirics  in  the  neigh- 
borhood and  locality  of  the  injury.  If  tlie 
bailee  returns  the  buggy,  (whii-h  was  the 
property  hired  in  this  case,)  and  merely 


says,  '  Here  is  your  property,  broken  to 
l)ieces,'  what  would  be  the  legal  and  just 
l)resumption  ?  If  stolen  proix-rty  is  found 
in  the  ))osscssion  of  an  individual,  and  he 
will  give  no  manner  of  account  as  to  the 
means  by  which  he  became  ])ossessed  of 
it,  the  presumption  is  that  he  stole  it  him- 
self. This  is  a  much  harsher  ]iresumption 
than  the  one  indicated  by  the  court  in  this 
case.  The  bearing  of  the  law  is  always 
against  him  who  remains  silent  when  jus- 
tice and  honesty  require  him  to  speak. 
It  has  been  ruled,  that  negligence  is  not 
to  be  inferred,  unless  the  state  of  facts  can- 
not otherwise  be  explained.  9  Eng.  Jur. 
907.  But  how  can  they  be  explained,  if 
he  in  whose  knowledge  they  rest  will  not 
disclose  them  ■?  And  does  not  the  refusal 
to  disclose  them  justify  the  inference  of 
negTigencc  ?  Judge  Story,  in  his  Treatise 
on  Bailments,  §  410,  says  that  it  would 
seem  that  the  burden  of  proof  of  negli- 
gence is  on  the  bailor,  and  that  proof 
merely  of  the  loss  is  not  sufficient  to  put 
the  bailee  on  his  defence.  The  position 
that  we  are  now  discussing,  however,  in- 
cludes an  ■  ingredient  not  mentioned  by- 
Judge  Story,  and  on  which  it  turns  ;  that 
is,  the  refusal  or  omission  of  the  bailee  to 
give  any  account  of  the  maimer  of  the 
loss,  so  as  to  enable  the  bailor  to  shape 
and  direct  his  inquiries  and  test  its  accu- 
racy. Judge  Story  says  there  arc  discrep- 
ancies in  the  authorities.  In  the  French 
law,  as  stated  by  him,  §  411,  the  rule  is 
dilTerent ;  and  the  hirer  is  bound  to  prove 
the  loss  was  without  negligence  on  Jiis 
part.  And  he  cites  the  Scottish  law  to 
the  effect  that  if  any  s]>ecific  injury  has 
occurred,  not  mmiifstlij  the  result  of  acci- 
dent, the  onus  proUindi  lies  on  the  hirer  to 
justify  himself  by  proving  the  accident. 
That  would  be  near  the  case  in  hand,  be- 
cause the  injury  here  was  not  manifestly 
the  result  of  accident,  and  the  hirer  did 
not  even  explain  or  state  how  tlieaciicji'iit 
occurred.  The  case  of  Ware  r.  Ciay,  11 
Pick.  106,  seems  to  liave  a  strong  analogy 
to    the   principle  asserted.     It  was  there 

[G33J 


607-608* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


The  owner  must  deliver  the  thing  hired  in  a  condition  to  be 
used  as  contemplated  by  the  parties  ;  (v)  nor  may  he  interfere 
with  the  hirer's  use  of  the  thing  while  the  hirer's  property  con- 
tinues, (la)  Even  if  the  hirer  abuses  the  thing  hired,  as  a  horse 
hired  for  a  journey,  although  the  owner  may  then,  as  it  is  said, 
repossess  himself  of  the  thing,  if  he  can  do  so  peaceably,  he  may 
not  do  so  forcibly,  but  must  resort  to  his  action,  (x)  And  if 
such  misuse  of  the  thing  hired  terminates  the  original  contract, 
the  owner  may  demand  the  thing,  and,  on  refusal,  bring  trover; 
or,  in  some  cases,  without  demand.  {//) 

The  owner  is  said  to  be  bound  to  keep  the  thing  in  good 
order,  that  is,  in  proper  condition  for  use ;  and,  if  expenses  are 
incurred  by  the  hirer  for  this  purpose,  the  owner  must  repay 
them.  On  this  subject,  however,  there  is  some  uncertainty  in 
the  cases.  The  cases  usually  referred  to  on  this  point  relate  to 
real  estate  ;  (z)  but  the  hirer  of  land,  or  of  a  real  chattel,  has 
neither  the  same  rights  nor  obligations  with  the  hirer  of  a  per- 
sonal chattel.  Perhaps  the  conflicting  opinions  may  be  recon- 
ciled, by  regarding  it  as  the  true  principle  *that  the  owner  is  not 
bound,  (unless  by  special  agreement,  express,  or  implied  by  the 
particular  circurnstances,)  to   make   such  repairs  as  are  made 


ruled  that  where  a  public  carriage  or  con- 
veyance is  overturned,  or  breaks  down, 
witliout  any  apparent  cause,  the  law  will 
i7nph/  negligence,  and  the  burden  of  proof 
will  be  on  the  owners  to  rebut  the  pre- 
sumption .  The  prima  facie  evidence  arises 
from  the  foct  that  there  is  no  apparent 
cause  for  the  accident.  And  in  the  case 
in  hand,  there  was  no  apparent  cause ; 
nor  would  the  hirer  give  any  account  of 
the  cause.  We  think,  therefore,  there  was 
no  error  in  adding  to  the  answer  the  qual- 
ification or  ex]danation  which  we  have 
been  considering."  See  also  Skinner  v. 
London,  Brighton,  and  Southcoast  Rail- 
way Co.  2  E.  L.  &  E.  360.  And  in  Bush 
V.  Miller,  1.3  Barb.  481,  where  property 
was  delivered  to  the  defendant,  who  re- 
ceived the  same,  and  engaged  to  forward 
it,  but  it  was  never  afterwards  seen  nor 
heard  of,  and  the  defendant  never  ac- 
counted for  it  in  any  way,  it  was  held  that 
he  was  prima  facie  liable  for  the  goods 
without  ])roof  of  negligence,  which  proof 
could  not  be  required  unless  he  gave  some 
account  of  his  disposition  of  the  property. 

[634] 


{v)  Sutton  V.  Temple,  12  M.  &  W.  52, 
60. 

(«')  Hickok  V.  Buck,  22  Verm.  149. 
In  tiiis  case  the  defendant  leased  to  the 
plaintiff  a  farm  for  one  year,  and,  by  the 
contract,  was  to  provide  a  horse  for  the 
plaintiff  to  use  upon  the  farm  during  the 
term.  At  the  commencement  of  the  tenii 
he  furnished  a  horse,  but  took  him  away 
and  sold  him  before  the  expiration  of  the 
term,  without  providing  another.  It  was 
held  that  the  plaintiff  acquired  a  special 
pro]ierty  in  the  horse,  by  the  bailment, 
and  was  entitled  to  recover,  in  an  action 
of  trover,  for  the  horse  so  taken  away, 
damages  for  the  loss  of  the  use  of  the  horse 
during  the  residue  of  the  term. 

(x)  Lee  i\  Atkinson,  Yelv.  172. 

(y)  See  the  case  of  Fouldcs  v.  Wil- 
lou'ghby,  8  M.  &  W.  540,  as  to  what  will 
amount  to  a  conversion. 

(s)  Pomfret  v.  Ricroft,  1  Saund.  321  ; 
Taylor  v.  Whitehead,  Douglas,  744; 
Chcctham   v.   Hampson,   4   T.   R.-318; 

Ferguson  v. ,  2  Esp.  590 ;  Hoi-sefall 

V.  Mather,  Holt,  N.  P.  7. 


CH.   XII.] 


BAILMENT. 


*609 


necessary  by  the  natural  wear  and  tear  of  the  thing,  or  by  such 
accidents  as  arc  to  be  expected,  as  the  casting  of  a  horse-shoe 
after  it  has  been  worn  a  usual  time ;  but  is  bound  to  provide 
that  the  thing  be  in  good  condition  to  last  during  the  time  for 
which  it  is  hired,  if  that  can  be  done  by  reasonable  care,  and 
afterwards  is  liable  only  for  such  repairs  as  are  made  necessary 
by  unexpected  causes,  (a) 

On  the  part  of  the  hirer  there  is  an  implied  obligation  to  use 
the  thing  only  for  the  purpose  and  in  the  manner  for  which  it 
was  hired  ;  and  in  no  way  to  abuse  it.  (b) 

The  hirer  must  surrender  the  property  at  the  time  appointed  ; 
and  if  no  time  be  specified  in  the  contract,  then  whenever  called 
upon  after  a  reasonable  time ;  and  what  this  is  *will  be  deter- 
mined in  each  case  by  its  nature  and  circumstances,  (c) 

By  the  contract  of  hire,  the  hirer  acquires  a  qualified  property 


(a)  There  is  very  little  direct  autliority 
in  our  books  upon  this  question.  In  Pom- 
fret  V.  Rieroft,  I  Sannd.  321,  Lord  Ilale 
says  :  "  If  I  lend  a  piece  of  plate,  and 
covenant  hy  deed  that  t!ie  party  to  whom 
it  is  lent  shall  liave  the  use  of  it,  yet  if  the 
plate  he  worn  out  hy  ordinary  use  and 
wearing:  without  my  fault,  no  action  of 
covenant  lies  apainst  me."  But  this  is 
only  a  dirtitin.  So  in  Taylor  i\  White- 
head, Doup.  744,  Lord  Mdiis/hld  says  in 
general  terms,  that  hy  the  common  law 
he  wiio  has  tlie  use  of  a  thiuiij  ou;rht  to  re- 
pair it.  But  he  ])rohalily  had  his  mind 
upon  real  property.  In  the  case  of  Ishell 
V.  Norvell,  4  Grat.  176,  it  is  lulil  that 
where  the  hirer  of  a  slave  pays  a  physician 
for  attendin^ron  the  slave  while  he  is  hired, 
he  is  entitled  to  have  the  amount  repaid 
him  hv  the  owner  of  the  slave.  But  in 
the  case  of  KeddiuK  v.  Hall,  1  Bihh,  .530, 
the  same  question  was  decided  the  otlier 
way,  after  a  careful  examination  of  the 
authorities.  It  is  impossible  to  say  with 
certainty  what  tlie  true  rule  of  law  is  until 
wc  have  further  adjudication.  But  it 
seems  to  be  certain  that  the  hirer  of  an 
animal  is  i)ound  to  bear  the  expense  of 
kcepiiifc  it,  unless  there  is  an  a};recinent  to 
the  contrarv.  See  Handford  i'.  Palmer,  2 
Brod.  &  Bing.  359. 

{!>)  Homer  u.  Thwin-,  3  Pi<k.  492; 
Rotch  '•.  Hawcs,  12  id.  130  :  Whcdock  i-. 
Whcclwri'rht,  5  Mass.  104:  DeTollcnere, 
»'.  Fuller,  1  So.  Car.  Const,  licii.  110  ; 
Duncan  v.  Rail  Road  Company,  2  Rich. 


613;  Columbus  t-.  Howard,  6  Geo.  213; 
Harrinfrton  v.  Snyder,  3  Barb.  380  ;  Booth 
V.  Terrell,  16  Geo.  20.  In  the  case  of 
Mullen  V.  Ensley,  8  Humph.  428,  the  de- 
fendant, having  hired  a  slave  of  the  plain- 
tiff, for  general  and  common  service,  set 
him  to  blasting  rocks,  and  the  slave  while 
so  engaged  was  severely  injured.  The 
court  held  the  defendant  liable.  And 
Turlcji,  .1.,  said  :  "  Wc  are  of  opinion  that 
the  employment  of  blasting  rotks  is  not 
an  ordinary  and  usual  one  ;  that  it  is  at- 
tended with  more  personal  danger  than  is 
common  to  the  usual  vocations  of  life ; 
and  that  a  bailee,  who  has  hired  a  negro 
for  general  antl  common  service,  has  no 
right  to  employ  him  in  such  an  occupation 
witliout  the  consent  of  his  owner."  But 
in  the  ca.sc  of  McLauchlin  r.  Lomas,  3 
Strobh.  85,  where  a  negro  was  let  to  hire 
as  a  house  caiTienter,  and  w.as  cmi)loyed 
by  the  hirer  in  his  shop,  where  he  carried 
on  the  business  of  a  house  carpenter,  and 
where  his  workmen  were  accustomed  to 
use  a  steam  circular  saw,  when  necessary 
for  their  work  at  the  business,  and  the 
Tiegro,  while  at  work  at  the  saw,  received 
wounds  of  which  he  died,  and  in  an  action 
by  the  owner  to  recover  the  value  of  the 
slave  from  the  hirer,  the  jury  gave  a  ver- 
dict for  the  defendant,  the  court  refused  to 
grant  a  new  trial.  Ric/iarJson,  J.,  dis- 
sented. 

(c)  See   Esmay  v.  Fanning,  9   Barb. 
17G. 

[635] 


610*  THE   LAW   OF   CONTRACTS.  [bOOK  IH. 

in  the  thing  hired,  which  he  may  maintain  against  all  persons 
except  the  owner,  and  against  him  so  far  as  the  terms  and  con- 
ditions of  the  contract,  express  or  implied,  may  warrant,  (d) 
During  the  time  for  which  the  hirer  is  entitled  to  the  use  of  the 
thing,  the  owner  is  bound  not  to  disturb  him  in  that  use  ;  and 
if  the  hirer  returns  it  to  the  owner  for  a  temporary  purpose,  he 
is  bound  to  return  it  to  the  hirer,  (e) 

It  is  held  that  if  a  hirer  fastens  hired  chattels  to  real  estate, 
in  such  a  way  that  they  cannot  be  removed  without  injury  to 
the  real  property,  a  purchaser  of  the  land,  without  notice,  holds 
the  chattels,  and  the  owner  of  them  must  look  to  the  hirer  for 
compensation.  (/) 

The  letter  for  hire  acquires  an  absolute  right  to,  and  property 
in,  the  compensation  due  for  the  thing  hired  ;  and  this  compen- 
sation or  price,  whei-e  not  fixed  by  the  parties,  must  be  a  reason- 
able price,  to  be  determined,  like  the  time  for  which  the  thing 
is  hired,  by  the  nature  and  circumstances  of  the  case. 

The  contract  of  hire  may  be  terminated  by  the  expiration  of 
the  time  for  which  the  thing  was  hired,  or  by  the  act  of  either 
party  within  a  reasonable  time,  if  no  time  be  fixed  by  the  con- 
tract. Or  by  the  agreement  of  both  parties  at  any  time.  Or 
by  operation  of  law,  wdien  the  hirer  becomes  the  owner  of  the 
thing  hired.  Or  by  the  destruction  of  the  thing  hired.  If  it 
perish  withoiit  the  fault  of  either  party,  before  any  use  of  it  by 
the  hirer,  he  has  nothing  to  pay;  if  after  some  use,  it  may  be 
doubted  how  far  the  aversion  of  the  law  to  apportionment  would 
prevent  the  owner  from  recovering  pro  tanto ;  probably,  how- 
ever, where  the  nature  of  the  case  admitted  of  a  distinct  and 
just  apportion nient,  it  would  be  applied,  {g-)  Either  party  being 
in  fault  would  of  course  be  *answerable  to  the  other.  And  the 
contract  might  provide  for  the  contingency  of  the  destruction  of 
the  property  in  any  manner. 

[d)  Sec  Ilickok  v.  Buck,  22  Verm.  149,     the  period  of  his  service,  sec  the  following 
cited  ante,  p.  GOT,  n.  (w).  cases.     George  v.  Elliott,  2  Hen.  &Mnnf. 

(e)  Roberts  v.  Wyatt,  2  Taunt.  268.  5  ;  Williams  r.  Holcombe,  1  N.  C.  Law 
(  /■)  Frvart  v.  The  Sullivan  Companj-,     Eep.  .305 ;  Bacot   v.   rarnell,    2    Bailey, 

5  Hill,  116,  7  id.  .529.  424;  Bedding  r.  Hall,  1  Bil)l),  5.3G  ;  Har- 

(tj)  See  Harrington  v.  Snyder,  3  Barb,  rison  v.  Murrcll,  5  Monr.  359  ;  Dudgeon 

380.     As   to   apportionment   in  cases  of  v.   Teass,    9    Missouri,    867  ;    Collins   i'. 

hired  slaves,  where  the  slave  dies  during  Woodruff,  4  Eng.  [Ark.]  463. 

[636] 


CH.  XII.]  BAILMENT.  *611 

LocATio  OPERis  FACIENDI.  The  cascs  in  which  the  bailee  is 
to  do  some  work  or  bestow  some  care  upon  or  about  the  thing 
bailed,  may  be  conveniently  divided  into  those  where, 

1.  Mechanics  are  employed  in  the  manufacture  or  repair  of 
the  article  bailed  to  them. 

2.  Warehousemen  or  wharfingers  are  charged  with  the  cus- 
tody of  the  thing  bailed. 

3.  Postmasters  receive  letters  to  be  sent  as  directed. 

4.  Innkeepers  receive  the  goods  of  guests. 

Where  mechanics  are  employed  to  make  up  materials  fur- 
nished, or  to  alter  or  repair  a  specific  thing,  the  contract  is  one 
of  mutual  benefit,  and  only  ordinary  care  is  required.  But  this 
care  may  vary  much  in  different  cases.  Common  wood  may 
be  given  to  a  carpenter  to  make  a  common  box.  A  chronom- 
eter may  be  delivered  to  a  watchmaker  to  be  cleaned  or  repaired. 
A  diamond  may  be  given  to  a  lapidary  to  be  cut  and  polished. 
The  care  required  in  these  cases  is  very  different ;  but  it  is 
always  ordinary  care;  that  is,  such  care  as  a  person  of  ordinary 
caution  and  capacity  would  take  of  that  specific  thing.  So  of 
the  skill  required.  A  person  who  receives  a  chronometer  to  re- 
pair, and  undertakes  the  work,  warrants  that  he  possesses  and 
will  exert  the  care  and  the  skill  requisite  to  do  that  work  prop- 
erly, and  to  preserve  the  article  safely.  If,  however,  one  chooses 
to  employ,  on  a  work  requiring  great  and  peculiar  skill,  one 
whom  he  has  reason  to  know  to  be  deficient  in  that  skill,  he 
can  have  no  remedy  for  the  want  of  it.  {gg) 

The  obligations  of  the  workman  are,  to  do  the  work  in  a 
proper  manner,  and  at  the  time  agreed  on,  or  in  a  reasonable 
time  if  none  be  specified ;  to  employ  the  materials  furnished  in 
the  right  way,  and  not  only  to  guard  *against  all  ordinary  haz- 
ards, but  to  use  the  best  endeavors  to  protect  the  thing  deliv- 
ered to  him  against  all  peril  or  injury.  And  he  should  do  the 
work  himself,  where,  from  the  circumstances,  it  may  be  pre- 
sumed that  the  personal  ability  or  skill  of  the  workman  is  con- 
tracted for. 

The  workman  has  a  special  property  in  the  thing  delivered  to 

(yij)  I\'lt  V.  School  Dist.,  2t  Venn.  297. 
VOL.  I.  54  [  C37  ] 


611- 


THE    LAW    OF   CONTRACTS. 


[book  III. 


him,  and  may  maintain  an  action  against  one  who  wrongfully 
takes  it  from  his  possession.  If  it  perishes  in  his  hands,  without 
his  fault,  the  owner  loses  the  property.  And  from  the  author- 
ities it  might  seem  that  the  owner  is  also  bound  to  pay  pro 
ta?ito  for  the  work  and  labor  already  expended  upon  it,  (where 
the  contract  does  not  provide  otherwise,)  as  well  as  the  materi- 
als used  and  applied,  (h)  We  doubt,  however,  if  the  practice 
in  this  country  be  altogether  so;  it  is  certain  that  a  distinct 
usage  to  the  contrary  would  control  any  such  rule ;  {i)  and 
without  asserting  that  there  is  any  such  established  usage,  we 
think  that,  generally,  where  an  owner  leaves  a  chattel  with  a 
workman  who  is  to  labor  upon  it,  and  the  chattel  is  acciden- 
tally destroyed  when  this  labor  has  been  partially  performed, 
each  loses  what  each  one  has  in  the  thing  destroyed ;  the  ov/ner 
his  property,  and  the  workman  his  labor.  If  the  thing  perishes 
from  intrinsic  defect,  the  reason  for  requiring  p7'o  tanto  compen- 
sation from  the  owner  would  be  stronger. 

Where  the  workman  is  employed  to  make  a  thing  out  of  his 
own  materials,  it  is  a  case  of  purchase  and  sale,  or  hiring  of 
labor,  and  not  of  bailment.  But  if  the  principal  materials  are 
delivered  to  the  workman,  this  is  a  case  of  bailment,  although 
he  is  to  add  his  own  materials  to  them,  {j) 


(h)  Menetonc  v.  Athawes,  3  Burr. 
1592;  Wilson  r.  Knott,  3  Humph.  473. 
Sec  also  Bniniby  v.  Smith,  3  Ala.  123. 

[i)  It  would  scorn  from  Gillett  v.  Maw- 
man,  1  Taunt.  137,  that  a  general  usage, 
to  the  eti'oet  that  the  ■workman  was  not  en- 
titled to  be  paid  until  his  work  was  fin- 
ished, would  ])rcvent  his  recovering  for  his 
work  and  lahor  on  an  article  accidentally 
destroyed,  while  the  work  was  going  on. 

(j)  Merritt  v.  Johnson,  7  Johns.  473. 
This  subject  was  thoroughly  discussed  in 
the  case  of  Gregory  v.  Stryker,  2  Denio, 
628.  It  was  an  action  of  trespass  for  a 
wagon,  and  the  defendant,  who  was  a  con- 
stable, justiticd  the  seizure  of  it  under  an 
execution  against  one  Rose ;  and  the 
question  was  whether  the  wagon  when 
tidcen  by  the  defendant  belonged  to  the 
plaintiff  or  I\osc.  It  ap])earcd  that  the 
wagon  in  question  formerly  belonged  to 
the  plaintiff,  and  that  he  made  a  contract 
with  Hose  to  repair  it  for  him.  Befoi'c  the 
wagon  was  repaired,  it  was  worth  but  lit- 

[G38] 


tic,  except  the  iron ;  none  of  the  wooden 
part  was  used  in  the  reparation  except  the 
tongue  and  evener.  When  tinishcd  it  was 
worth  $90,  and  Rose's  account  for  rejtairs 
amounted  to  $78.50.  The  defendant  took 
the  wagon  in  the  possession  of  liose  im- 
mediately after  it  was  completed,  and  sold 
it  on  the  execution.  Upon  these  facts  the 
court  held  that  the  property  in  the  wagon 
still  continued  in  the  plaintiff".  And 
Beardsley,  J.,  said  :  "  As  the  value  of  the 
new  materials  and  labor  used  and  em- 
ployed in  repairing  or  reconstructing  the 
wagon  greatly  exceeded  that  of  the  old 
materials  used  in  the  ojieration,  it  was 
urged  that  this  was  really  a  contract  with 
Rose  to  make  a  new  wagon,  and  not  for 
the  repair  of  an  old  one,  and  therefore,  as 
jnost  of  the  materials  were  furnished  by 
him,  his  right  of  property  in  the  vehicle 
woidd  continue  until  its  completion  and 
delivery  under  the  contract.  No  doubt 
wliere  a  manufacturer  or  mechanic  agrees 
to  construct  a  particular  article  out  of  his 


CH.  xir.] 


BAILMENT. 


"^612-*613 


*Where  materials  are  delivered  to  a  workman,  and  a  fabric  is 
to  be  returned  by  him,  made  at  his  own  election,  either  of  those 
materials  or  of  similar  materials  of  his  own,  as  if  a  certain 
weight  of  silver  be  given  him,  to  be  returned  in  the  form  of  a 
silver  goblet,  or  a  certain  quantity  of  wheat  to  be  returned  in 
flour,  sonic  difficulty  has  arisen,  and  some  conflict  of  opinion. 
We  *should  regard  such  a  contract  not  as  a  localio  operis  faci- 
endi,  but  as  creating  an  obligation  of  a  different  character  on 
the  part  of  the  workman  :  one,  indeed,  more  similar  to  a  debt. 
If  the  contract  expressly,  or  by  a  clear  implication,  imported 
that  the  fabric  to  be  returned  should  be  made  specifically  of 
the  very  material  delivered,  then,  if  the  material  should  perish 
or  be  lost,  without  the  fault  of  the  workman,  it  would  be  the 
loss  of  the  owner.  In  the  former  case,  where  the  workman  was 
at  liberty  to  use  what  materials  of  like  quality  he  would,  those 


own  materials,  or  out  of  materials  the 
principal  part  of  which  arc  his  own,  the 
property  of  the  article,  until  its  completion 
and  delivery,  is  in  liini,  and  not  in  the 
person  for  whom  it  was  intended  to  be 
made.  But  it  is  equally  clear,  as  a  gen- 
eral ])roposition,  that  where  the  owner  of 
a  damaged  or  worn  out  article  delivei-s  it  to 
another  j)erson  to  be  repaired  and  reno- 
vated by  the  labor  and  materials  of  the 
latter,  the  projjcrty  in  the  article  as  thus 
re|)aired  and  improved  is  all  along  in  the 
original  owner,  for  whom  the  repairs  were 
made,  and  not  in  the  person  making  them. 
The 'agreement  in  such  case  is  but  an 
every  day  contract  of  liailment — locatio  o/ie- 
ris/lirifitdi ;  and  the  origimil  owner,  so  far 
from  losing  his  general  jirojx'rty  in  the 
thing  thus  placed  in  the  liaiuls  of  another 
person  to  l)e  repaired,  accpiires  tliat  right 
to  whatever  accessorial  additions  are  made 
in  bringing  it  to  its  new  and  improved 
condition.  Nor  am  I  aware  that  in  ibis 
class  of  cases  it  is  at  all  important  what 
the  value  of  the  repairs,  actual  or  loin- 
]iarativc,  may  be.  No  case  is  ri'lenvd  to 
which  proceeds  on  that  distincti(jn,  nor 
any  writer  by  whom  it  is  adverted  to  as 
nniterial.  If  we  adopt  tiiis  dLstinetion, 
what  shall  be  its  limit  1  The  general 
property  must  be  in  one  jtarty  to  the 
exclusion  of  the  other,  for  surely  they 
are  not  tenants  in  common  in  the  thing 
repaire<I.  Shall  we  then  say  that  where 
the  value  of  the  rc])airs  falls  lielow  that  of 
the  dilapidated  article  on  which  tliey  were 


made,  the  original  owner  has  title  to  the 
article  in  its  imfiroved  condition,  and 
vice  versa,  where  they  exceed  it  in  value, 
title  to  the  article,  as  repaired  and  im- 
proved, passes  over  to  the  person  by 
whom  the  repairs  were  made  ?  Such  a 
rule  would  certaiidy  be  plain  enough,  and 
proliably  might  be  applied  without  great 
difficulty,  to  any  particular  case.  But  it 
would  be  found  to  give  rise  to  a  variety  of 
([uestions  never  lieard  of  in  actions  grow- 
ing out  of  the  reparation  of  decayed  or  in- 
jured articles ;  and  the  rule  itself,  I  am 
persuaded,  has  not  so  much  as  the  shadow 
of  autliority  for  its  support.  There  are  a 
multitude  of  instances  in  which  the  ex- 
pense of  proper  repairs  gieatly  exceeds 
the  value  of  the  article  on  which  they  arc 
ma<Ie.  It  is  so  in  the  lowly  operation  of 
footing  an  old  jjair  of  boots,  and  not  uu- 
frc<piently  in  repairing  a  broken  down  car- 
riage. The  |)rincii)le  contended  for  by 
the  defendant  is  not  necessary  for  the 
security  of  the  mechanic  by  whom  the  re- 
jiairs  are  nuide.  He  has  a  lien  for  his 
labor  and  materials,  and  may  retain  pos- 
session until  his  just  demands  are  satis- 
fied. This  aflbrds  ample  ])rotection  to  the 
mechanic.  And  who,  let  me  ask,  ever 
heard  tiiat  this  lien  was  limited  to  repairs 
which,  in  value,  fall  below  that  of  tlie  orig- 
inal article  on  which  they  are  made  '.  Yet 
this  limitation  nnist  necessarily  exist,  if 
the  ground  assumed  by  the  counsel  for  the 
defendant  is  well  taken." 

[G39] 


613- 


THE   LAW    OF   CONTRACTS. 


[book   III. 


delivered  to  him  would  be  regarded  only  as  a  partial  payment 
in  advance  for  the  thing  to  be  made  and  delivered  to  him  who 
advanced  it,  and  the  workman  would  be  still  bound  to  make 
and  deliver  this  article,  [k) 


{k)  This  subject  has  been  very  much 
discussed  within  the  last  few  years,  espe- 
cially in  the  courts' of  New  York.  The 
earliest)  case  that  we  have  seen  is  that  of 
Seymour  v.  Brown,  19  Johns.  44.  There 
the  plaintiif  sent  to  the  defendant,  a  mil- 
ler, a  quantity  of  wheat  to  be  exchanged 
for  flour  at  the  rate  of  a  barrel  of  flour  for 
every  five  bushels  of  wheat.  The  defend- 
ant mixed  the  plaintiff's  wheat  with  the 
mass  of  wheat  of  the  same  quality  belong- 
ing to  himself  and  others  ;  but,  before  the 
fiour  was  delivered  to  the  plaintiff,  the 
mill  of  the  defendant,  with  all  its  contents, 
wheat  and  flour,  was  entirely  destroyed  by 
fire  from  some  unknown  cause,  and  with- 
out any  fimlt  or  negligence  on  the  part  of 
the  defendant.  It  was  held  that  the  de- 
fendant was  not  responsible  for  the  loss  of 
the  plain  tiff' 's  wheat,  there  being  no  con- 
tract of  sale  by  which  the  property  was 
transferred  to  the  defendant.  This  case 
was  decided  in  the  year  1821.  A  few 
months  afterwards,  a  case  was  decided  the 
same  way  by  the  Court  of  Appeals  of  Vir- 
ginia, on  a  somewhat  similar  state  of  facts. 
Slaughter  v.  Green,  1  Eand.  3.  In  1825, 
the  question  came  up  in  Indiana  in  the 
the  case  of  Ewing  v.  French,  1  Blackf. 
353.  The  facts  of  the  case  were  almost 
identical  with  those  in  Seymour  v.  Brown, 
and  the  court  held  that  the  plaintiff  was 
entitled  to  recover.  Seymour  v.  Brown 
having  been  cited,  Blackford,  J.,  said : 
"  That  decision,  it  is  admitted,  cannot  be 
reconciled  with  ours  ;  but  as  an  indepen- 
dent tribunal,  we  must  after  consulting  the 
authorities  within  our  reach,  determine  for 
ourselves  as  to  what  the  law.  is,  however 
unpleasant  it  may  bo  to  differ  from  a  court 
so  eminently  distinguished  as  that  of  New 
York."*  In  1827  came  the  case  of  Hurd 
V.  West,  7  Cow.  752.  In  that  case  the 
defendant  had  let  a  number  of  shcej)  to 
one  Dayton,  and  Dayton,  while  the  sheep 
were  in  his  possession,  had  sold  them  to 
the  plaintiif.  And  the  question  was*,  wheth- 
er the  proi)erty  in  the  sheeji  was  in  Day- 
ton, so  that  he  could  transfer  them  to  the 
plaintiff.  Woodicorth,  J.,  in  remarking 
upon  the  evidence,  which  was  somewhat 
uncertain,  said  :  "  It  seems  to  nic  tlic  first 
qu#tion  was,  xvheiher  the  identical  sheep,  if 

[640] 


they  survived,  were  to  he  returned,  or  the 
same  number  of  sheep,  and  of  as  rjood  qual- 
itij.  In  the  first  case,  the  title  would  still 
have  continued  in  the  defendant  below, 
with  the  right  to  assert  it  when  the  period 
of  letting  expired.  If  the  terms  of  the 
letting  were  as  in  the  second  case,  or  in  the 
alternative,  the  right  of  the  defendant  be- 
low rested  in  contract ;  for  he  was  not 
authorized  to  claim  the  identical  sheep." 
Seymour  v.  Brown  was  not  cited  or  allud- 
ed to  either  by  the  counsel  or  the  court  in 
Hurd  V.  West,  but  the  reporter,  in  a  learned 
note,  in  which  he  discusses  the  question, 
considers  the  former  as  substantially  over- 
ruled by  the  latter,  and  such  would  seem 
to  be  the  case  from  the  language  which  we 
have  quoted.  Afterwards,  in  1 839,  the  pre- 
cise question  passed  upon  in  Seymour  v. 
Brown  came  up  again  in  the  same  court, 
in  Smith  v.  Clark,  21  Wend.  83,  in  which 
the  former  case  was  considered  by  the 
court,  and  overruled.  Since  that  time  the 
courts  of  New  York  have  uniformly  held 
the  law  as  we  have  stated  in  the  text. 
See  Pierce  v.  Schenck,  3  Hill,  28  ;  Baker 
V.  Woodrnff",  2  Barb.  520,  S.  C.  nom. 
Norton  v.  Woodruff,  2  Comst.  153  ;  Mal- 
lory  V.  Willis,  4  Comst.  76.  In  this  last 
case,  the  rule  as  now  held  was  very  clearly 
stated  by  Branson,  C.  J.  "  The"  distinc- 
tion," says  he,  "  which  will  be  found  to 
run  through  all  the  authorities  on  this  sub- 
ject, with  the  exception  of  two  cases  which 
have  been  overruled,  is  this,;  when  the 
identical  thing  delivered,  though  in  an 
altered  form,  is  to  be  restored,  the  contract 
is  one  of  bailment,  and  the  title  to  the 
projjert}'  is  not  changed.  But  when  there 
is  obligation  to  restore  the  specific  article, 
and  the  receiver  is  at  liberty  to  return  an- 
other thing  of  equal  value,  he  becomes  a 
debtor  to  make  the  return,  and  the  title  to 
the  property  is  changed ;  it  is  a  sale." 
The  same  doctrine  is  held  in  the  late  cases 
of  Wadsworth  v.  Allcott,  2  Selden,  64 ; 
Foster  v.  Pettibone,  3  Selden,  433  ;  Chase 
V.  Washburn,  1  Ohio  State  Bcjjs.  244.  A 
similar  rule  was  laid  down  in  Buftam  v. 
IMerry,  3  jNInson,  478.  In  that  case  A 
delivered  yarn  to  B,  on  a  contract  that  the 
same  should  be  mamifiicturcd  into  plaids. 
B  was  to  find  the  filing/,  and  was  to  weave 


CIL  XII.] 


BAILMENT. 


614-*615 


It  is  not  always  easy  to  determine  the  rights  and  obligations 
of  the  parties,  when  the  workman  does  his  work  *imperfectly,  or 


so  many  yards  of  the  plaids  at  15  cents 
per  yard,  as  were  equal  to  the  value  of  the 
yarn  at  (15  cents  per  pound.  It  was  Itdd 
that  hy  the  delivery  of  tlic  yarn  to  B 
the  property  thereof  vested  in  him.  On 
the  other  hand,  in  King  v.  Humphreys,  10 
IJarr,  217,  where  ra<r,s  were  delivered  by 
the  j)laintiff  to  the  defendant  at  a  certain 
price,  under  a  sf)Ceial  contract,  to  he  made 
into  ])aper,  whicli  was  to  be  returned  at  a 
certain  price — the  diti'erence  to  he  paid 
hy  a  note ;  and  ])aper  was  manufactured 
out  of  the  identical  rags  ;  it  was  held  that 
the  proijcrty  in  the  rags  and  paper  con- 
tinued in  the  plaintift'.  But  it  appeared 
that  this  Avas  the  usual  mode  in  which  the 
trade  made  contracts  for  working  rags 
into  paj)er ;  and  the  court  seem  to  put 
tlieir  decision  upon  the  ground  that  the 
plaintiif  was  entitled  to  receive  tlie  ])aper 
made  of  the  identical  rags  delivered.  If 
this  was  the  ground  of  the  decision,  the 
case  does  not  conflict  with  what  wc  iiave 
stated  to  he  the  cstahlished  rule;  the  ques- 
tion in  the  case  was  one  of  construction, 
and  it  rescmliled  in  tliis  respect  the  case  of 
Mallory  v.  Willis,  already  cited.  In  that 
case  the  plaintiff  agreed  to  deliver  good 
merchantable  wheat  at  a  flouring  mill  car- 
ried on  by  the  defendant,  "  to  I)e  manu- 
factured into  Hour."  The  defendant 
agrce(J  to  deliver  196  j)Ounds  of  su|)crline 
flour,  jiacked  in  barrels  to  be  furnished  by 
tlic  plaintiff,  for  every  four  bushels  and 
fifteen  ])ounds  of  wheat.  He  was  to  be 
paid  sixteen  cents  per  barrel,  and  two 
cents  c.xlm,  in  case  the  plaintiff  made  one 
shilling  net  ])rofit  on  each  barrel  of  flour. 
The  defendant  v,-as  to  guarantee  the  in- 
spection. The  plaintiff  wa,s  to  have  the 
"  offalls  or  feed,"  which  the  defendant 
was  to  store  until  sold.  It  was  held  that 
the  contract  imported  a  bailment  of  the 
wheat,  and  not  ii  sale,  and  therefore  that 
the  iihiiniiff  might  maintain  rc|dcvin  for  a 
portion  (jf  the  liour  nnmuCactuiTd  from  the 
wheat  delivered  under  the  contract.  Hut 
/iroiifon,  (/'.  J.,  and  Jlnrris,  J.,  dissented 
from  the  judgment  of  tlic  court,  and  de- 
livered able  opinions.  There  was  no  dif- 
ference of  o])inion,  however,  among  the 
members  of  the  court,  as  to  the  general 
rule  ;  the  only  cpicsiion  between  them  was 
one  of  construction.  —  A  (paction  some- 
what similar  to  tlie  one  that  wc  have  been 
considering  arises  where  materials  are  de- 
livered to  be  worked  up  at  the  shares,  as 

54* 


it  is  termed.  But  in  that  case  it  is  held 
that  the  contract  is  one  of  bailment,  and 
not  of  sale.  The  tpiestion  arose  in  Pierce 
I'.  Schcnck,  .'i  Hill,  28.  Logs  v/ere  deliv- 
ered by  the  plaintiff  at  the  defendant's 
saw-mill,  under  a  contract  with  the  de- 
fendant that  he  should  saw  them  into 
boards  within  a  specified  time,  and  that 
each  party  should  have  one  half  of  the 
boards.  It  was  /((•/(/  that  the  transaction 
enured  as  a  bailment  merely,  and  that  the 
bailor  retained  his  general  projjcrty  in  the 
logs  till  all  were  manufactured  pursuant 
to  the  contract.  And  Cowen,  J.,  said : 
"  The  plaintiff  deliveVed  his  logs  to  the 
defendant,  who  was  a  miller,  to  be  manu- 
factured into  boards  —  a  sjiecitic  ])urposc 
from  which  he  had  no  right  to  depart.  On 
completing  the  manufacture  he  was  to  re- 
turn the  specific  boards,  deducting  one 
half  as  a  compensation  for  his  labor.  It  is 
like  the  case  of  sending  grain  to  a  mill  for 
the  purpose  of  being  ground,  allowing  the 
miller  to  take  such  a  share  of  it  for  toll. 
This  is  not  a  contract  of  sale,  but  of  bail- 
ment—  loaitio  Ojuris  flicicndi.  The  bailor 
retains  his  general  projjcrty  in  the  whole 
till  the  manufacture  is  completed ;  and 
in  the  whole  afterwards  minus  the  toll. 
The- share  to  be  allowed  is  but  a  compen- 
sation for  the  labor  of  the  mamifacturer, 
whether  it  be  one  tenth  or  one  half  Thus, 
in  Collins  c.  Forbes,  .'3  T.  II.  310,  it  ap- 
peared that  Forbes  furnished  certain  tim- 
ber to  one  Kent,  which  the  latter  was  to 
work  up  into  a  stage  for  the  commission- 
ers of  the  victualling  oflice,  he  to  receive 
one  fourth  of  the  clear  jnofit  and  a  guinea 
per  week,  on  the  work  being  done.  This 
was  holden  to  be  a  baiiment  by  Forbes. 
So  in  Barker  v.  IJoberts,  8  Greenl.  101,  A 
agreed  to  take  B's  logs,  saw  them  into 
boards,  and  return  them  to  B,  who  was  to 
sell  them  and  allow  to  A  all  they  brought 
beyond  .>;o  much.  This  was  Itihl  to  be  u 
bailment,  and  not  a  sale,  though  it  was 
expressly  agreed  that  the  logs  should  re- 
main all  the  while  at  A's  risk.  A  having 
soUl  the  logs  instead  of  sawing  them,  B 
was  allowed  to  recover  their  value  against 
A's  vendee.  What  dilfeivnce  is  thcix'  in 
principle  between  an  agreement  by  the 
owner  to  pay  a  share  of  the  avails  in 
money,  ami  in  a  part  of  the  specilic  thing'? 
Either  is  but  a  conijiensation  for  his  labor. 
....  I  have  been  unable  to  sec  any  dif- 
ference   in  the   nature    of    the    contract, 

[641] 


616' 


THE  LAW  OF  co:jttracts. 


[book  III. 


in  a  manner  different  from  that  desired,  or  leaves  it  unfinished. 
The  diiliculty  is  in  the  application  of  the  *principles  of  law  to 
the  facts,  rather  than  in  ascertaining  those  principles.  We 
think  they  may  be  stated  thus. 

If  the  workman,  by  a  deviation  from  his  instructions,  makes 
his  work  of  no  use,  he  can  claim  no  compensation.  If  the  arti- 
cle be  still  of  some  use,  and  be  received  by  the  employer,  the 
workman  may  claim  pro  tanto;  but  his  claim  is  open  to  a  set- 
off or  cross  action  for  any  demand  the  employer  may  have  for 


whether  there  he  an  obligation  to  restore 
the  whole,  or  only  a  part  of  the  specific 
thing.  Tlie  owner  of  the  goods  may  re- 
serve the  general  ownership  in  the  whole 
or  in  any  part,  as  lie  pleases  ;  and  he  can 
with  no  more  propriety  be  said,  pro  tanto 
at  least,  to  have  parted  witii  it  in  tlie  lat- 
ter ca5c  than  in  the  former."  —  We  have 
already  had  occasion  to  refer  to  Hard  i\ 
West,"  Cow.  752.  Perhaps  that  case  de- 
serves some  further  notice.  It  was  rnled 
in  that  case,  as  we  have  seen,  that  where 
one  lets  chattels  for  hire,  with  an  agree- 
ment on  the  part  of  tlie  bailee,  in  the  alter- 
native, either  to  return  the  specific  chattels, 
or  others  of  a  similar  quality  ;  that  such  a 
transaction  amounts  not  to  a  bailment,  but 
to  a  sale.  The  Supreme  Court  of  Ver- 
mont have,  however,  in  a  series  of  cases, 
and  after  much  consideration,  decided  tlie 
same  point  the  other  way.  The  question 
arose  for  the  first  time,  we  believe  in  the 
latter  State,  in  the  case  of  Grant  v.  King, 
'14-  Verm.  367.  There  the  owner  of  cattle 
leased  them,  with  a  farm,  for  four  years, 
xinder  an  agreement  that,  at  the  expiration 
of  the  four  years,  the  lessee  might  either 
return  the  cattle  or  pay  a  stipulated  price 
for  them.  The  lessee  sold  the  cattle  be- 
fore tlic  four  years  had  expired.  And  it 
was  held  that  the  lessor  might  maintain 
trover  for  them  against  both  seller  and 
purcliaser.  The  same  question  arose 
again  in  Smith  v.  Niles,  20  Verm.  315, 
and  in  Downer  v.  Howell,  22  Verm.  347, 
and  was  decided  the  same  way.  In  the 
latter  case,  the  plaintiff  delivered  to  the 
defendant  certain  sheep,  and  the  defendant 
executed  a  receipt  therefor,  in  which  he 
agreed  to  keep  the  slieep,  or  cause  them  to 
be  kept,  "  the  full  term  of  three  years,  and 
return  the  same,  or  others  in  their  ]dace  as 
good  as  they  are."  Held,  that  this  was 
not  a  sale  of  sheep  to  the  defendant,  nor  a 
bailment  with  power  to  sell,  bnt  that  it 
^vas  a  bailment  of  the  proncrty  for  a  cer- 

[642] 


tain  period,  with  a  stipulation  for  its  re- 
turn at  the  expiration  of  the  l)ailraent ; 
and  that  the  property  in  the  sheep  would 
not  vest  in  the  bailee,  until  lie  had  ])er- 
formcd  his  part  of  the  agreement,  by  re- 
turning to  the  plaintiff  other  sheep  of 
equal  quality ;  and  tliat,  for  a  conversion 
of  the  sheep,  the  plaintiff'  could  sustain  an 
action  of  trover.  And  KeUoi;(/,  J.,  having 
cited  and  commented  upon  Grant  v.  King 
and  Smith  v.  Niles,  said :  "  We  arc  aware  ■ 
that  the  case  of  Hurd  r.  West,  7  Cow. 
752,  cited  at  the  argument,  is  opposed  to 
the  view  which  we  take  of  the  case  before 
us.  There  the  court  seem  to  consider  that 
the  alternative  words  in  the  contract  de- 
termine its  cliaracter,  —  that  the  right  of 
the  party  to  return  other  sheep  of  equal 
value  makes  the  contract  operate  as  a 
sale,  —  that  such  is  the  legal  effect  of  the 
contract,  and  that  upon  tlie  deliver}'* of  the 
pro])erty  it  vests  in  the  bailee,  or  vendee. 
This  decision  is  admitted  to  be  in  direct 
conflict  with  the  case  of  Seymour  v. 
Brown,  19  Johns.  44,  —  which  last  case  is 
said  to  be  overruled.  Wliicli  of  the  two 
cases  is  the  better  law  I  do  not  deem  it 
necessary  to  inquire,  as  I  think  the  case  at 
bar  must  be  controlled  by  the  decisions  of 
our  own  court.  It  is  analogous  to  tlie 
case  of  Smith  v.  iS'iles,  and  I  iliink  in 
])rinciple  cannot  be  distinguished  from  it. 
It  may  be  asked,  if  the  property  at  the 
time  of  the  bailment  does  not  pass,  when 
does  it  vest  in  tlie  bailed  Wc  answer 
certainly  not  until  the  bailee  peiforms  his 
part  of  the  contract,  by  returning  other 
sheep  of  equal  goodness.  That  sutiiciently 
secures  to  the  bailor  a  return  of  the  prop- 
erty bailed,  and  affords  to  the  bailee  all 
that  he  could  claim,  upon  the  most  liberal 
construction  of  the  contract.  This  con- 
struction of  the  contract  is  most  beneficial 
to  tlie  defendant,  and  carries  into  effect, 
we  think,  the  obvious  intention  of  tlie 
parties." 


CII.  XII.]  BAILMENT.  *617 

damages  sustained  by  the  deviation.  If  the  work  be  done  by- 
special  contract,  and  there  be  a  departure  from  its  terms,  the 
workman  can  recover  nothing  under  the  contract;  but  may  on 
a  quanlnm  meruit^  if  his  hibor  was  useful  to  his  employer,  and 
its  benefit  accepted,  but  subject  to  set-otf  as  before.  And  un- 
doubtedly, if  the  deviation  be  important,  and  the  materials  have 
been  so  used  as  to  have  lost  their  value  as  such,  the  employer 
may  abandon  them  to  the  workman,  and  recover  of  him  their 
value.  So  if  the  thing  be  left  imperfect  and  unfinished,  by  the 
fault  of  the  workman,  he  can  recover  nothing;  but  if  not  by 
his  fault,  then  he  should  have  compensation  pro  ianto,  subject 
to  set-olf.  And  if  the  contract  be  rescinded  by  the  act  or  assent 
of  both  parties,  then  the  workman  may  recover  pro  lanto.  If 
the  deviation  be  such  as  makes  the  thing  more  valuable  and 
more  costly,  the  workman  cannot  recover  for  this  additional 
cost,  unless  the  employer  assented  thereto.  (/) 

In  this  last  case, and  in  some  others,  it  is  often  important  and 
dilllcult  to  determine  what  is  an  assent  on  the  part  of  the  em- 
ployer, and  what  assent  is  sufficient,  {m)  Knowledge  *and 
silence  might  be  considered  so,  if  a  knowledge  of  the  deviation 
existed  while  it  was  going  on,  and  the  employer  could  put  a 
stop  to  it.  But  not  if  only  known  afterwards,  and  when  too 
late  to  prevent  or  arrest  the  alteration.  It  would  certainly  be 
safer  and  more  just  for  the  employer  to  signify  his  disapproba- 
tion as  soon  as  possible  ;  and  his  not  doing  .so  would  be  a  cir- 
cumstance, which,  connected  with  others,  as  directing  other 
alterations  in  conformity,  and  the  like,  might  lead  to  an  infer- 
ence that  he  assented  to  and  adopted  the  alteration. 

Contrai^ts.  for  work  and  labor  in  making  some  article  fre- 
quently contain  a  provision,  that  if  there  be  alterations  made 
with  the  assent  of  both  parties,  such  alterations  shall  be  paid 
for  or  allowed  ft)r  at  the  same  rate  of  i)ayment  as  that  ])rovi(led 
by  the   contract  for  the  \vt)rk    it   specifies  ;  and  we   think  that 

(/)  The  princi[)lcs;  stated  above  'n\  our  on  the  liiriiiL;  of  jierson;;.     We  sliall  defer 

text  are   not  peeuliar  to  the  eontraet  of  tlii.ir  fiutlier  eon.sideration  and  the  eitatiou 

whieli  \vc  are  now  treating.     They  apply  of  eases  until  we  come  to    the  iliapter  on 

ecpially   to    several  other  species  of  con-  Construction,  in  our  second  volume, 

tracts;  and  we  have  already  had  occasion  (m)  .See    Lovelock    r.    Ivin^r.    1    M.  & 

to  consider  them  somewhat  in  our  chapter  Koh.  60.     Sec  also  anlf,  pp.  .")40-542. 

[G43] 


618* 


THE    LAAV    OF    CONTRACTS. 


[book  III. 


such  would  be  the  operation  of  law,  without  an  express  stipula- 
tion. («) 

A  workman  employed  to  make  up  materials,  or  to  alter  or 
repair  a  specific  article,  has  a  lien  upon  the  materials  of  the 
thing  for  his  pay.  (o) 

Warehouse-men.  This  is  also  a  contract  for  mutual  benefit ; 
and  the  bailee  is  therefore  only  held  to  ordinary  diligence.  (/>) 
The  forwarding  merchants  of  this  country  are  *only  subject  to 
the   liabilities  of  warehouse-men,  (q)    unless  they   act  also   as 


(n)  Sec  ante,  p.  542,  and  note  (fj). 

(o)  M'Intyrc  v.  Carver,  2  W.  &'S.  392. 
In  this  case  it  is  decided  that  every  bailee, 
who  has  hy  l)is  htbor  and  skill  conferred 
value  upon  specific  chattels  bailed  to  him, 
has  a  particular  lien  on  them ;  hut  such 
lien  does  not  exist  in  favor  of  a  journey- 
man or  day-laborer.  So  in  Mor^ian  v. 
Coufjjdon,  4  Comst.  551,  it  is  lield  that 
cveiy  bailee  for  hire,  who  by  his  labor  or 
skill  imparts  additional  value  to  the  goods, 
hag  a  lien  thereon  for  his  charges,  there 
being  no  special  contract  inconsistent  with 
such.  lien.  And  such  lien  extends  to  all 
the  goods  delivered  under  one  contract, 
and  is  not  conlined  to  the  particular  por- 
tion on  which  the  labor  has  been  bestowed. 
Accordingly,  where  a  quantity  of  logs 
were  delivered  on  different  days  at  the  de- 
fendant's saw-mill,  upon  an  agreement  to 
saw  tlie  whole  quantity  into  boards,  and 
the  defendant  sawed  a  part  of  tlicm,  and 
delivered  the  boards  to  the  bailor,  without 
being  jjaid  for  the  service  ;  it  was  held 
that  he  had  a  lien  for  the  amount  of  his 
account  u])on  the  residue  of  the  logs  in 
his  jjossession.  And  the  care,  skill,  and 
labor  employed  by  a  trainer  upon  a  race- 
horse give  him  a  right  of  lien,  but  he 
waives  this  lien  by  contracting  to  allow  the 
owner  of  the  horse  to  take  it  for  racing 
whenever  he  chooses.  Forth  i\  Simpson, 
13  Q.  B.  G80. 

(p)  Chenowith  v.  Dickinson,  8  B. 
Monr.  1 56  ;  Foote  v.  Storrs,  2  Barb.  326  ; 
Hatchett  v.  Gibson,  13  Ala.  587  ;  Cailiff 
?•.  Danvers,  I'eake's  Cas.  114;  Piatt  v. 
Ilibbard,  7  Cow.  497  ;  Knapp  v.  Curtis, 
9  Wend.  60.  But  if  an  uncommon  or  un- 
exjiected  danger  arise,  he  must  use  elforts 
proportioned  to  the  emergency  to  ward 
it  off.  Leek  i-.  Maestaer,  1  Camp.  138. 
In  this  case  the  defendant  was  the  iiro- 
prietor  of  a  dry-dock,  the  gates  of  wliich 
■were  burst  open  Ijy  an  uncommonly  high 

[  044] 


tide,  and  the  plaintiff's  ship,  wliich  was 
lying  there,  forced  against  another  ship 
and  injured.  It  was  sworn,  that  with  a 
sufficient  number  of  hands  the  gates  might 
have  been  shored  up  in  time  so  as  to  bear 
the  pressure  of  the  water;  and,  though 
the  defendant  offered  to  prove  that  they 
were  in  a  perfectly  sound  state.  Lord 
Elleuh'jruittjh  held  that  it  was  his  duty  to 
have  had  a  sufficient  nundier  of  men  in 
the  dock  to  take  measures  of  precaution 
when  the  danger  was  approaching,  and 
that  he  was  clearly  answerable  for  the 
effects  of  the  deficiency.  So  a  wharfinger 
who  takes  u|)on  him  the  mooring  and 
stationing  of  the  vessels  at  his  wliarf  is 
liable  for  any  accident  occasioned  by  his 
negligent  mooring.  Wood  v.  Curling, 
15  M.  &  W.  626,  16  id.  628. — The  same 
rule  ap]dies  to  an  agister  of  cattle.  Broad- 
water v.  Blot,  Holt,  N.  P.  547. 

(r/)  Roberts  v.  Turner,  12  Johns.  232. 
This  is  a  very  imjiortant  case  on  the 
liability  of  forwardliu/  merchants.  It  was 
an  action  on  the  case  against  the  defend- 
ant as  a  common  carrier.  The  defendant 
resided  at  Utiea,  and  pursued  the  business 
of  forwnrding  merchandise  and  produce 
from  Utica  to  Schenectady  and  Albany. 
Itai>peared  that  the  course  of  business  was, 
for  the  funnirder  to  receive  the  merchan- 
dise or  produce  at  his  store,  and  send  it  by 
the  boatmen  M'ho  transported  goods  on 
the  Mohawk  River,  or  by  wagons  to  Sche- 
nectady or  Albany,  for  which  he  was  |)aid 
at  a  certain  rate  per  barrel,  &c. ;  and  liis 
comi)ensation  consisted  in  tlic  difference 
between  the  sum  which  iie  was  obliged  to 
pay,  and  that  which  he  received  from  the 
owner  of  the  goods.  The  defendant  re- 
ceived from  the  jdaintiff,  who  resided  in 
Cazcnovia,  in  Madison  County,  by  one 
Aldrich,  his  agent,  twelve  barrels  of  pot- 
ashes, to  be  forwarded  to  Albany  to  one 
Trotter ;  the  ashes  were  put  on  board  ii 


en.  XII.] 


BAILMENT. 


*619 


common  carriers,  in  which  case  they  come  *  under  the  peculiar 
rales  to  be  hereafter  noticed.  It  may  sometimes  be  difficult  to 
determine  in  which  capacity  such  a  jjcrson  acted  at  the  time  of 
the  loss.  But,  in  general,  the  rule  is,  that  if  the  transit  had  ter- 
minated, and  the  bailee  was  only  under  an  engagement  to  for- 
ward the  goods  by  another  carrier,  he  is  only  a  warehouse- 
man. (/•)     Nor  will  it  cause  him  to  continue  to  be  a  common 


boat,  to  1)0  carried  clown  the  Jfohawk  to 
Kcliencctafly,  and,  wliilc  j)roc'cedin<r  down 
tiie  river,  tlie  boat  ran  .a^^ainst  a  hridfrc 
and  snnk,  and  the  ashes  were  thcrel)y 
lost.  The  defendant's  [)riee  ibr  forward- 
ini;  to  Schenectady  was  twelve  shiilin;;s 
per  barrel,  and  the  jiriee  which  he  had 
af^rced  to  pay  for  transportinj^  the  jroods 
in  (|uestion  to  that  jilaec  was  elevcTi  shil- 
linp:s  ;  he  had  no  interest  in  the  freight  of 
the  p;<>ods,  anrl  was  not  concerned  as  an 
owner  in  the  l)oats  employed  in  the  car- 
riage of  mercliandise.  The  judge  being 
of  opinion  that  these  focts  did  not  make 
the  defendant  a  common  earner,  nonsnitcd 
the  plainrilf ;  and  a  motion  having  been 
made  to  set  the  nonsnit  aside,  SiK-nrtr,  J., 
said:  "On  the  fnllest  reflection,  I  per- 
ceive no  grounds  for  changing  the  oinnion 
expressed  at  the  circuit.  The  defendant 
is  in  no  sense  a  common  carrier,  eitiicr 
from  the  natui-e  of  his  business,  or  any 
community  of  interest  with  the  carrier. 
Aldiicli,  who,  as  the  agent  of  the  i)laintitf, 
delivereil  the  ashes  in  (piestion  to  the  de- 
fendant, states  the  defendant  to  be  a  for- 
warder of  merehainlise  and  jirodiicc  fiom 
I'tica  to  Schenectady  and  jMbany  ;  and 
that  he  delivered  the  ashes,  with  instruc- 
tions from  the  plaintift"  to  send  tiiem  to 
Col.  Trotter.  The  case  of  a  carrier 
stands  ujion  peculiar  grounds.  He  is 
held  responsible  as  an  insurer  of  the 
goods,  to  prevent  combinations,  chicanery, 
and  fraud.  To  extend  this  rigorous  law 
to  ]>crsons  standing  in  the  defendant's 
situation,  it  seems  to  me,  would  be  unjust 
and  unreasonalde.  The  ])!aintilf  knew,  or 
might  have  known,  (for  liis  agent  knew,) 
that  the  defendant  had  no  interest  in  the 
freight  of  tiie  goods,  owne(l  no  ])art  of  the 
boats  employed  in  the  carriage  of  goods, 
and  that  his  only  business  in  relation  to 
the  carriage  of  goods  c<insiste(l  in  forward- 
ing them.  That  a  person  thus  circum- 
stanced, should  be  deemed  an  insurer  of 
goods  forwarded  i>y  him,  an  insurer  loo 
without  reward,  would,  in  my  judgment, 


be  not  only  without  a  precedent,  hut 
against  all  legal  jirinciples.  Lord  Kenyon, 
in  treating  of  the  lialiiiity  of  a  carrier, 
(5  T.  II.  39 1,)  J7iakcs  this  the'criterion  to 
determine  his  character;  whether,  at  the 
time  when  the  accident  ha]i])ened,  the 
goods  were  in  the  custody  of  the  defend- 
ants as  common  carriers.  In  Garsidc  r. 
The  Proprietors  of  the  Trent  and  Mersey- 
Navigation,  4  T.  R.  581,  the  defendants, 
who  were  common  carriers,  undertook  to 
carry  goods  from  Stouqiort  to  Manchester, 
and  from  thence  to  be  forwarde<l  to  Stock- 
port. The  goods  arrived  at  Manchester, 
and  were  put  into  the  defendants'  ware- 
house, and  burnt  up  liefore  an  o])])ortimity 
an-ived  to  forward  them.  Lord  Kenyon 
liclil  the  defendants'  character  of  carriers 
ceased  when  the  goods  were  put  iiuo  the 
wareliouse.  This  ca.^e  is  an  autliority  for 
saying,  that  the  responsii)ilities  of  a  com- 
mon carrier  and  forwarder  of  goods  rest 
on  veiy  different  principles.  In  the 
present  case  the  defendant'  ))eiformed  his 
whole  undertaking  ;  he  gave  t!ie  ashes  in 
charge  to  an  ex|)erieneed  and  faithful 
boatman.  It  has  iieen  urged  that  the  de- 
fendant derived  a  benefit  from  the  cai-- 
riflge  of  the  goods,  in  receiving  cash  from 
the  owners  of  jn'odnce,  and  paying  the 
boatmen  in  goods,  and  also  in  charging 
more  than  he  actually  jiaid.  The  latter 
suggestion  is  doubted  in  point  of  fact; 
but  admitting  the  facts  to  be  so,  these  are 
advantages  derived  from  the  defendant's 
situation  as  a  warehouse  keeper  ami  for- 
warder of  goods,  and  by  no  means  imi)li- 
catc  him  as  a  carrier ;  for  surely  the  de- 
fendant is  entitled  to  some  renumeration 
for  the  trouble  in  storing  and  forwarding 
goods.  In  any  ami  every  point  of  view, 
there  is  not  the  least  pretext  for  charging 
the  defendant  witli  tiiis  loss  as  a  comnion 
carrier." 

(/•)  Garside  v.  Trent  and  Mei"sey  Navi- 
gation, 4  T.  1\.  .'iSl.  In  this  case  the  de- 
fendants, being  common  carriers  between 
Stourport  and  Manchester,  i-eccived  goods 

[045] 


620* 


THE   LAAV   OF   CONTRACTS. 


[book  TII. 


carrier  until  the  next  carrier  receives  the  goods,  that  he  has  no 
distinct  compensation  as  warehouse-man.  (s)  But  if  the  goods 
are  housed  by  the  carrier  between  the  termini  of  his  transit,  they 
are  still  under  his  charge  as  carrier,  (t)  And  if  he  pays  the 
warehouse  rent  to  another  person,  he  is  still  liable  as  carrier,  if 
his  duty  have  not  terminated,  and  he  is  bound  by  the  contract 
or  the  usage  to  deliver  the  goods,  (w)  But  if  he  is  only  bound  to 
keep  them  safely  until  the  consignee  or  owner  calls  for  them,  he 
is  then  only  a  warehouse-man,  although  the  goods  be  in  his  own 
store,  (v)  And  if  he  undertakes  to  forward  them  beyond  his 
*  own  route,  and  for  that  purpose  puts  them  into  a  suitable 
vehicle,  or  otherwise  disposes  of  them  in  a  proper  way  for  that 
purpose,  he  is  liable  only  for  negligence.  {20)  And  if  he  re- 
ceives goods  as  warehouse-man  into  his  store  on  his  own  wharf, 
for  the  purpose  of  carrying  them  forward,  he  is  not  liable  as  a 
carrier  for  their  loss  until  their  transit  begins,  actually  or  con- 
structively, because  until  then  he  does  not  assume  the  character 
of  a  carrier,   [x) 


from  the  ])laintiff  at  Stourport,  to  be  car- 
ried to  ]\Iiiiichcstcr,  and  to  be  forwarded 
from  the  hxtter  plaee  to  Stock])ort.  The 
defendants  carried  the  goods  to  Manches- 
ter, and  there  put  them  in  their  warehouse, 
in  wliich  they  were  destroyed  by  an  acci- 
dental fire  before  they  liad  an  o]iportunity 
of  forwardinj.;:  them.  The  court  ln-ld  tliat 
they  were  not  answerable  for  the  loss. 
See  also  ]5rown  i\  Denison,  2  Wend.  59.3  ; 
Acklcy  r.  Kellogg,  8  Cow.  223. 

(s)  See  Garside  v.  Trent  and  Mersev 
Navigation  Co.,  4  T.  R.  581. 

(0  Forward  v.  Pittard,  1  T.  R.  27. 

((')  II vile  r.  Trent  and  Mersev  Naviga- 
tion, 5  T.  R.  389. 

(r)  Webb,  in  re,  8  Taunt.  443.  In  this 
case,  A,  B,  C,  and  D,  in  partnership 
as  carriers,  agreed  with  S.  &  Co.,  of 
Frome,  to  carry  goods  from  London  to 
Fronie,  wheiv  they  were  to  be  dejjosited 
in  a  warelunise  belonging  to  the  ])artner- 
ship  at  Frome,  where  A  resided,  without 
any  cliargc  for  the  warehouse-room,  till  it 
should  be  conveuient  for  S,  &  Co.  to  take 
the  goods  home.  Goods  of  S.  &  Co.,  car- 
ried l)y  the  partners  from  London  to 
Frome,  under  tliis  agreement,  were  depos- 
ited in  the  warehouse  at  tlie  latter  place, 
and  destroyed  by  fire.     It  was  held   that 

'  [  646  ] 


the  partners  were  not  liable  to  S.  &  Co. 
for  the  value  of  the  goods  Inirnt.  So  in 
the  case  of  Thomas  r.  The  Boston  and 
Providence  R.  R.  Corporation,  10  Met. 
472,  it  was  held  that  the  proprietors  of  a. 
railroad,  who  transport  goods  over  their 
road,  and  deposit  them  in  their  warehouse 
without  charge,  until  the  owner  or  con- 
signee has  a  reasonable  time  to  take  them 
away,  arc  not  liable,  as  common  carriers, 
for  tlie  loss  of  the  goods  from  the  ware- 
house, but  are  liable,  as  depositaries,  only 
for  want  of  ordinary  care. 

(w)  Thus,  where  common  carriers  re- 
ceived goods  on  board  their  sloop,  to 
transport  from  New  York  to  Troy,  where 
they  transferred  them  on  board  of  a  canal 
boat  bound  to  the  north,  jiursnant  to  the 
bailor's  instructions  ;  but  were  to  receive 
no  reward  for  the  transfer  or  further  trans- 
portation ;  and  the  goods  were  lost  by  the 
upsetting  of  the  canal  boat;  it  was  held 
that  their  character  of  common  carriers 
ceased  at  Troy  ;  and  having  exercised  or- 
dinary care  in  seeing  the  goods  placed  on 
board  a  safe  boat,  they  were  not  responsi- 
ble for  the  loss.  Ackley  v.  Kellogg,  8 
Cow.  223. 

(x)  Piatt  V.  Ilibbard,  7  Cow.  497.  In 
White  V.  Humphrey,  11  Q.  B.  43,  where 


CH.  XII.] 


BAILMENT. 


*621 


It  is  not  necessary  that  the  goods  be  housed  to  afiect  the 
bailee  with  the  liabilities  of  a  warehouse-man.  It  is  enough  if 
they  are  actually  within  his  charge  and  custody  for  the  purpose 
of  being  housed,  {y) 

As  to  the  obligation  of  the  warehouse-man  to  deliver  the 
goods  to  the  consignee,  or  redeliver  them  to  the  consignor,  in 
the  case  where  they  are  claimed  by  another  as  the  proper  owner 
who  forbids  such  delivery,  there  seems  to  be  some  uncertainty.  (2) 
*  We  take  the  law  to  be,  however,  that  he  must  decide  for  him- 
self which  is  the  better  right,  and  is  exposed  to  loss  if  he  decide 
it  wrongly.  But  if  he  deliver  it  to  the  original  bailor,  or  his 
consignee,  the  true  owner  should  not  recover  damages  from  him 
by  merely  proving  his  ownership  and  a  notice  to  the  warehouse- 
man, nor  unless  he  exhibit  to  the  warehouse-man  such  j^roofs  as 
might  reasonably  be  required  of  his  ownership.     And  if  on  such 


the  plaintilT  deposited  hops  in  the  defend- 
ant's wareliouse  to  he  conveyed  to  London 
in  tlic  harges  of  the  defendant  (wlio  was 
also  a  carrier,)  wh.enever  the  plaintiff 
should  diirct,  and  in  the  mean  time  to  he 
kept  hy  the  defendant  without  charge  for 
wareliousinij,  it  was  held  hy  the  jud;^c  at 
nisi  ]>iii's  that  the  advantai^e  of  carryinj;i; 
the  ho|)S  for  hire  might  lie  considered  as 
payni(!nt  for  tiie  warehousing,  and  that  the 
fleiendant  was  not,  therefore,  a  gatuitous 
hailee,  and  so  liahle  only  for  gross  negli- 
gence ;  and  the  Court  of  Queen's  Bench 
refused  to  grant  a  new  trial  on  the  ground 
of  misdirection. 

(y)  Thus  it  has  hcen  decided,  that  as 
soon  as  the  goods  arrive,  and  the  crane  of 
the  warehouse  is  apjilied  to  raise  them  into 
the  warehouse,  the  liahility  of  tlie  ware- 
houseman commences  ;  and  it  is  no  de- 
fence that  they  are  afterwards  injured  hy 
falling  into  the  street  from  tlie  Wreaking  of 
the  tackle,  even  if  the  carman  who 
brought  them  has  refused  the  oftcr  of 
slings  for  further  security.  Thomas  i-. 
Day,  4  Esp.  2G2. 

(z)  In  Ogle  V.  Atkinson,  5  Taunt.  759, 
it  was  deii<led  that  a  warehouse-man,  re- 
ceiving goods  from  a  consignee,  who  has 
had  actual  possession  of  them,  to  be  kept 
for  his  use,  may  nevertheless  refuse  to  re- 
deliver them,  if  they  are  the  property  of 
another.  But  several  suhsctpient  cases 
have  cstaldished  tliat  a  warehouse-man 
cannot  dispute  the  title  of  his  bailor,  or  of 
any  other  person  whose  title   he  has  ac- 


knowledged, in  an  action  brought  against 
him  by  such  ])Ci-son.  See  Gosling  v.  Bir- 
nie,  7  Bing.  .339  ;  HoU  v.  Griffin,  10  Bing. 
24G  ;  Kieran  v.  Sandars,  6  Ad.  &  El.  .515  ; 
Harinan  v.  Anderson,  2  Camp.  243 ; 
Stonard  v.  Dunkin,  id.  344 ;  Barton  r. 
Wilkinson,  18  Verm.  186.  In  the  late 
ease,  however,  of  Chcesman  v.  Excell,  4 
E.  L.  &  E.  438,  where  property  had  been 
delivered  by  the  plaintiff  to  the  defendant 
for  the  puqtose  of  defeating  an  execution 
against  the  plaintiff,  it  was  held  that  in  the 
presentactionof  trover  the  defendant  might 
set  U])  tlie  title  of  a  jirevious  transferree  of 
the  plaintiff" to  defeat  the  jdaintiff 's  riglit  to 
recover,  and  the  court  i-cfiT  to  Ogle  v.  At- 
kinson as  in  jjoint.  The  court  are  inclined 
to  tlie  ojjinion  that  in  the  case  of  a  pledge 
the  i)ledgee  may  set  up  tlwjus  tirtii  unless 
he  has  made  an  absolute  agreement  to 
give  up  the  property  to  tlie  party  pledging 
it.  See  also,  Bates  v.  Stanton,  1  Duer,  79  ; 
Pitt  r.  Albritton,  12  Ire.  L.  77.  So  if  a 
warehouse-man  delivers  the  goods  intrust- 
ed to  him  to  a  wrong  person  by  mistake, 
or  they  are  obtained  from  him  Iiy  fraud, 
as  by  a  forged  order,  he  is  lial)le  to  his 
bailor  for  their  value.  Lnbboik  r.  Inglis, 
1  Stark.  104;  Willard  r.  Bridge,  4  l}arb. 
301.  On  tlie  other  hand,  if  the  goods  .ire 
taken  from  the  possession  of  the  warehouse- 
man by  the  authority  of  the  law,  this  con- 
stitutes a  good  deicnce  for  him  in  an 
action  brouijht  against  him  by  his  bailor. 
Burton  r.  Wilkinson,  13  Venn.  186. 

[G47] 


I 


621- 


THE    LAW    OF    CONTRACTS. 


[book  III. 


evidence  he  did  deliver  the  goods  to  the  person  claiming  to  be 
owner,  and  it  appeared  afterwards  that  the  claim  was  un- 
founded, the  original  bailor  should  be  limited  in  his  recovery  to 
the  strictest  compensation,  if  the  warehouse-man  could  show 
that  he  acted  on  evidence  which  would  satisfy  a  cautious  and 
honest  man.  In  practice  it  is  usual  in  such  cases  to  demand 
and  receive  an  indemnity  from  the  party  put  in  possession  of 
the  goods. 

In  an  action  against  a  warehouse-man  to  recover  the  value 
of  lost  baggage,  the  owner  has  been  admitted  to  prove  the  con- 
tents, in  the  same  way  as  in  a  similar  action  against  a  common 
carrier  ;  but  this  privilege  is  strictly  confined  to  the  ordinary 
baggage  of  a  traveller,   (a) 

A  warehouse-man  has  a  lien  on  the  goods  which  he  stores 
for  his  charges  for  those  goods  ;  and  he  may  redeliver  a  part  of 
those  goods,  and  retain  his  lien  on  the  residue  for  the  whole  of 
his  charges  on  all  the  goods  ;  provided  they  were  delivered  to 
him  as  one  bailment.  But  he  has  no  general  lien  on  the  goods 
for  all  his  charges  against  the  bailor  for  storage  of  other 
goods,  (aa) 

Wharfingers.  This  kind  of  bailment  is  quite  similar  to 
that  first  spoken  of,  and  the  rules  of  law  applicable  to  it  are 
much  the  same,  {b) 

It  has  been  somewhat  questioned  whether,  in  the  case  of  de- 
positaries for  hire,  and  loss  or  injury  to  the  goods,  the  law  casts 
the  burden  of  proving  negligence  on  the  owner,  or  that  of  prov- 
ing due  care  and  the  absence  of  negligence  on  the  depositary. 
We  have  considered  this  point  in  a  previous  note,  (c)  and  the 
cases  there  cited  show  that  the  decided  weight  of  authority  is 
in  favor  of  requiring  proof  of  negligence,  on  the  ground  that 


(«)  Clark  r.  Spencc,  10  Watts,  335. 

{an)  Schmidt  r.  Blood,  9  Wend.  268. 
The  suhjcct  of  the  wareliousc-man's  lien 
is  fully  and  learnedly  considered  in  Stein- 
man  V.  Wilkins,  7  Watts  &  S.  46G. 

{h)  riatt  V.  llibbard,  7  Cow.  4'J7,  502, 
n.  (b) ;  Sidaways  v.  Todd,  2  Stark.  400  ; 
Toote  r.  Storrs,  2  Barb.  326.  It  has 
sometimes  been  inferred  from  the  cases  of 
Ross  V.  Johnson,  5  Burr.  2S25,  and  Mav- 

[048] 


inp  V.  Todd,  1  Stark.  72,  that  the  rule  as 
to  the  liability  of  wharfinjjers  was  ditfercnt 
from  what  wc  have  stated,  and  tliat  they 
arc  held  to  the  same  degree  of  resi)onsi- 
bility  as  common  carriers.  But  it  is  very 
doubtful  whether  those  cases  justify  such 
an  inference  ;  and  if  they  do,  they  cannot 
now  be  considered  as  law. 
(c)   Sec  ante,  p.  606,  n.  (u). 


Cn.  Xir.]  BAILMENT.  *622 

the  law  will  not  intend  any  *wrong-doing.  But  there  have  been 
opposite  decisions;  and  courts  which  adopt  this  rule  sometimes 
regret  its  existence. 

The  wharfinger  has  a  lien  on  vessel  and  goods  for  his  wharf- 
age, (d)  And  he  is  said  to  have  not  only  a  specific  lien,  but  a 
general  lien  on  the  goods  for  his  balance  against  the  owner  in 
respect  to  freight  and  wharfage  ;  we  do  not,  however,  consider 
this  certain.  {(Id) 

Postmasters  might  be  regarded  as  depositaries  for  a  compen- 
sation, or  as  carriers  ;  and  as  common  carriers,  because  they  are 
obliged  to  carry  for  all.  But  they  are  also  public  officers  ;  re- 
ceiving their  appointments  and  their  compensation  from  the 
State,  which  alotie  regulates  and  directs  their  duties.  Hence 
they  come  under  a  different  obligation  and  liability  from  that  of 
ordinary  common  carriers.  The  postmaster-general  is  not 
liable  for  loss,  although  it  be  caused  by  the  negligence  of  his 
servants.  The  law  was  so  established  in  Lord  Holt's  time, 
though  against  his  opinion,  in  the  case  of  Lane  v.  Cotton  ;  (c) 
and  that  case  has  been  considered  as  law  ever  since.  (/)  But 
it  should  seem,  from  general  principles,  that  if  such  servant  were 
wholly  incompetent,  and  the  knowledge  of  the  incompetency 
were  brought  home  to  the  postmaster-general,  this  should  make 
him  responsible ;  and  if  it  could  be  shown  that  the  servant  was 
appointed  or  retained  from  unworthy  motives  after  such  knowl- 
edge, the  postmaster-general  ought  certainly  to  be  held  liable. (ij) 
His  deputies  are  not  liable  except  for  loss  caused  by  their  own 
fault  or  negligence  ;  but  for  this  it  is  clear  that  they  are  liable.  (//) 
This  negligence  may  be  in  aj^pointing  unfit  persons  to  subordi- 

(d)  Jolnison  r.  The  Schooner  McDon-  hecs,  13  Ohio,  523,  the  same  rule  was  ap- 

ou^'h,  Giliiin,  101;  LcwLs,  fx/jfliVf,  2  Gall,  plied  to   a   mail   contractor.     Therefore, 

483.  where  money  tnuiMnitted  hy  mail  was  lost 

{clil)  The  King  v.  Ilumpheiy,  1  McLcl.  hy   tlic   carelessness   of    the   contractoi-s' 

&Youn^e,  173.  ajrents  wlio  carried   tiic  mail,   tiie  lourt 

(c)  1  lA.  Kayni.  64G,  12  Mod.  472.  held   that  the  contractors  were  not  liahle. 

(  /■)  Whitfield  r.  Le  Desjiencer,  Cowp.  The  case  of  Ilntehins  v.  IJrackctt,  2  Fost. 

754;   Sehroyer   v.  Lyncli,  8  Watts,   453  ;  252,  i.s  to  the  same  effect. 
8upcrvisor>   of  Albany   Co.  r.  Dorr,  25         (7)   See  authorities  cited  ('(i/'m,  n.  (/). 
Wend.   440,  i)er  .\W.w//,  C.  J.;   Wi^'^nns         (/i)    Whitfield  i-.  Le  Despcncer,  Cowp. 

c.  Hathaway,  G  Barb.  032  ;  Martin  v.  The  754 ;  Rowninfj  ;;.  Goudchild,  3  Wils.  443; 

Mayor,  &c. "of  Brooklyn,  1   Ilil',  545,  per  Maxwell  i-.  Mcllvoy,  2  Biiii),  211  ;  Christy 

Cuwiii,  J.     See  also  liunlop  v.  ^lunroe,  7  v.  Smith,  23  Verm'.  603.     See  also  Bolan 

Craneh,  242.     And  in  Cornwell  v.  Voor-  v.  AVilliamson,  2  Bay,  .")51,  1  Brev.  181. 

VOL.  1.  55  '  [  G-iO  ] 


623' 


THE    LAW    OF    CONTRACTS. 


[book  III. 


nate  offices,  or  in  not  using  due  precautions  to  secure  their  good 
conduct;  for  each  deputy  postmaster  is  bound  to  exercise  due 
care  in  such  appointments,  and  due  watchfulness  over  the  con- 
duct of  his  subordinates,  (i)  And  *it  would  seem  that  the  post- 
master-general should  be  held  to  some  measure  of  the  same 
obligation. 

Innkeepers.  An  inn  has  been  judicially  defined  as  "  a  house 
where  the  traveller  is  furnished  with  every  thing  which  he  has 
occasion  for  whilst  upon  his  way."  (j)  There  need  not  be  a 
sign  to  make  it  an  inn.  (k)  But  a  mere  coffee-house,  (/)  or 
eating-room,  or  boarding-house,  (//)  is  not  an  inn.  (vi) 

Public  policy  imposes  upon  an  innkeeper  a  severe  liability. 
The  latter,  and  on  the  whole,  prevailing  authorities,  make  him 
an  insurer  of  the  property  committed  to  his  care,  against  every 
thing  but  the  act  of  God,  or  the  public  enemy,  or  the  neglect  or 
fraud   of  the   owner  of  the   property,  [n)     He  would  then  be 


(i)  Scliroycr  v.  Lynch,  8  Watts,  453  ; 
Wiggins  V.  Hatluiway,  6  Barb.  632; 
Christy  v.  Smith,  23  Venn.  663.  And  in 
Bishop  V.  Williamson,  2  Fairf.  495,  this 
rule  \s'as  ai)]3lied  to  a  case  where  a  deputy 
postmaster  had  employed  an  assistant 
without  having  an  oath  administered  to 
him,  as  was  required  by  the  statute  of  the 
United  States.  Accordingly,  where  such 
assistant  wrongfully  refused  to  deliver  a 
letter  to  the  plaintiff,  his  employer  was 
held  liable  in  damages.  See  also  Bolan 
V.  Williamson,  1  Brev.  181. 

(j)  Per  Bayleij,  J.,  in  Thompson  v. 
Lacy,  3  B.  &  Aid.  283,  286. 

[k]  Bac.  Abr.  tit.  Inns  and  Innkeepers, 
(B.)  "A  sign  is  not  essential  to  an  inn, 
Imt  is  an  evidence  of  it."  Per  Holt,  C.  J., 
in  Parker  v.  Flint,  12  Mod.  254. 

(/)   Doc  d.  Pitt  V.  Laming,  4  Camp.  73. 

(//)  This  was  directly  held  by  Erie,  J., 
in  Uancey  v.  Richardson,  20  Law  Times 
Bep.  213. 

(i«)  So  one  who  entertains  strangers 
occasionally,  althougli  he  receives  com- 
pensation for  it,  is  not  an  innkeeper. 
State  V.  Mathews,  2  Dev.  &  Bat.  424  ; 
Lyon  V.  Smith,  1  Morris,  [Iowa,]  184. 
So  it  has  been  held  that  a  housekeeper  at 
Tunbridgc  or  Ejisom,  or  other  wateriug- 
jilace,  who  lets  lodgings,  and  furnishes 
meat  and  drink,  and  provides  stable  room 
for  the  company  who  I'csort  there  for 
Irealth  or  pleasure,  is  not  an  innkeeper. 

[650] 


Parkhouse  v.  Forstcr,  5  Mod.  427,  S.  C 
nom.  Parkhurst  v.  Foster,  Cartli.  417,  1 
Salk.  387.  And  Lord  Holt  said  the  case 
was  so  plain  that  there  was  no  occasion 
for  giving  reasons.  See  also  Bonner  v. 
Welborn,~7  Geo.  296.  But  in  Thompson 
V.  Lacy,  3  B.  &  Aid.  283,  it  was  held  that 
a  house  of  public  entertainment  in  London, 
where  beds,  provisions,  &c.,  were  furnished 
for  all  persons  paying  for  the  same,  but 
which  was  merely  called  a  tavern  and 
coffee-house,  and  was  not  frequented  by 
stage-coaches  and  wagons  from  the  coun- 
try, and  which  had  no  stables  belonging 
to  it,  was  to  be  considered  as  an  inn,  and 
the  owner  was  sulyect  to  the  liabilities  of 
innkeepers,  and  had  a  lien  on  the  goods 
of  his  guest  for  the  payment  of  his  bill, 
and  that  too  even  where  the  guest  did  not 
appear  to  have  been  a  traveller,  but  one 
who  had  previously  resided  in  furnished 
lodgings  in  London.  In  Wintermute  r. 
Clarke,  5  Sandf.  247,  the  court  say  that  in 
order  to  charge  a  party  as  an  innkeeper  it 
is  not  necessary  to  prove  that  it  was  only 
for  the  reception  of  travellers  that  his 
house  was  kept  open,  it  being  sufficient  to 
prove  that  all  who  came  were  received  as 
guests  without  any  previous  agreement  as 
to  the  time  or  terms  of  their  stay.  A  pub- 
lic house  of  entertainment  for  all  who 
choose  to  visit  it  is  the  true  definition  of 
an  inn. 

(n)  Mason  r.  Thompson,  9  Pick.  280, 


CH.  XII.] 


BAILMENT. 


*624-*62o 


*Iiable  for  a  loss  occasioned  by  liis  own  servants,  by  other  guests, 
by  robbery  or  burglary  from  without  the  house,  or  by  rioters  *or 


per  Wilde,  J.  ;  Kielinioiid  v.  Sinitli,  8  B. 
&  C.  9,  per  Bcn/lci/,  J.  ;  Piper  v.  Manny, 
21  Wend.  282,  pui-JNe/.w/),  C.  J.  ;  Griunell 
V.  Cook,  3  Hill,  485,  per  Bronson,  J.  ; 
Manniii<j^  v.  AVclls,  9  Iluni])li.  746  ; 
Thickstun  v.  Howiinl,  8  Bhukf.  5.35 ; 
Mateer  r.  Brown,  1  Cala.  221  ;  Shaw  r. 
Berry,  31  Maine,  478.  Tiiis  last  was  an 
action  on  the  case  against  the  defendant, 
who  was  an  innkeeper,  for  an  injury  to 
the  plaintiti's  horse,  while  at  the  defend- 
ant's stahle.  The  horse  was  i)laeed  at  the 
stable  in  the  eveninfj,  and  the  next  morn- 
ing one  of  his  hind  legs  was  found  to  have 
been  broken  above  the  gambrel  joint.  The 
evidence  tended  to  show  that  lie  was 
treated  with  care  and  faitiifulncss  ;  that  he 
was  jilaeed  in  a  safe  and  siutable  stall, 
witli  sutheient  and  suitable  bed<ling- ;  and 
that  the  injury  hapj)ened  without  the  fault 
of  any  one.  The  learned  judge,  before 
whom  the  cause  was  tried,  instructed  the 
jury,  that  the  rule  of  law  applicable  to 
common  carriers  was  not  ap])licahle  to 
imiliolders  ;  that  the  law,  in  case  of  injury 
to  goods  or  property  while  in  the  custody 
of  the  innkeeper,  j)resumed  it  to  have  hap- 
pened through  his  negligence  or  fault,  and 
would  hold  him  responsible  for  it,  unless 
lie  could  prove  that  he  was  guilty  of  no 
fault  ;  and  that  if  the  defendant  liad 
proved  that  he  was  not  in  fault,  the  action 
could  not  Ije  maintained.  The  case  was 
carried  up  to  the  Supreme  Court  on  ex- 
cejition  to  these  instructions,  and  that 
court,  after  an  elaborate  examination  of 
the  authorities,  Iwld  the  instructions  to  be 
incorrect ;  and  declared  the  rule  of  law  to 
be.  that  an  innkeeper  is  bound  to  keep  the 
goods  and  chattels  of  his  guest  so  that  they 
shall  be  actually  safe ;  inevitable  acci- 
dents, the  acts  of  pul)lic  enemies,  the 
owners  of  the  goods  and  their  servants, 
cxceptcfl ;  and  that  proof  that  there  was 
no  negligence  in  the  iiinkee|)er  or  his  ser- 
vants was  not  sutlicient  for  his  immunity. 
It  must  be  confessed,  however,  that  two 
recent  and  well-considered  cases  ado])t  a 
dilferent  rule  on  this  subject  from  that 
stated  in  the  text,  and  supported  by  the 
authorities  just  cited.  Wi'alludeto  Daw- 
son r.  Chamney,  5  Q.  B.  ItU,  and  Mer- 
ritt  r.  Claghoni,  2-'i  ^'erm.  177.  Dawson 
i:  Chamney  was  an  action  on  the  case  to 
recover  damages  for  an  injury  to  theplain- 
tift-s  horse.  It  appeared  that  the  defend- 
ant was  an  innkeeper ;  that   the   ])laintitr 


gave  the  horse  in  charge  totlic  defendant's 
ostler,  who  placed  him  in  a  stall  where 
there  was  another  horse ;  and  that  the  in- 
jury was  done  by  the  other  horse  kicking 
the  horse  of  the  plaintiff.  The  defendant 
having  called  witnesses  to  show  that 
proper  care  had  been  taken  of  the  horse, 
the  learned  judge  directed  the  jmy  to  find 
for  the  ]daintitf,  if  they  were  of  opinion 
that  the  defeiulant,  by  himself  or  servants, 
had  been  guilty  of  direct  injury,  or  of 
negligence,  but  otherwise  for  the  defend- 
ant. The  jury  found  a  verdict  for  the 
defendant,  and  the  Court  of  Queen's 
Bench  held  the  direction  proper..  This 
decision  was  considered  in  the  case  of 
Mateer  ?•.  Brown,  1  Cala.  221.  The 
court  adopt  the  dictum  of  Mr.  Justice 
Baijlaj  in  Hichmond  r.  Smith,  8  B.  &  C. 
9,  that  the  innkeeper  very  closely  resem- 
bles a  common  carrier,  and  is  liable  for 
any  loss  not  occasioned  by  the  act  of  God 
or  the  king's  enemies,  except  where  the 
guest  chooses  to  have  the  goods  under  his 
own  care  ;  and  after  a  lengthy  and  able 
consideration  of  the  subject  they  say  that 
although  that  dictum  of  Mr.  Justice  Bui/- 
Icij's  has  been  overturned  in  England  by 
the  decision  of  Dawson  v.  Chamney,  they 
think  the  dictum  right  and  the  decision 
wrong.  The  case  of  Men-itt  v.  Claghorn 
was  also  an  action  on  the  case  to  recover 
the  value  of  two  horses,  a  douiile  harness, 
two  horse  blankets,  and  two  halters.  On 
the  trial,  it  was  conceded  that  the  defend- 
ant was  the  keeper  of  an  inn,  and  that  the 
agent  of  the  plaintirt'  was  reccivtxl  as  a 
guest  at  the  defendant's  inn,  with  the  prop- 
erty in  (piestion,  belonging  to  the  plaintitV; 
and  that  the  horses  aiul  other  ])roperty 
were,  as  is  usual  in  such  cases,  put  into 
the  barn  of  the  defendant,  which  was  a 
])art  of  the  premises,  and,  at  the  usual 
time  for  closing  the  stable,  the  barn  was 
locked  by  the  defendant  ;  and  that  about 
daylight  the  next  morning,  .•md  while  the 
property  was  tiius  in  the  custody  of  the 
defendant,  as  an  innkeei)er,  the  barn  was 
discovered  to  be  on  (ire,  sup)»osed  to  be 
the  work  of  an  incendiary,  and  the  liorscs 
and  other  pro])eity  were  burned  and  de- 
stroyed ;  and  that  there  was  no  ne}:ligence, 
in  point  of  fact,  in  the  ilefendant  or  bis 
servants,  in  the  case  of  the  barn  and  of 
the  projjcrty  in  (piestion.  On  these  facts, 
the  court  held  that  tlie  plaintiff  was  not 
entitled   to  recover.     And  Jicdfidd,  J.,  in 

[G.71]* 


I 


625- 


THE   LAW   OF   CONTRACTS. 


[book  III. 


mobs.     Nor  will  it  excuse  him  if  he  were  sick,  insane,  ov  absent 
at  the  time  ;  for  he  is  bound  to   have  competent  servants  and 


agents,  (o) 


But  it  is  a  good  defence  that  the  loss  was  caused  by  the 
servant  of  the  owner,  (p)  or  by  one  who  came  with  him  as  his 
companion,  ((/)   or   by  the  negligence  of  the  owner  ;(/•)  or  that 


•giving-  the  oi)inion  of  the  court,  said : 
"  Tlie  case  finds  that  the  phiintiff's  loss 
v^as  without  any  negligence,  in  point  of 
fact,  in  tlie  defendant  or  his  servants. 
From  this  we  are  to  understand  that  no 
degree  of  diligence  on  his  part  could  have 
prevented  the  loss.  If,  then,  the  defend- 
ant is  liable,  it  must  be  for  a  loss  happen- 
ing by  a  cause  beyond  his  control.  In 
saying  this  wc  have  reference  only  to  the 
highest  degree  of  what  would  be  esteemed 
reasonable  diligence,  under  the  circum- 
stances known  to  exist,  before  the  fire  oc- 
curred. We  are  aware  that  it  would 
doubtless  have  been  possible,  by  human 
means,  to  have  so  vigilantly  guarded  these 
buildings  as  probably  to  have  prevented 
the  fire.  But  such  extreme  caution  in  re- 
mote country  towns  is  not  expected,  and 
if  practised,  as  a  general  thing,  must  very 
considerably  increase  charges  upon  guests, 
which  they  would  not  wish  to  incur,  ordi- 
narily, for  the  remote  and  possible  advan- 
tage which  might  accrue  to  them.  The 
question,  then,  is.  Whether  the  defendant 
is  liable  1  Do  the  authorities  justify  any 
such  conclusion "?  For  it  is  a  question  of 
authority  merely.  We  know  that  many 
eminent  judges  and  writers  upon  the  law 
have  considered  that  innkeepers  are  liable 
to  the  same  extent  as  connnon  carriers. 
It  may  be  true,  that  the  cases  arc  much 
alike  in  principle.  For  one,  I  should  not 
be  inclined  to  question  that.  But  if  the 
case  were  new,  it  is  certainly  not  free  from 
question  liow  far  any  court  would  feel  jus- 
tified in  holding  any  bailee  liable  for  a  loss 
like  the  present.  But  in  regard  to  com- 
mon carriers,  the  law  is  perfectly  well 
settled,  and  they  contract  with  the  full 
knowledge  of  the  extent  of  their  liability, 
and  demand  not  only  pay  for  the  freight, 
but  a  premium  for  the  insurance,  and  may 
re-insure  if  they  choose.  And  the  fact 
that  carriers  are  thus  liable  no  doubt  often 
induces  the  owners  to  omit  insurance. 
But,  unless  the  law  has  already  afiixed  the 
same  degree  of  extreme  lial)ility  to  the 
case  of  innkeepers,  we  know  of  no  grounds 
of  policv  merely  which  would  justify  a 

[652] 


court  in  so  holding."  After  a  careful  ex- 
amination of  the  authorities,  the  learned 
judge  concludes :  "  It  is  certain  no  well 
considered  case  has  held  the  innkeeper 
liable  in  circumstances  like  the  present. 
And  no  principle  of  reason,  or  policy,  or 
justice,  requires,  we  think,  any  such  result, 
and  the  English  law  is  certainly  settled 
otherwise."  See  also,  McDaniels  v.  Rob- 
inson, 26  Vt.  337  ;  Metcalf  v.  Hess,  14  111. 
129. 

(o)  Cross  V.  Andrews,  Cro.  Eliz.  622  ; 
Borradaile  v.  Hunter,  5  M.  &  Gr.  639. 

(p)  Calye's  case,  8  Co.  Rep.  32. 

(,j)  Ibid. 

(r)  Burgess  v.  Clements,  4  M.  &  S. 
306  ;  Armistead  v.  White,  6  E.  L.  &  E,' 
349.  This  last  was  an  action  on  the  case 
for  the  loss  of  money,  which  the  plaintiff 
brought  with  him  to  the  defendant's  inn. 
On  the  trial,  it  appeared  that  the  plaintiff 
was  a  commercial  traveller,  who  had  fre- 
quented the  defendant's  inn  for  twenty 
years.  On  the  evening  of  the  night  in 
which  the  money  was  stolen  from  the 
plaintifl"'s  driving  box,  he  had  opened  the 
box  and  counted  over  the  bank-notes  in 
the  presence  of  many  persons  in  the  com- 
mercial room,  as  he  had  also  done  on  sev- 
eral days  before,  and  after  replacing  them 
in  the  box  he  left  it  in  that  room  all  night, 
as  he  had  been  accustomed  to  do  ;  it  was 
the  custom  of  travellers  to  leave  their 
driving  boxes  in  the  commercial  room 
during  the  night.  The  box  was  so  in- 
securely fastened  that  it  might  be  opened 
without  a  key,  l)y  pushing  back  the  lock. 
The  learned  judge,  in  summing  up  to  the 
jury,  said  that  by  the  custom  of  England 
an  innkeeper  was  bound  to  keep  the  goods 
of  his  guest  safely  ;  but  that  a  guest  might, 
by  gross  negligence,  relieve  the  innkeeper 
from  his  liability  ;  and  that  if  tliey  thought 
tliat  a  prudent  man  would  have  taken  the 
box  with  liim  to  his  bedroom,  or  given  it 
into  the  express  custody  of  the  defendant, 
they  might  find  a  verdict  for  the  defend- 
ant ;  and  left  it  as  a  question  for  them 
whether  the  plaintiff  was  guilty  of  gross 
negligence   in    the    traveller's    room,   or 


CH.    XII.] 


BAILMENT. 


*626 


the  owner  retained  personally  and  exclusively  the  *custody  of 
his  goods,  (s)  It  is  not  enough  for  this,  however,  that  he  ex- 
ercised some  choice  as  to  the  room  where  they  should  be 
placed,  (t)  or  that  the  key  of  the  room  was  delivered  to  him.  [u) 


whether  they  were  satisfied  on  the  evidence 
that  the  jthuntilF  had  acted  witli  ordinary 
caution.  The  jury  found  a  verdict  for  the 
defendant.  And  a  rule  havin<^  been  ob- 
tained for  a  new  trial,  on  the  ground  of 
misdirection,  Lord  CamphcU,  C.  J.,  said  : 
"  I  am  of  ojjinion  tliat  the  rule  sliould  he 
dischar<;cd.  If  tiie  jud<:e  had  intimated 
that  it  was  the  duty  of  the  ])hiintiff  to 
witiuh\iw  the  box  from  the  commercial 
room,  and  carry  it  witii  him  into  Ids  hed- 
chainlier,  and  that,  not  having  done  so,  he 
liad  k)st  his  chiim  upon  tlie  dufeiKhint, 
that  wouhl  iiavc  been  a  misdirection.  But 
tliere  is  no  misdirection  in  wiiat  lie  has  re- 
ported to  us.  It  must  l)e  taken  that  he 
left  the  question  to  the  jury  under  all  the 
circumstances  of  the  case ;  and  it  is  not 
possiljlc  to  say,  a.s  a  matter  of  law,  that  a 
traveller  might  not  be  guilty  of  negligence, 
under  some  circumstances,  in  leaving  a 
bo.x  containing  money  in  the  commercial 
room  ;  and  in  this  case  I  think  that  there 
was  strong  evidence  from  which  the  jury 
were  justified  in  finding  tiiat  the  plaintiif 
was  guilty  of  gross  negligence.  Indeed,  it 
is  (piestionable  whether  the  direction  was 
not  too  favorable  for  the  plaintifi',  iiecausc 
it  is  <loubiful  whether,  in  order  to  relieve 
the  innkeeper  from  his  liability,  there 
must  be  crassit  >icr/li(jeiifia  in  the  guest." 

(s)  Fainwortli  ct  al.  assignees  of  Kir- 
ton,  a  bankrupt,  v.  Packwood,  1  Stark. 
249.  It  ai)])eai'cd  in  this  case  that  Kirton 
came  to  the  house  of  the  defendant,  an  inn- 
keeper, anil  in  the  course  of  three  or  four 
days  afterwards  a|)plied  to  the  defendant  for 
a  |n-ivate  room,  for  the  juirpose  of  di-posit- 
ing  goods  there,  and  e.\])(jsing  them  for 
sale ;  and  the  defendant  having  shown 
him  a  small  room,  which  he  approved  of, 
Kiiinn  the  next  day  took  ]K)Sscssion  of  it, 
and  the  key  was  delivered  to  him,  and 
was  kept  by  him  exclusively  for  several 
days  ;  but,  upon  the  defendant's  wife  rc- 
•  (uesting  to  place  some  parcels  in  the  same 
room,  Kirton  permitted  her  to  use  the 
key,  and  he  had  not  the  exclusive  use  of 
it,  and  other  parcels  were  deposited  in  the 
same  room.  Kirton  boarded  and  lodged 
in  the  house  for  almost  a  fortnight,  and 
from  time  to  time  introduced  his  custom- 
ers into  the  room.    A  short  time  before  he 

55* 


left  the  house  ho  discovered  that  a  pack- 
age was  missing,  which  made  the  sulject 
of  the  present  demand.  Le  Blam-,  J.,  in 
summing  up  to  the  jury,  said  :  "  If  a  guest 
take  upon  himself  the  exclusive  charge 
of  the  goods  which  he  brings  into  the 
house  of  an  innkeeper,  he  canjiot  after- 
wards charge  the  innkeeper  with  the  loss. 
The  only  cpiestion  in  this  case  is,  whether 
Kirton  did  not  take  ujion  himself  the  ex- 
clusive charge  of  his  goods,  to  the  ex- 
clusion of  every  other  person  ?  A  landlord 
is  not  bound  to  furnish  a  shop  to  every 
guest  who  comes  into  his  house ;  and  if  a 
guest  takes  exclusive  possession  of  a  room, 
which  he  uses  as  a  warehouse  or  shop,  he 
discharges  the  landlord  from  his  common 
law  liability.  The  question,  therefore,  for 
your  consideration,  is,  whether,  when  the 
goods  were  lost,  they  were  exclusively  in 
Kirton's  possession  !  It  is  admitted  that 
during  part  of  the  time  Kirton  kept  the 
key  ;  if  afterwards  the  defendant  took  the 
key  from  him,  the  goods  then  ceased  to  be 
under  his  exclusive  control,  and  the  de- 
fendant became  liable  for  their  safe  custody. 
The  oidy  question  is  whether,  at  the  time 
of  the  loss,  the  goods  were  in  the  exclusive 
possession  of  Kirton  ?  "  The  jury  found 
a  verdict  for  the  defendant.  Sec  also, 
Burgess  v.  Clements,  4  M.  &  S.  306.  The 
same  rule  holds  where  the  guest,  instead  of 
reposing  himself  upon  the  protection  of  the 
innkeeper,  intrusts  his  projK'rty  to  some 
one  else  in  the  house.  Sncidcr  v.  Gciss,  I 
Yeates,  34. 

(t)  Thus,  where  a  traveller  went  into  an 
inn,  and  desired  to  have  his  luggage  taken 
into  the  commercial  room,  to  which  he  re- 
sorted, from  whence  it  was  stolen,  the 
court  /('/(/  that  the  innkeeper  was  respon- 
sible, although  he  proved  that,  according  to 
the  usind  practice  of  his  house,  the  lug- 
gage wouhl  have  been  deposited  in  the 
guest's  bedroom,  and  not  in  the  commer- 
cial room,  if  no  order  had  been  gi\  en  re- 
specting it.  Richmond  v.  Smith,  S  IJ.  & 
Cr.  9.  Sec  further,  Kp[(S  v.  Hinds,  27 
Miss.  6.'>7. 

(»()  Anonymous,  Moore,  78,  ])l.  207; 
Calve's  case,  8  Co.  Kep.  32.  In  the  c:isc 
of  Burgess  v.  Clcinent.s,  4  M.  &  S.  306, 
Lord  Ellcnhorou()h  savs  :  "  I  agree  that  if 

'[653] 


627* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


The  owner  may  still  recover,  even  if  he  does  not  use  the  key, 
but  leaves  the  door  unlocked,  (v)  But  an  innkeeper  may  re- 
quire of  his  guest  to  place  his  goods  in  a  particular  place,  and 
under  lock  and  key,  or  he  will  not  be  answerable.  And  if  these 
precautions  are  reasonable,  and  the  guest  neglects  them,  *and 
exposes  the  goods  to  a  greater  hazard,  the  innkeeper  is  exoner- 
ated, {vj) 

No  especial  delivery  or  direction  of  the  goods  to  the  inn- 
keeper is  necessary  to  charge  him  ;  for  it  is  enough  if  they  are 
fairly,  according  to  common  practice,  within  his  custody,  {x) 

It  is  said  that  if  the  innkeeper  refuses  to  receive  the  party  as 
a  guest,  he  is  not  liable  for  any  loss  of  his  goods.  But  he  can- 
not so  refuse,  unless  his  house  is  full,  and  he  is  actually  unable 
to  receive  him.  (y)  And  if  on  false  pretences  he  refuses,  he  is 
liable  to  an  action,  (c)  And  it  is  said  that  he  may  even  be  in- 
dicted therefor,  (a) 

An  innkeeper  may  refuse  to  receive  a  disorderly  guest,  or  re- 
quire him  to  leave  his  house,  (b)  He  is  not  bound  to  examine 
into  the  reasonableness  of  the  guest's  requirements,  if  the  guest 
be  possessed  of  his  reason,  and  is  not  a  minor,  (c)  And  while 
travellers  are  entitled  to  proper  accommodation,  they  have  no 


an  innkeeper  oives  the  key  of  the  chamber 
to  his  y;uest,  this  will  not  dispense  with  his 
own  cure,  or  discharge  him  from  liis  gen- 
eral responsibility  as  innkeeper.  Bnt  if 
there  be  evidence'  that  the  guest  accejttcd 
the  key,  and  took  on  himself  the  care  of 
liis  goods,  surely  it  is  for  the  jury  to  de- 
termine whether  this  evidence  of  his  re- 
ceiving the  key  proves  that  he  did  it  animo 
castodimdi,  and  with  a  purpose  of  exempt- 
ing the  innkeeper,  or  whether  he  took  it 
merely,  because  the  landlord  forced  it  on 
him,  or  for  the  sake  of  securing  greater 
privacy,  in  order  to  prevent  persons  from 
intruding  themselves  into  his  room." 

(i')  Calye's  case,  8  Co.  Rep.  32. 

\w)  Sanders  v.  Spencer,  Dyer,  2G6  b  ; 
Calye's  case,  8  Co.  Hep.  32. 

(.r)  McDonald  v.  Edgerton,  5  Barb. 
560  ;  Bennet  v.  Mellor,  5'^T.  R.  273.  Nor 
is  it  material  whether  the  property  intrust- 
ed to  the  innkeeper  consists  of  goods  or  of 
money.  Kent  v.  Shuckard,  2  B.  &  Ad. 
803.  Nor  is  it  limited  to  any  particular 
amount.    Berkshire  Woollen  Co.  v.  Proc- 

[654] 


tor,  .5  Law  Rep.  N.  S.  378,  S.  C.  7  Cush. 
417.  See  the  facts  of  this  case  stated  post, 
p.  G28,  n.  (/).  Fletcher,  J.,  in  reference  to 
tills  jioint,  says  :  "  The  responsibility  of 
innkeepers  for  the  safety  of  the  goods  and 
chattels  and  money  of  their  guests,  is 
founded  on  the  gi'cat  principle  of  public 
utility,  and  is  not  restricted  to  any  particu- 
lar or  limited  amount The  prin- 
ciple for  vvliich  the  defendants  contend, 
that  innkeepers  are  liable  for  such  sums 
only  as  are  necessary  and  designed  for  the 
ordiiKiry  travelling  expenses  of  the  guest, 
is  unsui>i)orted  by  authority,  and  wholly 
inconsistent  with  the  principle  upon  which 
the  lialiiiity  of  an  iimkeeper  rests." 

(y)  Hawthorn  v.  Hammond,  1  Car.  & 
Kir.  404  ;  Kirkman  v.  Shawcross,  G  T. 
R.  14. 

(z)  White's  case,  Dyer,  138  b,  1  Rol. 
Abr.  3,  (F.)  pi.  1. 

(«)  Rexr.  Ivens,  7  C.  &P.  213. 

\b)  Howell  V.  Jackson,  G  C.  &  P.  723  ; 
Rex  V.  Ivens,  7  C.  &  P.  213. 

(c)  Proctor  v.  Nicholson,  7   C.  &  P.  G7. 


CH.  xir.] 


BAILMENT. 


^628 


right  to  select  a  particular  apartment,  or  use  it  for  purposes 
other  than  those  for  which  it  is  designed.  ((/)  But  an  innkeeper 
has  no  right  to  prevent  the  driver  of  a  line  that  is  a  rival  to  one 
which  favors  the  innkeeper,  from  entering  his  house  for  lawful 
and  reasonable  purposes,  (e) 

Nothing  need  be,  nor  usually  is,  paid  for  the  goods  sepa- 
rately. (/)  The  compensation  paid  by  the  owner  for  his  enter- 
tainment covers  the  care  of  the  property.  The  custody  of  the 
goods  is  accessory  to  the  principal  contract. 

Jt  is  sometimes  difficult  to  know  who  is  the  guest  of  an  inn- 
keeper. (^'•)  In  this  country  it  is  very  common  for  persons  *to 
become  boarders  at  an  inn ;  and  then  they  cease  to  be  guests 
in  such  a  sense  as  to  hold  the  innkeeper  to  his  peculiar  liability, 
and,  on  the  other  hand,  give  him  his  lien.  (//)     We  take  the  dis- 


(d)  Fell  V.  Knight,  8  M.  &  W.  269. 

(e)  Aliirkliani   c.    Brown,  8  N.  Hamp. 
523. 

(/)  Lane  v.  Cotton,  12  Mod.  472,  487. 

(</)  I'lirclmsing  liquor  at  an  inn  has  been 
held  sufficient  to  constitute  one  a  guest. 
Bcnnet  v.  Mellor,  5  T.  K.  273.  lu  this 
case  the  i)laintirt''s  servant  had  taken  some 
goods  to  market  at  Manchester,  and  not 
being  able  to  dispose  of  them,  went  with 
tliem  to  the  defendant's  inn,  and  asked  the 
defendant's  wife  if  he  could  leave  the 
goods  there  till  the  following  week,  and 
she  said  she  could  not  tell,  for  they  were 
very  full  of  parcels.  The  plaintift's  ser- 
vant then  sat  down  in  the  inn,  had  some 
liquor,  and  put  the  goods  on  the  floor  im- 
mediately behind  him,  and  when  he  got 
up,  after  sitting  there  a  little  while,  the 
goods  were  missing.  There  was  a  verdict 
for  the  plaintiff  for  the  value  of  the  goods  ; 
and,  on  a  motion  for  a  new  trial,  the 
Court  of  King's  Hench  sustained  the  ver- 
dict, deciding  that  the  ])laintitf 's  servant 
was  U)  be  deemed  the  guest  of  the  defend- 
ant. See  also  McDonald  r.  Edgerton,  .5 
Barb.  .")li()  ;  Washburn  v.  .Jones,  14  Barb. 
193.  Nor  is  it  necessary  that  the  owner  of 
the  goods  be  himself  a  guest,  in  order  to 
entitle  him  to  an  action  against  an  inn- 
kee|)er.  If  his  servant  or  friend  to  whom 
he  has  intiTisted  the  possession  of  the 
goods  is  a  guest,  it  is  sufficient.  Mason 
)'.  Thompson,  9  Pick.  280 ;  Towson  i'. 
Ilavre-de-tirace  Bank,  G  liar.  &  Johns. 
47  ;  Berkshire  Woollen  Co.  v.  Proctor,  5 
Law  Kcii.  N.  S.  378,  S.  C.  7  Cush.  417  ; 
Wiishburn  v.  Jones,  14  Barb.  193. 


(/()  Manning  v.  Wells,  9  Humph.  746; 
Ewart  v.  Stark,  8  Kich.  Law,  423.  The 
liability  of  boarding-house  keepers  for  the 
goods  of  their  guests,  was  much  discussed 
in  the  late  case  of  Dansey  v.  Bichardson, 
25  E.  L.  &  E.  76.  The  declaration 
stated,  that  the  plaintiff  had  become  a 
guest  in  the  boarding-ho>ise  of  the  defend- 
ant upon  the  terms,  amongst  others,  that 
the  defendant  would  take  due  and  reason- 
able care  of  the  goods  of  the  ]3laintirt' whilst 
they  were  in  the  house  of  the  defendant, 
for  hire  and  reward,  ami  it  then  became 
the  duty  of  the  defendant,  by  herself  and 
servants,  to  take  such  care  of  the  plaintift"'s 
goods  whilst  a  guest  in  the  defendant's 
house.  Breach  of  the  alleged  duty,  and  a 
loss  of  the  plaiiitiff 's  goods,  by  the  neglect 
of  the  defciKhuit  rnd  her  servants.  On 
the  trial  it  ajipeared  that  the  jilaintiff  had 
been  received  as  a  guest  in  the  defendant's 
boarding-house,  at  a  weekly  payment, 
upon  the  terms  of  being  provided  with 
hoard  and  lodging  and  attemlauce.  The 
l)lainlitf  being  about  to  leave  the  house, 
sent  one  of  the  defendant's  ."servants  to 
])urchase  some  biscuits,  and  he  left  the 
front  door  ajar,  and  whilst  he  was  absent 
on  the  errand  a  thief  entei-cd  the  liou-e  and 
stole  a  box  of  the  plaintiff's  from  the  hall. 
The  learned  jmlge  diivcte<l  the  jury  that 
the  defendant  was  not  bouml  to  take  more 
can-  of  the  house  and  the  tilings  in  ii  than 
a  pnulent  owner  would  take,  and  that  she 
was  not  liable  if  there  were  no  negli^-cncc 
on  her  part  in  hiring  and  kcejiing  the 
servant ;  and  he  left  it  to  the  Jury  to  say 
whether,  sup|>osing  the  loss  to  have  been 

[655] 


628- 


THE    LAW    OF   CONTRACTS. 


[book  III. 


tinctioti  between  the  guest  and  the  boarder  to  be  this.  The 
guest  comes  without  any  bargain  for  time,  remains  without 
one,  and  may  go  wlien  he  pleases,  paying  only  for  the  actual 
entertainment  which  he  receives ;  and  it  is  not  enough  to  make 
a  boarder,  and  not  a  guest,  that  he  has  staid  a  long  time  in  the 
inn,  in  this  way.  This  we  hold  to  be  the  general  rule  ;  but 
there  may  be  eome  difficulty  in  the  application  of  it;  for,  on 
the  one  hand,  the  special  contract  between  the  boarder  and  the 
master  of  the  house  may  be  express  or  implied,  and  a  length  of 
residence,  upon  certain  terms,  might  certainly  be  one  circum- 
stance, which,  with  others,  might  lead  to  the  inference  of  such 
a  contract.  On  the  other  hand,  if  a  traveller  on  a  journey  stops 
at  an  inn  for  three  days,  and  makes  a  bargain  for  that  time,  it 
would  be  difficult  to  say  that  he  thereby  ceased  to  be  a  guest, 
and  that  the  innkeeper  was  exonerated  from  liability  as  such.  (?") 
This  question  must  always  be  one  of  mixed  law  and  fact. 


occasioned  by  the  negligence  of  the  ser- 
vant in  leaving  the  door  ajar,  there  was 
any  negligence  on  the  part  of  the  defend- 
ant in  hiring  or  keeping  the  servant. 
Hdd,  by  the  court,  that  at  least  it  was  the 
duty  of  the  defendant  to  take  sucli  care  of 
her  house  and  tlie  things  of  lier  guests  in  it 
as  every  prudent  liouseholder  would  take  ; 
and,  by  Lord  Campbell,  C.  J.,  and  Cole- 
ridge, J.,  that  she  was  bound  not  merely  to 
bo  careful  in  the  choice  of  her  servants,  but 
absolutely  to  supply  the  plaintiff  witii  cer- 
tain things,  and  to  take  due  and  reason- 
able care  of  Iicr  goods  ;  and  that  if  there 
had  been  a  want  of  such  care  as  regarded 
the  ])laiiuiff's  box,  it  was  immaterial 
whether  the  negligent  act  was  tlmt  of  the 
defendant  or  her  servant,  though  every  care 
had  been  taken  b}^  the  defendant  in  em- 
ploying such  servant ;  and,  consequently, 
that  the  dh-cction  of  the  learned  judge  was 
not  correct;  but,  by  WiijhtiiKtn,  J.  and 
Eric,  J.,  that  the  duty  of  tlie  defendant  did 
not  require  that  she  should  do  more  tlnm 
take  all  requisite  care  to  employ  and  keep 
none  but  trustworthy  servants ;  and  tliat  if 
that  had  been  done,  the  defendant  was  not 
lialde  fur  tiie  single  act  of  negligence  on 
the  part  of  the  servant  in  leaving  the  door 
open  ;  and,  therefore,  that  the  direction  at 
the  trial  was  right." 

{{)  This  question  has  been  recently  dis- 

[G56] 


cussed  in  the  Supreme  Judicial  Court  of 
Massachusetts,  in  the  case  of  the  Berk- 
shire Woollen  Co.  v.  Proctor  et  al.  5  Law 
Kep.  N.  S.  378,  S.  C.  7  Cush.  417.  Li 
that  case,  one  Russell,  the  agent  and  ser- 
vant of  the  plaintiff,  a  corporation,  came  to 
Boston  with  a  large  number  of  witnesses, 
to  take  charge  of  a  lawsuit  in  lielialf  of 
the  corporation,  Ijringing  with  him  one 
thousand  dollars  to  defray  the  expenses  of 
the  suit,  and  put  up  at  defendants'  inn  as 
a  guest,  with  several  of  the  witnesses,  for 
whose  board  he  promised  to  be  responsible 
to  the  defendants,  but  at  an  agreed  price 
for  board  by  the  week,  —  the  price  to  be 
greater  if  they  did  not  stay  a  week,  —  and 
under  said  agreement  staid  at  defendants' 
inn  for  eighteen  days.  It  was  held  that 
the  relation  of  landlord  and  guest  was 
established  instantly  upon  his  arrival  at 
the  iim,  and  his  reception  as  a  guest,  and 
was  not  affected  by  liis  staying  for  a 
lofiger  or  shorter  time,  if  lie  retained  his 
character  as  a  traveller,  and  the  fact  that 
there  was  an  agreed  price  for  board  would 
not  take  away  his  character  as  a  traveller 
and  guest.  And  Fletcher,  J.,  said  :  "It  is 
maintained  for  the  defendants  that  Russell 
was  not  a  guest,  in  the  sense  of  the  law, 
but  a  boarder.  But  Russell  surely  came 
to  the  defendant's  inn  as  a  wayfaring  man 
and  a  traveller,  and  the  defendants  received 


en.  XII.] 


BAILMENT. 


629-*630 


Another  question  has  arisen,  whether  he  is  a  guest  who  only 
sends  or  carries  his  property  to  an  inn,  and  places  it  in  the  cus- 
tody of  the  innkeeper,  but  does  not  go  there  himself  to  eat  or  to 
lodge.  Upon  this  question  the  authorities  are  directly  antago- 
nistic ;  (/)  but  we  think  that  such  person  is  not  a  guest,  and 
that  the  innkeeper  is  then  only  a  depositary  for  compensation, 
and  liable  as  such.  We  think  the  test  is  this.  Is  he  bound  to 
receive  and  to  keep  goods  so  sent  or  brought  to  him  ?  He  is 
certainly  bound  to  receive  them  — if  not  unreasonable  in  quan- 
tity, or  dangerous  in  quality  —  if  the  guest  comes  and  stays 
\\ith  them  ;  and  then  insures  them  as  above  stated.  But  we 
think  he  may  refuse  to  take  charge  of  them  if  the  owner  does 
not  accompany  them  ;  for  the  custody  of  the  goods,  as  we  have 
already  said,  is  merely  accessory  to  the  principal  contract.  He 
may  refuse  them,  and  *therefore  if  he  receives  them  it  is  not  as 
an  innkeeper,  or  at  least  not  so  as  to  subject  him  to  the  peculiar 
liability  of  an  innkeeper.  It  is  quite  certain  that  he  is  not  an- 
swerable for  goods  left  by  the  owner,  for  which  he  is  to  receive 
no  compensation,  (k)     A  guest  undoubtedly  may  leave  an  inn 


him,  .as  such  wayfaiing  man  and  traveller, 
as  a  fruest  at  their  inn.  Russell  heiiii^ 
thus  refei\e(l  \>y  the  defendants  as  tiieir 
guest  at  their  inn,  the  relation,  with  all  the 
ri;;hts  and  liahilities  of  the  relation  of 
landlord  and  truest,  was  instantly  estab- 
lished between  them.  The  len<rtli  of  time 
that  a  man  is  at  an  inn  makes  no  differ- 
cnee,  whether  he  stays  a  week  or  a  month, 
or  lonjrer,  so  that  always  tiioui;h  not 
strietly  tninsii^is,  he  retains  his  eharaeter 
as  a  "traveller.  Story  on  Bailni.  §  477. 
The  sim])le  fact  that  Kussell  made  an 
agreement,  as  to  the  price  to  be  i)aid  by 
him  by  the  week,  would  not,  upon  any 
princi|)le  of  law  or  reason,  take  away  his 
character  as  a  traveller  and  a  guest.  A 
guest  fi^r  a  single  night  might  make  a 
special  cf)ntract  as  to  the  price  to  Ijc  paid 
for  his  lodging,  and  whether  it  were  more 
or  less  than  the  usual  price  would  not  af- 
fect his  character  as  a  guest.  The  char- 
acter of  a  guest  does  not  depend  ujion  the 
payment  of  any  j)articular  ])ricc,  but  ujion 
Other  facts.  If  an  inhabitant  of  a  jilacc 
makes  a  special  contract  with  an  innkeci)er 
there,  for  i)oard  at  his  inn,  he  is  a  boarder, 
and  not  a  traveller  or  a  guest,  in  the  sense 
of  the  law.     But  Russell  was  a  traveller, 


and  put  up  at  defendants'  inn  as  a  guest, 
was  received  by  the  defendants  as  a  guest, 
and  was,  in  the  sense  of  the  law,  and  in 
eveiy  sense,  a  guest." 

(j)  This  question  was  decided  in  the 
affirmative  by  a  majority  of  the  judges, 
against  the  opinion  of  Lord  JIoll,  in  Yorke 
V.  Grenaugh,  2  Ld.  Raym.  8(56,  S.  C. 
nom.  York  v.  Grindstone,  1  Salk.  388. 
And  on  the  authority  of  this  case,  it  was 
decided  the  same  way  in  Mason  v.  Thomp- 
son, 9  Pick.  280.  'See  also  the  case  of 
Reet  V.  McGraw,  23  ^Vend.  653,  which 
contains  a  dictum  by  Xcl.wn,  C.  J.,  to  the 
same  effect ;  and  Berkshire  Woollen  Co. 
r.  Proctor,  5  Law  Rep.  N.  S.  378,  S.  C. 
7  Cush.417,  in  which  the  point  is  noticed, 
but  no  opinion  given.  On  the  other  hand, 
in  Grinnell  «-.  Cook,  3  Hill,  4S.j,  the  Su- 
preme Court  of  New  York,  after  much 
consideration,  decided  the  same  question 
the  other  way,  conformably  to  the  opinion 
of  Lord  Jloll.  See  also  Thickstun  r. 
Howard,  8  Blaekf.  535,  to  the  same  et^'ect. 
See  also  Smith  v.  Dearlovc,  jwsf,  p.  632, 
n.  (u). 

(k)  "iorke  v.  Grenaugh,  2  Ld.  Itayra. 
866,  S.  C.  nom.  York  r.  Grindstone  I 
Salk.  388. 

[G57] 


I 


631* 


THE   LAW   OF    CONTRACTS. 


[book  III. 


for  a  time,  and  still  leave  his  property  under  the  safeguard  of 
the  landlord's  liability.  And  it  is  impossible  to  say  precisely 
how  long  he  may  so  leave  it,  without  ceasing  to  be  a  guest. 
On  the  other  hand,  it  must  be  certain  that  one  cannot  lodge  for 
a  day  or  two  at  an  inn,  and  then  depart,  leaving  valuable  prop- 
erty for  an  indefinite  period,  and  the  landlord  be  subjected,  as 
long  as  the  owner  pleases,  to  the  peculiar  liability  of  an  inn- 
keeper. In  such  case  he  would  be  like  a  warehouse-man,  or 
other  depositary,  liable  only  for  his  negligence.  (/) 

*Innkeepers  are  liable  only  for  goods  brought  within  the  inn, 
or   otherwise  placed   distinctly  within  their  custody,  in   some 


(Z)  In  the  case  of  Gelley  v.  Clerk,  Cro. 
Jac.  188,  it  appeared  tliat  the  phiintiff, 
being  a  guest  at  the  liouse  of  the  defendant, 
who  was  an  innkeeper  at  Uxbridge,  went 
from  thenee  to  London,  and  left  his  goods 
with  the  defendant,  saying  that  he  would 
return  within  two  or  three  days.  He  re- 
turned accordingly  within  the  three  days, 
and  in  the  mean  time  his  goods  had  been 
stolen.  Upon  these  facts,  Foster,  Ser- 
geant, for  the  plaintiff,  contended  that  the 
innkeeper  should  be  charged.  "For 
when  the  plaintiff  was  a  guest,  and  left 
his  goods  for  so  short  a  time,  and  prom- 
ised to  return  so  soon,  and  returned  ac- 
cordingly, he  is  all  that  time  accounted  as 
a  guest,  and  shall  he  said  to  be  a  guest, 
to  charge  the  defendant  as  an  innkeeper, 
according  to  the  custom  of  the  realm. 
And  it  was  adjudged  in  the  case  of  Sir 
Edwyn  Sands,  where  he  came  to  an  inn 
and  lodged,  and  went  out  thereof  in  the 
morning  and  left  his  cloak-bag  there,  in- 
tending to  return  at  night,  and  at  night 
returned  accordingly,  and  in  the  interim 
his  cloak-bag  was  stolen,  that  he  might 
have  his  remedy  by  an  action  grounded 
upon  the  common  custom  :  so  here,"  &c. 
Sed  von  allocatur ;  for  per  Williams,  J.  : 
"  If  one  comes  to  an  inn  and  leave  his 
goods  and  horses,  and  go  into  the  town, 
and  after  returns,  and  in  the  interim  his 
goods  are  stolen,  no  doubt  but  he  is  a 
guest,  and  shall  have  remedy,  and  so  was 
Sir  Edwyn  Sands's  case  ;  for  his  absence  in 
part  of  the  day  is  not  material,  but  he  is 
always  reputed  as  a  guest.  So  where  one 
leaves  his  horse  at  an  inn,  to  stand  there 
b}^  agreement  at  livery,  although  neither 
himself  nor  any  of  his  servants  lodge  there, 
he  is  reputed  a  guest  for  that  purpose,  and 
the  innkeeper  hath  a  valuable  considera- 

[G58] 


tion  ;  and  if  that  horse  be  stolen,  he  is 
chargeable  with  an  action  upon  the  cus- 
tom of  the  realm.  But,  as  in  the  case  at 
the  bar,  where  he  leaves  goods  to  keep, 
whereof  the  defendant  is  not  to  have  any 
benefit,  and  goes  from  thence  fqr  two  or 
three  days,  although  he  saith  he  will  re- 
turn, yet  he  is  at  his  liberty,  and  therefore 
he  is  not  a  guest  during  that  time."  The 
distinctions  taken  in  this  case  have  been 
recognized  substantially  in  several  subse- 
quent cases.  See  Grinnell  v.  Cook,  ,3 
Hill,  485  ;  McDonald  v.  Edgerton,  5  Barb. 
560  ;  Towson  v.  Havre-de- Grace  Bank,  6 
H.  &  Johns.  47.  See,  however,  ante,  p. 
629,  n.  (  /),  that  what  Williams,  J.,  says 
in  regard  to  leaving  a  horse  at  an  inn 
must  be  confined  to  those  cases  where  the 
owner  is  himself  a  guest  at  the  time  of  so 
leaving  the  horse.  In  Wintermute  v. 
Clarke,  5  Sandf.  242,  the  plaintiffs  son 
went  to  the  tavern  of  the  defendant  with 
his  baggage,  which  he  left  there.  The 
next  morning  he  paid  his  bill  for  his  lodg- 
ings, leaving,  as  was  contended,  his  trunk 
4xt  the  inn.  Upon  the  testimony  the  judge 
charged  the  jury  that  if  they  believed  the 
trunk  had  lieen  taken  away  by  any  other 
person  than  the  plaintiffs  son,  even  after 
the  plaintiff  had  paid  his  bill,  the  defend- 
ant was  liable.  The  verdict  of  the  jury 
for  the  plaintiff  was  set  aside,  and  a  new 
trial  granted,  on  tlie  ground  that  after  a 
guest  pays  his  bill,  and  leaves  the  house, 
it  is  at  his  own  peril  that  he  leaves  his 
propert}'  behind  him,  and  that  the  inn- 
keeper has  a  right  to  believe  that  he  takes 
it  with  him,  and  is  therefore  no  longer 
responsil)le  for  it,  unless  it  is  specially 
committed  to  his  charge,  and  then  only  as 
ordinary  bailee. 


CH.   XII.] 


BAILMENT. 


-631 


customary  and  reasonable  way.  (m)  Where  a  horse  or  carriage 
is  put  in  an  open  shed,  or  the  horse  put  for  the  night  into  a  pas- 
ture by  the  innkeeper,  without  the  consent  of  the  owner,  he  is 
still  liable ;  (n)  but  it  is  otherwise  if  it  is  done  with  the  owner's 
consent,  or  by  his  directions  ;  (o)  and  where  this  is  usually  done, 
and  the  owner  knows  the  custom,  and  gives  no  particular  direc- 
tion, it  might  be  presumed  that  he  consented,  and  took  the  risk 
upon  himself,  (p) 


(m)  Simon  v.  Miller,  7  Louis.  Ann.  360; 
Albin  V.  Presby,  8  N.  H.  408,  cited  jmst, 
n.  (p).  But  in  Clute  r.  Wiggins,  14 
Johns.  175,  where  a  sleigh  loaded  with 
bags  of  wheat  and  barley,  was  put  by  the 
guest  into  an  outhouse  appurtenant  to  the 
inn,  where  loads  of  that  description  were 
usually  received,  and  the  grain  was  stolen 
during  the  night,  the  innkeeper  was  held 
responsible  for  the  loss,  the  court  holding 
that  the  grain  was  infra  hospiliiim. 

(n)  Calye's  case,  8  Co.  Kep.  32;  Piper 
V.  Manny,  21  Wend.  282 ;  Mason  v. 
Thompson,  9  Pick.  280.  And  where  an 
innkeeper  on  the  day  of  a  fair,  upon  being 
asked  by  a  traveller,  then  driving  a  gig  of 
which  lie  was  owner,  "  whether  lie  had 
room  for  the  horse  ?  "  put  the  horse  into 
the  stable  of  the  inn,  received  the  traveller 
with  some  goods  into  the  inn,  and  ]ilaccd 
the  gig  in  the  open  street  without  the  inn 
yard,  where  he  was  accustomed  to  place 
the  carriages  of  his  guests  on  fair  days  ; 
and  the  gig  was  stolen  from  tiience ;  the 
court  held  tluit  the  innkeeper  was  answer- 
able. Jones  V.  Tvler,  1  A.  &  E.  522,  3 
Nev.  &Man.  576.' 

(o)  Calyo's  case,  8  Co.  Kep.  .32.  In 
Ilawley  v.  Smith,  25  Wend.  042,  it  ap- 
peared that  the  defendant  was  an  inn- 
keeper, and  that  the  ])laintift'  stopped  at 
his  house  with  a  drove  of  700  sheep,  which, 
witii  his  knowledge,  were  turned  out  to 
l)asture.  On  the  following  day  several  of 
the  sheep  died,  and  otiicrs  sickened,  in 
conse([ucnce  of  liaving  eaten  Jdurcl ,  which 
they  found  in  the  pasture.  A  verdict 
having  lieen  found  for  the  jilaintiti",  upon 
these  facts,  under  the  direction  of  tiio 
judge,  tiic  Supreme  Court  granted  a  new 
trial  for  a  misdirection.  And  Nelson,  C. 
J.,  said  :  "  I  am  of  opinion  this  case  falls 
within  an  exception  laid  down  in  Calye's 
case,  8  Co.  Kep.  32,  to  tlie  general  rule  in 
respect  to  the  liability  of  an  innkeeper, 
which  has  been  followed  ever  since.  It 
was  there  resolved,  that  if  the  guest  de- 


liver his  horse  to  the  hostler,  and  request 
that  he  be  put  to  pasture,  which  is  accord- 
ingly done,  and  the  horse  is  stolen,  the 
innholder  is  not  responsible,  not  being,  in 
the  common-law  sense  of  the  term,  infra 
hospitium.  He  is  not  to  be  regarded  as  an 
insurer  for  goods  without  the  inn,  that  is 
for  goods  not  within  the  curtilage.  The 
sheep  were  put  to  pasture  under  the  di- 
rection of  the  guest,  which  fact  should 
have  been  regarded  by  the  learned  judge 
as  bringing  the  case  within  the  above  ex- 
ception. It  would  then  have  turned  upon 
the  riuestion  of  negligence,  which  should 
have  been  put  to  the  jury  upon  the  facts 
disclosed." 

[p)  Thus  in  Albin  v.  Presby,  8  N.  H. 
408,  where  a  traveller,  after  arriving  at  an 
inn,  placed  his  loaded  wagon  under  an 
ojien  shed,  near  the  higiiway,  and  made 
no  request  to  tlie  innkeeper  to  take  the 
custody  of  it,  and  goods  were  stolen  from 
it  in  the  night ;  it  was  held  that  the  inn- 
keeper was  not  liable  for  the  loss,  notwith- 
standing it  was  usual  to  place  loaded 
teams  in  that  place.  And  Parher,  J., 
said  :  "  The  present  case  finds,  to  be  sure, 
that  the  wagon  was  put  in  the  place  where 
loaded  wagons  of  guests  were  usually 
placed,  when  they  were  put  under  shelter; 
but  they  were  douI)tless  usually  so  placed, 
with  the  knowledge  and  assent  of  the 
guests.  It  is  well  known  that  loaded 
wagons  are  often  left  within  the  limits  of 
the  iiighway  near  the  inn,  and  are  usually 
not  jilaced  in  any  building  or  inclosed 
yard,  unless  there  is  a  special  request  for 
it.  Pew  inns  in  the  country  have  suitable 
accommodations  for  securing  property  of 
this  character  in  such  a  manner.  In  the 
present  case,  there  is  not  only  knowledge 
and  assent,  but  the  plaintilf  himself  places 
the  wagon  in  that  situation.  lie  of  course 
could  not  liave  expected  that  it  would  be 
removed  to  another  place  —  he  made  no 
recjuest  to  that  effect  —  and  he  must  have 
known  that  the  goods  could  not  be  secured 

[659] 


632-633* 


THE    LAW    OF    CONTRACTS. 


[book    III. 


An  innkeeper  has  a  lien  on  the  property  of  the  guest,  (not  on 
his  person,)  (g)  for  the  price  of  his  entertainment,  (r)  He  has 
this  lien  on  a  horse  even  if  it  be  stolen,  and  the  thief  brings  it 
to  him.  (s)  But  it  is  not  quite  certain,  on  the  authorities,  how 
far  this  lien  of  the  innkeeper  extends,  (t)  Upon  the  whole,  it 
seems  that  he  has  it  on  all  the  goods  of  the  guest  which  he  has 
received,  excepting  only  those  actually  worn  by  him  on  his  per- 
son, and  that  this  lien  covers  the  whole  amount  due  for  the 
entertainment  of  the  guest,  or  his  servant  or  horse,  (u) 

LOCATIO    OPERIS    MERCIUM    VEIIENDARUM.       The  OWUCr  of  gOods 

may  cause  them  to  be  carried  by  a  private  carrier  gratuitously, 
or  by  a  private  carrier  for  hire,  or  by  a  common  carrier.  Any 
one  who  carries  goods  for  another  is  a  private  *  carrier,  unless 
he  comes  within  the  definition  of  the  common  carrier  which  we 
shall  give  presently.  If  the  private  carrier  carries  them  gratui- 
tously, he  is  a  mandatary,  and  is  bound  only  to  slight  diligence. 


from  thieves  in  that  place,  except  by  a 
watch.  Assuredly  he  could  not  have  ex- 
pected they  would  be  guarded  by  the  de- 
fendant, in  that  manner ;  and  under  such 
circumstances,  ought  not  to  have  expected 
that  the  defendant  was  to  be-responsihle 
for  a  loss.  And  as  the  inns  in  this  coun- 
try are  not  genei-ally  furnished  with  ac- 
commodations for  the  protection  of  the 
carriages  of  all  guests  who  may  lodge  at 
the  inn,  and  the  custom  of  permitting  them 
to  remain  in  open  yards,  where  they  can- 
not be  protected  but  by  a  guard,  is  so  uni- 
versal and  well  known,  we  tliink  it  a 
sound  position  that  the  assent  of  the  trav- 
eller is  to  be  presumed  in  such  case,  unless 
he  makes  a  special  request  that  his  car- 
riage sliould  be  put  in  a  safe  place  ;  and 
that  such  open  yard  is  not  to  be  deemed  a 
part  of  the  inn,  so  as  to  charge  the  inn- 
keeper for  the  loss,  unless  he  neglects, 
upon  request,  to  put  the  goods  in  a  place 
of  safety,  which  he  is  bound  to  do,  on  such 
request,  if  he  have  any  accommodations 
which  cnalile  liim  to  comply  with  it."  See 
Clute  V.  Wiggins,  14  Johns.  175,  cited 
a7ite,  p.  631,  n.  (m). 

iq)  Sunbolf  r.  Alford,  3  M.  &  W.  248. 

(/•)  Robinson  r.  Walter,  Topli.  127,  3 
Bulst.  2G9  ;  Johnson  r.  Hill,  3  Stark.  172  ; 
Grinnell  v.  Cook,  3  Hill,  48.5. 

(s)  Jones  V.  Thurloe,  8  Mod.  172.  And 
where  the  guest  brines  to  the  inn  a  car- 

L660]    ^ 


riage  not  his  own,  for  the  standing  room 
of  which  the  innkeeper  acquires  a  claim, 
for  this  he  has  a  lien,  and  may  defend 
against  an  action  of  trover  brought  by  the 
owner  of  the  carriage.  Turrill  v.  Craw 
ley,  13  Q.  B.  197. 

{t)  In  Eac.  Abr.  tit.  Inns  and  Innkeep- 
ers, (D.)  it  is  said  :  "If  a  horse  be  com- 
mitted to  an  innkeeper,  it  may  be  detained 
for  the  meat  of  the  horse,  but  not  for  the 
meat  of  the  guest ;  for  the  chattels  arc 
only  in  the  custody  of  the  law  for  the  debt 
that  arises  from  the  thing  itself,  and  not 
for  any  other  debt  due  from  the  same 
party  ;  for  the  law  is  open  to  all  such 
debts,  and  doth  not  admit  jirivate  persons 
to  make  reprisals."  Sec  also,  Kosse  v. 
Bramsteed,  2  Rol.  Rep.  438. 

(u)  See  Thompson  v.  Lacy,  3  B.  & 
Aid.  283  ;  Proctor  v.  Nicholson,  7  C.  & 
P.  67.  But  wliei-e  an  innkeeper  receives 
horses  and  a  carriage  to  stand  at  livery, 
the  circumstance  of  the  owner,  at  a  sut)- 
sequent  period,  taking  occasional  refresh- 
ment at  the  inn,  or  sending  a  friend  to  be 
lodged  there  at  his  cluirge,  will  not  entitle 
the  innkeeper  to  a  lien  in  respect  of  any 
part  of  his  demand.  For  the  right  of  lien 
of  an  innkeeper,  say  the  court,  depends 
upon  the  fact  that  tiie  goods  came  into  iiis 
possession  in  h'ls  chai-acter  of  innkeeper, 
as  belonging  to  a  guest.  Smith  v.  Dear- 
love,  6  C.  B.  132. 


CH.  xil]  bailment.  *634 

and  liable  only  for  gross  negligence  ;  because  this  bailment  is 
wholly  for  the  benefit  of  the  bailor. 

A  carrier,  like  any  mandatary,  has  a  special  property  so  far 
as  to  maintain  an  action  for  a  tort  to  the  thing  while  in  his  pos- 
session ;  but  not,  it  seems,  if  it  went  out  of  his  possession  by 
his  own  \^Tongful  disregard  of  the  directions  of  the  bailor,  (v) 
And  if  he  incur  expenses  in  relation  to  it,  he  would  have  a  lien 
on  the  article  for  them. 

The  private  carrier  for  hire  is  bound  to  ordinary  diligence,  and 
liable  for  ordinary  negligence,  because  this  bailment  is  for  the 
benefit  of  both  bailor  and  bailee.  He  is  of  course  not  liable  for 
a  loss  caused  by  robbery  or  theft,  which  could  not  be  avoided 
by  ordinary  care,  or  for  one  from  overpowering  force.  But  he 
is  liable  for  the  negligence  of  his  servants  or  agents,  (in)  It  is 
not  necessary  that  the  owner  should  promise  to  pay  the  carrier 
a  certain  price,  in  order  to  hold  him  to  his  liability  ;  for  it  is 
enough  if  the  carrier  is  entitled  to  a  reasonable  compensation.  ^ 
By  the  civil  law,  robbery  by  force  was  a  sufficient  defence  for 
the  bailee,  but  if  the  goods  were  lost  by  secret  purloining,  he 
was  bound  to  show  affirmatively  the  absence  of  negligence  on 
his  part.  It  can  hardly  be  said  that  this  distinction  is  adopted 
by  the  common  law;  although  it  has  been  said  that  the  occur- 
rence of  such  loss  was  primd  facie  evidence  of  negligence  ;  but 
it  may  well  be  doubted  whether  the  common  law  raises  such  a 
presumption,  {x)  Certainly  in  most  cases,  if  not  in  all,  the 
question  of  ordinary  negligence  is  one  of  fact,  to  be  determined 
by  the  jury  on  the  whole  evidence,  and  not  one  of  law.  (/y) 
And  if  the  loss  may  as  well  be  attributed  to  the  negligence  of 
the  owner  as  of  the  carrier,  the  carrier  is  not  liable.  We  take 
the  distinction  between  the  common  carrier  and  the  private  car- 
rier for  hire  to  be  this:  If  goods  given  to  either  are  neither 
delivered  *  nor  accounted  for,  the  carrier,  whether  common  or 
private,  is  liable.  But  if  it  be  shown  that  the  goods  were  lost, 
then  the  common  carrier  is  still  liable,  unless  he  brings  the  case 
within  the  exceptions  of  the  act  of  God,  or  of  the  public  enemy ; 

(r)  Miles  v.  Cattle,  6  Binff.  743.  (r)  Sec  Storv  on  Bailin.  4  333-330. 

(iv)  Brind  v.  Dale,  8  C.  &  V.  207.  (y)  Doorman  v.  Jeukins,  2  Ad.  &  El.  256. 

VOL.  I.  56  [  GOl  ] 


f 


634-  THE    LAW    OF   CONTRACTS.  [bOOK    III. 

but  the  private  earner  is  not  liable,  unless  the  owner  shows  that 
the  loss  arose  from  the  carrier's  negligence,  (z)  It  is  some- 
times said  that  the  liability  of  the  common  carrier  is  indepen- 
dent of  contract  and  imposed  by  custom  and  public  policy.  We 
should  prefer  saying  that  it  must  arise  from  a  contract  and  be 
founded  upon  it,  but  is  then  qualified  and  regulated  by  the  cus- 
tomary law  in  a  manner  different  from  the  liability  assumed  by 
a  private  carrier. 

A  private  carrier  for  hire  may  undoubtedly  enlarge  his  lia- 
bility by  special  contract,  even  to  the  extent  of  warranty.  Or 
he  may  lessen  his  liability  by  agreement.  A  special  promise  to 
carry  "  safely  and  securely,"  leaves  him  still  liable  only  lor  neg- 
ligence,  (a) 

The  private  carrier  for  hire  would  seem,  on  general  principles, 
to  have  a  lien  on  the  goods  for  his  hire ;  but  this  does  not  as  yet 
appear  to  be  distinctly  adjudicated. 

^  Common  Carriers.  The  common  carrier  may  be  a  carrier  of 
goods,  or  of  passengers,  or  of  both  We  shall  first  consider  the 
common  carrier  of  goods,  and  afterwards  the  common  carrier  of 
passengers. 

The  law  in  relation  to  the  common  carrier  is  very  peculiar  in 
many  respects.  He  is  held  in  the  first  place  to  very  stringent 
responsibilities.  He  is  not  only  responsible  for  any  loss  of  or 
injury  to  the  goods  he  carries,  which  is  caused  by  his  negli- 
gence, but  the  law  raises  an  absolute  and  conclusive  presump- 
tion of  negligence  whenever  the  loss  occurs  from  any  other  cause 
than  "  the  act  of  God,"  or  the  public  enemy,  (b)  He  is  there- 
fore held  as  an  insurer  of  the  goods,  excepting  only  these  two 
causes  of  loss.  And  this  rule  of  law  is  at  least  as  ancient  as 
the  reign  of  Elizabeth,  (c)  It  is  obviously  founded  on  public 
policy.     The  goods  are  entirely  within  the  power  of  the  carrier: 

{z)  See  ante,  p.  606,  note  («).  6  Grat.  189.     And  by  reason  of  this  lia- 

(a)  Koss  V.  Hill,  2  C.  B.  877.  bility  they  have  an  insurable   interest   in 

(b)  Coggs  V.  Benianl,  2  Ld.  Raym.  the  goods.  Chase  v.  Washington  M.  Ins. 
909;  Proprietors  of  Trent  Navigation  v.  Co.  12  Barb.  595;  Steele  v.  Insurance  Co. 
Wood,  3  Esp.  127,  4  Doug.  290  ;  Forward  17  Peun.  290. 

V.  Pittard,  1  T.  R.  27  ;  Mershon  v.  Hoben-  (c)  Woodleife  v.  Curties,  1  Rol.  Abr.  2, 
sack,  2  New  Jersey,  372;  Chevallier  v.  124;  2  Co.  Litt.  89  a,  S.  C.,  7tom.  Wood 
Straham,  2  Texas,  115  ;  Friend  v.  Woods,     life's  case,  Moore,  462. 

[G62] 


CH.  Xn.]  BAILMENT.  *635 

and  it  would  be  so  easy  for  him  to  conceal  his  fraud  or  miscon- 
duct, and  so  difficult  for  the  owner  to  prove  it,  that  the  law  does 
not  permit  the  inquiry  to  be  made  ;  but  supplies  the  want  of 
proof  by  a  conclusive  presumption.  The  "act  of  God"  is  con- 
sidered by  *some  as  equivalent  to  "inevitable  accident,"  (c?)  but 
we  do  not  so  construe  these  phrases.  There  seems  to  be  a  real 
difTerence  between  theHi.  The  carrier  is  liable  for  loss  by  rob- 
bery, although  the  force  was  overwhelming,  and  wholly  without 
notice.  If  it  be  said  that  he  is  liable  for  this  loss,  because  it  is 
not  "inevitable,"  as  a  sufficient  guard  or  other  precautions 
might  have  prevented  it,  then  we  say  that  neither  can  injury 
from  an  inundation,  a  storm,  or  sudden  illness,  (all  of  which 
excuse  him,)  be  regarded  as  "inevitable,"  because  it  is  seldom 
that  losses  from  these  causes  could  not  have  been  prevented  by 
previous  forethought  and  precaution.  We  take  the  true  defini- 
tion of  the  "  act  of  God  "  to  be,  a  cause  which  operates  without 
any  aid  or  interference  from  man.  (e)  For  if  the  cause  of  loss 
was  wholly  human,  or  became  destructive  by  human  agency 
and  co(»peration,  then  the  loss  is  to  be  ascribed  to  man  and  not 
to  God,  and  to  the  carrier's  negligence,  because  it  would  be 
dangerous  to  the  community  to  permit  him  to  make  a  defence 
which  might  so  frequently  be  false  and  fraudulent.   (/)     Xor 


{d)  See  Fii-h  v.  Cliapman,  2  Geo.  349  ;  "  A  can-ier  is  in  the  nature  of  an  insurer. 

Neal  V.  Sannderson,  2  S.  &  M.  572  ;  Wal-  It  is  laid  down  tiiat  lie  is  lialile  for  every 

pole  V.  Ihiilyes,  5  Blackf.  222.  accident,  except  by  the  act  of  God  or  tiie 

(f)  "  The  act  of  God,"  says  Lord  J/*;;!.?-  kind's  enemies.     Now,  what  is  the  act  of 

Jield,  "is   natural   necessity,  as  wind  and  God?     I  consider  it   to  mean   sonietliin<; 

storms,  which  ari.se  from  natural  causes,  in  o))position  to  the  act  of  man  :  fur  every 

and  is  ilistinct  from  inevitalde  accident."  thinjj  is  tlie  act  of  Goil  tliat  liajipcns  liy 

Proprietors  of  Trent  Navi<ration  v.  Woo<l,  his  jiermission  ;  every  tliinjr  hy  his  knowl- 

4  Doufr.  287,  290.     Sec  also,  the  remarks  edge.    But  to  prevent  litigation,  collusion, 

of   Coircii,    J.,    in    McArthur    v.    Sears,  and  the  necessity  of  poing   into  circum- 

21  AVend.  190,  198.  stances  imjjossihle  to   he  unravelled,  the 

(  /")   The  case  of  Forward  r.  Pittard,  1  law  presumes  against   the   carrier,  unless 

T.  U.  27,  is  a  very  leading  authority  as  to  he  shows  it  was  done   by  the   king's  enc- 

what  constitutes  an  act  of  God.     In   that  mies.  or  by  such  act  as  could  not  happen 

case   the   plaintiff's  goods,  while  in  the  liy   the   intervention  of  man,  as  storms, 

possession  of  the  ilefendant  as  a  common  lightning,    and    tempests.     If    nn    armed 

carrier,  were    consumfcl    by  fire.     It   was  force  come  to  rob  the  cairier  of  the  gootls, 

found  tliat  the  accident  hapjiencd  witJKjut  he  is  lialile  ;    and  a  reji.son  is  given    in  the 

any  actual  negligence  in    the    defendant,  books,  which  is   a   bail    one,  viz.,  that  he 

but   that    the  fire  was  not   occasioned   by  ought  to  have  a  sufficient  force  to  repel  it ; 

lightning.      Under    these    circmnstanccs,  but   that  would    be    impossible    in    some 

the  Court  of  King's  Bench  held   the   tie-  cases,  as,  for  instance,  in  the  riots  in  the 

feudant  liable  ;  and  Lord  MuiisjUhl  said  :  year  1780.     The  true  reason  is  for  fear  it 

r  6G31 


636* 


THE   LAW    OF   CONTRACTS. 


[book  ni. 


need  this  "  act "  *be  positive  ;  although  only  negative,  it  excuses 
the  carrier;  a  failure  of  wind  is  put  upon  the  same  footing  as  a 
storm,  (g-) 


may  <^ive  room  for  collusion,  that  the  mas- 
ter may  contrive  to  be  robbed  on  purpose, 
and  share  the  spoil.  In  this  case,  it  does 
not  apjiear  but  that  the  fire  arose  from  the 
act  of  some  man  or  other.  It  certainly 
did  arise  from  some  act  of  man  ;  for  it  is 
expressly  stated  not  to  have  happened  by 
lightninfr. ,  The  carrier  therefore  in  this 
case  is  liable,  inasmuch  as  he  is  liable  for 
inevitable  accident."  See  also,  Mc Arthur 
V.  Sears,  21  Wend.  190;  Ewart  v.  Street, 
2  Bailey,  157  ;•  Fish  i'.  Chapman,  2  Geo. 
349  ;  Backhouse  r.  Snced,  1  Mui-pliey,  17.3. 
Since  tlie  loss,  to  come  within  the  excep- 
tion of  the  "  act  of  God,"  must  happen 
without  human  agency,  it  is  of  course  no 
excuse  for  the  carrier  that  the  loss  was 
occasioned  by  the  act. of  a  tliird  person. 
Thus  the  owners  of  a  steamboat,  being  a 
common  carrier,  are  liable  for  a  shipment 
on  board  of  her,  lost  by  means  of  a  col- 
lision with  another  vessel  at  sea,  and 
without  fault  imputable  to  either,  there 
being  no  express  stipulation  of  any  kind, 
between  the  owner  of  the  goods  and  the 
owners  of  the  boat,  that  they  should  be ' 
exempt'd  from  the  perils  of  the  sea. 
Plnisted  V.  B.  &  K.  Steam  Navigation  Co. 
27  Maine,  132.  See  also,  Mershon  v. 
Hobensack,  2  New  Jer.  372  ;  Lipford  v. 
Railro.id  Comp.  7  Rich.  Law,  409  ;  The 
Brig  Casco,  Daveis,  184.  For  the  same 
reason,  the  act  of  God,  which  will  excuse 
a  common  can-ier  for  the  loss  of  goods, 
must  be  the  immediate  and  not  the  remote 
cause  of  the  loss.  This  is  well  illustrated 
by  tlie  case  of  Smith  v.  Shepherd,  Abbott 
oil  Siiipping,  383,  (5th  Am.  ed.).  That 
was  an  action  brouglit  against  the  master 
of  a  vessel  navigating  the  river  Ouse  and 
Humber  from  Selby  to  Hull,  by  a  person 
whose  goods  had  lieen  wet  and  spoiled. 
At  the  trial,  it  appeared  in  evidence  that 
at  the  entrance  of  the  harbor  at  Hull  there 
was  a  l)ank  on  which  vessels  used  to  lie  in 
safety,  but  of  which  a  part  had  been  swept 
away  by  a  great  flood  some  short  time  be- 
fore the  misfortune  in  question,  so  that  it 
had  become  perfectly  steep,  instead  of 
shelving  towards  the  river ;  that  a  few  days 
after  this  flood  a  vessel  sunk  by  getting  on 
this  bank,  and  her  mast,  which  was  carried 
away,  was  suftered  to  float  in  the  river, 
tied  to  some  part  of  the  vessel ;  and  the 
defendnnt,  uj^on  sailing  into  the  harbor, 
struck  against  the  mast,  which,  not  giving 

[664] 


way,  forced  the  defendant's  vessel  towards 
the  bank,  where  she  struck,  and  would 
have  remained  safe  had  the  bank  remained 
in  its  former  situation,  but  on  the  tide 
ebbing,  her  stern  sunk  into  the  water,  and 
the  goods  Were  spoiled ;  upon  which  the 
defendant  tendered  evidence  to  show  that 
there  had  been  no  actual  negligence.  Mr. 
Justice  Heaili,  before  whom  the  cause  was 
tried,  rejected  the  evidence  ;  and  he  fur- 
ther ruled  that  the  act  of  God,  which  could 
excuse  the  defendant,  must  be  immediate ; 
but  this  was  too  remote  ;  and  directed  the 
jury  to  find  a  verdict  for  the  plaintifi",  and 
they  accordingly  did  so.  The  case  was 
afterwards  submitted  to  the  consideration 
of  the  Court  of  King's  Bench,  who  ap- 
proved of  the  direction  of  the  learned 
judge  at  tlie  trial,  and  the  plaintitf  suc- 
ceeded in  the  cause.  There  does  not  ap- 
pear to  have  existed  in  this  case  any  bill 
of  lading,  or  other  instrument  of  contract ; 
and  the  cpiestion,  therefore,  depended  upon 
general  principles,  and  not  upon  the  mean- 
ing of  any  particular  word  or  exception. 
Mr.  Justice  StoTi/,  in  commenting  upon 
this  case,  says  :  "  If  the  mast,  which  was 
the  immediate  cause  of  the  loss,  had  not 
been  in  the  way ;  but  the  bank  had  been 
suddenly  removed  by  an  earthquake,  or 
the  removal  of  the  bank  had  been  un- 
known, and  tlie  vessel  had  gone  on  the 
bank  in  the  usual  manner,  the  decision 
would  have  been  otherwise."  Story  on 
Bailments,  §  517.  And  this  opinion  seems 
to  be  supported  by  the  case  of  Smyi'l  v. 
Niolon,  2  Bailey,  421,  vvhere  it  is  held 
that  a  loss  caused  by  a  boat's  running  on 
an  unknown  "  snag '  in  the  usual  channel 
of  a  river  is  referable  to  the  act  of  God  ; 
and  the  carrier  will  be  excused.  See  also, 
Faulkner  v.  Wright,  Rice,  107  ;  and  Wil- 
liams V.  Grant,  1  Conn.  487.  On  the 
other  hand,  in  Friend  v.  Woods,  G  Gratt. 
189,  where  a  common  carrier  on  the 
Kanawha  river  stranded  his  l)oat  upon  a 
bar  recently  formed  in  the  ordinary  chan- 
nel of  the  river,  of  the  existence  of  which 
he  was  previously  ignorant,  he  was  held 
liable  for  damage  done  to  the  freight  on 
board  his  boat.  And  this  last  case  has 
received  the  support  of  Mr.  Wallace,  one 
of  tlie  learned  American  editors  of  Smith's 
Leading  Cases.  See  his  note  to  Coggs  v. 
Bernard,  1  Smith's  L.  C.  82. 

((/)  Thus  where  a  vessel  was  beating  up 


on.  XII.] 


BAILMENT. 


*637-*638 


*  But  whether  the  loss  be  caused  by  excess  or  deficiency  of 
wind,  or  any  other  act  of  God,  if  the  negligence  of  the  carrier 
mingles  with  it,  he  is  responsible,  (h)  So  he  is  for  a  loss  by  fire, 
whether  on  land  or  at  sea,  unless  it  be  caused  by  lightning  ;  (i) 
and  this  rnle  is  applied  to  steamboats,  (j)  But  the  freezing  of 
our  navigable  waters,  whether  natural  or  artificial,  excuses  the. 
carrier  unless  his  negligence  cooperates  in  causing  the  loss,  (k) 

The  carrier  is  not  liable  for  any  loss  from  natural  decay  of 
perishable  goods;  such  as  fruit  or  the  like;  or  the  fermentation 
of  liquors,  or  their  evaporation  or  leakage,  (l)  So  far  *  as  losses 
of  this  kind  are  caused  by  the  operation  of  natural  laws,  they 


the  Hudson  river  against  a  light  and  vari- 
al)lc  wind,  and  being  near  .sliore,  and  wliile 
changing  her  tack,  the  wind  suddenly 
failed,  in  consetjuenee  of  wiiieli  slie  ran 
aground  and  sunk ;  it  was  held  that  tiie 
sudden  failure  of  the  wind  was  the  aet  of 
God,  and  excused  the  master ;  there  being 
no  negligence  on  his  part.  And  Spencer, 
J.,  said  ;  "  Tlie  case  of  Amies  v.  Stevens, 
1  Strange,  128,  shows  that  a  sudden  gust 
of  wind,  by  which  the  hoy  of  the  carrier, 
shooting  a  bridge,  was  driven  against  a 
pier  and  overset,  by  the  violence  of  the 
shock,  has  been  adjudged  to  be  the 
act  of  God,  or  vis  diviita.  The  sudden 
gust  in  the  case  of  the  hoyman,  and  the 
su(i<len  and  entire  fiiilnre  of  the  wind 
suthcient  to  einible  the  vessel  to  beat, 
are  equally  to  be  considered  the  acts 
of  Go(i.  He  caused  the  gust  to  blow  in 
the  one  case ;  and  in  the  other  the  wind 
was  stayed  by  Ilim."  Colt  i'.  McMechen, 
6  Johns.  160.  This  case,  however,  has 
met  the  disappnjbation  of  Mr.  Wallace. 
See  note  to  Coggs  v.  lieriuird,  ubi  siijira. 

(A)^  Amies  v.  Stevens,  1  Strange,  128; 
Williams  v.  Branson,  1  Murph.  417  ;  Wil- 
liams i\  Grant,  1  Conn.  487  ;  Caniptiell  v. 
Morse,  Harper,  468  ;  Clark  v.  Barnwell, 
12  How.  272.  See  also,  Morrison  v. 
Davies,  20  I'enn.  St.  ]{eps.  171. 

(»•)  Forward  r.  I'ittard,  1  T.  R.  27; 
Thorogood  r.  Marsh,  Gow,  105;  Hale  v. 
N.  J.  Steam  Navigati<m  Co.  1.5  Coini.  .^.SO, 
54.');  Parker  v.  Flagg,  26  Maine,  181; 
I'arsons  f.  Montcath,  I. J  Barb.  333;  Chc- 
vallier  v.  Strahani,  2  Texas,  115. 

(  /)  Gibnorc  v.  Carman,  1  S.  &  M.  279. 

\h)  Parsons  v.  Hardy,  14  Wend.  215. 
But  the  carrier  is  nevertheless  bound  to 
exercise  ordinary  forecast  in  anticipating 
the   obstruction ;    nmst    use    the    pro])er 

56* 


means  to  overcome  it ;  and  exerci-^e  due 
diligence  to  accomplish  the  trans])ortaiioa 
he  has  undertaken,  as  soon  as  the  ()l>struc- 
tion  ceases  to  operate,  and  in  the  mean 
time  must  not  be  guilty  of  negligence  in 
the  care  of  the  property.  Bowman  v. 
Teall,  23  Wend.  306.  See  al.^o,  Lowe  v. 
Moss,  12  111.  477.  And  where  damage 
was  done  to  a  cargo  by  water  escaping 
through  the  jiipe  of  a  steam-boiler,  in  con- 
se(pienee  of  the  pipe  having  been  cracked 
by  frost ;  it  was  held  that  this  w;^s  not  an 
aet  of  God,  but  negligence  in  the  ca])tain, 
in  filling  tlie  boiler  before  the  time  for 
heating  it,  although  it  was  the  practice  to 
fill  over  night  when  the  vessel  started  in 
the  morning.  And  BeM,C.  J.,said  :  "No 
one  can  doubt  that  this  loss  was  occasifined 
by  negligence.  It  is  well  known  that  frost 
will  rend  iron  ;  and  if  .so,  the  master  of  a 
vessel  cannot  be  justified  in  keeping  water 
within  his  boiler  in  the  middle  of  winter, 
when  frost  may  be  e.xi)eeted.  The  jury 
found  that  this  was  negligence,  and  I  agree 
in  their  verdict."  Siordct  v.  Hall,  4  Biiig. 
607. 

(/)  Thus,  if  an  action  be  brought  against 
a  carrier  for  negligently  driving  his  cart, 
so  that  a  pipe  of  wine  was  burst  and  lost, 
it  will  be  good  evidence  fur  the  defcn<lant 
that  the  wine  was  upon  the  ferment,  and 
when  the  pijie  was  burst  he  was  driving 
gently.  Per  Lord  Ilolt,  in  Farrar  r. 
Adams,  Bull.  N.  P.  69.  Sec  also,  Leach 
I'.  Baldwin,  5  Watts,  446 ;  Warden  r. 
Greer,  6  Watts,  424  ;  Clark  v.  Barnwell, 
12  How.  272.  And  where  there  is  a  cus- 
tom to  carry  goods  in  open  wagons,  of 
which  the  sen<ler  had  notice,  the  carrier  is 
not  liable  for  injuries  caused  bj-  rains  dur- 
ing the  transportation.  Chevaillier  v.  Pat- 
ton,  10  Texiis,  344. 

[G65] 


638- 


THE  LAW   OF   CONTRACTS. 


[book  III. 


come  within  the  exception  of  the  "  act  of  God."  But  the  carrier 
is  nevertheless  not  excused  if  the  loss  was  caused  also  by  his 
default,  as  by  bad  stowage,  or  other  negligence.  And  if  he  is 
informed  that  the  goods  are  perishable,  or  should  know  it  from 
the  nature  of  the  goods,  he  is  bound  to  use  all  reasonable  means 
and  precautions  to  prevent  the  loss,  (m)  So  if  a  particular  no- 
tice is  given  him  ;  as  by  marking  the  box,  "  Glass,  this  side  up," 
or  the  like,  he  is  bound  to  take  notice  and  follow  these  direc- 
tions,  (n) 

Losses  by  the  public  enemy  include  those  only  which  are 
sustained  from  persons  with  whom  the  State  or  nation  is  at 
war ;  and  pirates  on  the  high  seas,  who  are  "  the  enemies  of  all 
mankind;"  (o)  but  not  thieves;  nor  robbers;  nor  mobs;  nor 
rioters,  insurgents,  or  rebels,  (p)  But  this  principle  may  be  af- 
fected by  the  rule  that  robbery  at  sea  is  piracy. 


(m)  Ibid. 

(n)  Thus,  where  a  box  containing  a 
glass  bottle  filled  with  oil  of  cloves,  de- 
livered to  a  common  carrier,  was  marked, 
"  Glass — with  care — this  side  up  ;  "  it  was 
held  tliat  this  was  a  sufficient  notice  of  the 
value  and  nature  of  the  contents  to  cliarge 
him  for  the  loss  of  the  oil,  occasioned  by 
his  disregarding  such  direction.  And 
Shaw,  C.  J.,  said  :  "  It  is  not  denied  tliat 
the  box  was  marked,  '  Glass — with  care — 
this  side  up,'  wliich  was  quite  sufficient 
notice  to  the  defendant  that  the  article  was 
valualile,  and  liable  to  injury  from  rough 
handling  and  other  causes,  and  that  there 
was  danger  in  carrying  it  in  any  other 
position  than  the  one  indicated  by  the  in- 
scription. As  the  carriage  is  a  matter  of 
contract,  as  the  owner  lias  a  right  to  judge 
for  himself  what  position  is  best  adapted 
to  carrying  goods  of  this  description  with 
safety,  and  to  direct  how  they  shall  be 
carried,  and  as  the  carrier  has  a  right  to 
fix  his  own  rate  for  the  carriage,  or  refuse 
altogether  to  take  the  goods  with  such 
directions,  the  court  are  all  of  opinion, 
that  if  a  carrier  accepts  goods  for  car- 
riage, thus  marked,  he  is   bound  to  carry 

[6G6] 


the  goods  in  the  manner  and  position  re- 
quired by  the  notice.  Here  it  is  in  evi- 
dence, and  not  denied,  that  the  box 
was  stowed  in  such  a  manner  tbat  the 
marked  side  was  not  kept  up,  and  conse- 
quently the  large  bottle,  which  was  broken 
by  some  cause  in  the  passage,  after  it  was 
stowed  and  before  its  arrival,  bore  its 
weight  upon  its  side,  and  not  on  its  bot- 
tom." Hastings  v.  Pepper,  11  Pick.  41. 
See  also,  Sager  v.  Portsmouth,  &c..  Rail- 
road Co.,  31  Maine,  228. 

(o)  Story  on  Bailm.  §§  25,  526  ;  Ang. 
Com.  Car.  §  200.  We  have  ventured  to 
incluile  pirates  within  the  exce]jtion  of 
"  public  enemies,"  on  the  authority  of  these 
eminent  text-writers.  The  cases,  however, 
which  they  cite,  arose  upon  bills  of  lading, 
which  contained  the  excejition  of  the 
"  perils  of  the  sea ;  "  and  the  only  ques- 
tion made  in  those  cases  was  whether  a 
loss  by  pirates  came  within  the  latter  ex- 
ception ;  and  the  testimony  of  merchants 
was  taken  as  to  the  mercantile  usage  in 
that  res]3ect.  See  Pickering  v.  Earkley, 
2  Rol.  Abr.  248,  Styles,  132;  Barton  v. 
Wolliford,  Comb.  56. 

(  p)  Morse  v.  Slue,  1  Vent.  190,  238. 


CH.  XII.] 


BAILMENT. 


*639 


*  SECTION     VI. 


WHO   IS   A    COMilON   CARRIER. 


To  determine  who  is  a  common  carrier,  we  adopt  the  defini- 
tion of  Mr.  Chief  Justice  Parker  of  Massachusetts.  "  He  is  one 
who  undertakes,  for  hire,  to  transport  the  goods  of  such  as 
choose  to  employ  him,  from  place  to  place."  {q)  And  we  regard 
this  as  a  true  definition,  although  in  some  of  the  States  it  has 
been  held  that  a  wagoner  who  carried  goods  on  a  special  request, 
although  such  carrying  was  not  his  general  business,  but  only 
occasional  and  incidental,,  was  still  a  common  carrier,  (r)      It 


(7)  Dwight  V.  Brewster,  1  Pick.  50,  53. 
A  similar  definition  is  given  in  Kobertson 
I'.  Kennedy,  2  Dana,  430;  Elicins  v.  Bos- 
ton and  Maine  K.  11.  3  Foster,  275 ; 
Mcrsiion  v.  Ilobensack,  2  New  Jersey,  373. 
So  in  Gisbourn  v.  Ilurst,  1  Sulk.  249,  it 
was  resolved  that  "  any  man  nndertaking 
for  hire  to  carry  the  goods  of  all  persons 
inditterently  is  a  common  carrier." 

(/•)  Gordon  v.  Hutchinson,  1  W.  &  S. 
285.  In  this  case  the  defendant,  being  a 
farmer,  applied  at  the  store  of  the  plaintiff 
for  tlie  hauling  of  goods  from  Lewistown 
to  Bellefonte,  njion  his  return  from  tlic 
former  |)lace,  where  he  was  going  witli  a 
loa<l  of  iron.  He  received  an  order  and 
loaded  tlie  goods.  On  the  way,  tiie  head 
came  out  of  a  hogshead  of  molasses,  and 
it  was  wholly  lost;  and  this  action  was 
brought  to  recover  the  price  of  it.  The 
defi.-ndant  contended  that  he  was  not  sub- 
ject to  the  res])onsiliilitics  of  a  connnon 
carrier,  but  only  answerable  for  negligence, 
inasmuch  as  he  was  only  employed  occa- 
sionally to  carry  for  liire.  But  the  learned 
judge  before  whom  the  cause  was  tried  in- 
structed the  jury  that  he  was  liable  as  a 
common  carrier.  And  the  Sui)reme  Court 
held  tiie  instruction  to  be  correct.  Gihsoii, 
C.  J.,  said  :  "The  best  detinition  of  u 
common  carrier,  in  its  application  to  the 
business  of  this  country,  is  that  which  Mr. 
Jeremy  (Law  of  Carriers,  4)  has  taken 
from  Gisi)ourn  r.  Hurst,  1  Salk.  24'J,  [see 
preceding  note,]    which  was  the    case  of 


one  who  was  at  first  not  thought  to  be  a 
common  carrier,  only  because  he  had,  for 
some  siHull  time  before,  brought  cheese  to 
London,  and  taken  such  goods  as  he  could 
get  to  carry  back  into  the  country,  at  a 
reasonable  price ;  but  the  goods  liaving 
been  distrained  for  the  rent  of  a  barn,  into 
which  he  had  ]iut  his  wagon  for  safe- 
keeping, it  was  finally  resolved  that  any 
man  undertaking  to  carry  the  goods  of  (ill 
persons  indifferent!  1/,  is  its  to  exemption 
from  distress  a  common  carrier.  Mr.  Jus- 
tice Story  has  cited  this  case  (Commen- 
taries on  Bailments,  322)  to  jn'ove  that  a 
common  carrier  is  one  who  holds  himself 
out  as  ready  to  engage  in  the  transjiortar 
tion  of  goods  for  hire  as  a  business,  and  not 
as  a  casual  occupation  pro  luic  vice.  My 
conclusion  from  it  is  different.  I  take  it 
a  wagoner  who  carries  goods  for  hire  is  a 
common  carrier,  whether  transportation  be 
his  iirincijial  and  direct  business,  or  an 
occasional  and  incidental  employment. 
It  is  true,  the  court  went  no  further  tiian 
to  say  the  wagoner  was  a  common  carrier, 
as  to  the  privilege  of  exemption  from  dis- 
tress ;  but  his  (contract  was  held  not  to  be 
a  private  undertaking,  as  the  court  was  at 
first  inclined  to  consider  it,  but  a  public 
engagement,  l)y  reason  of  his  readiness  to 
carry  for  any  one  who  would  em|)lov  him, 
without  regard  to  his  other  avocations; 
and  he  would  consequently  not  oidy  bo 
entitled  to  the  privileges,  but  be  subject  to 
the  responsibilities  of  a  common  carrier  ; 

[GG7] 


I 


640* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


may  sometimes  be  difficult  to  *  draw  the  line  ;  and  more  difficult 
in  this  country  than  elsewhere,  where  men  so  often  engage  in  a 


indeed,  they  are  correlative,  and  there  is 
no  reason  why  he  should  enjoy  the  one 
without  being  burdened  with  liie  other. 
Chancellor  Kent  (2  Comm.  597),  states 
the  law,  on  the  authority  of  Robinson  v. 
Dnnmore,  2  B.  &  P.  416",  to  be  that  a  car- 
rier for  hire  in  a  particuhir  case,  not  exer- 
cising the  business  of  a  commun  carrier,  is 
answerable  only  for  ordinary  neglect,  un- 
less he  assume  the  risk  of  a  common  car- 
rier by  exjjress  contract ;  and  Mr.  Justice 
Story,  (Com.  on  Bailments,  298,)  as  well 
as  the  learned  annotator  on  Sir  William 
Jones's  Essay,  (Law  of  Bailm.  103  d,  note 
3,)  does  the  same  on  the  authority  of  the 
same  case.  There,  however,  the  defend- 
ant was  held  liable,  on  a  special  contract 
of  warranty,  that  the  goods  shovild  go  safe ; 
and  it  was  therefore  not  material  whether 
he  was  a  general  carrier  or  not.  The 
judges  indeed  said  that  he  was  not  a  com- 
mon carrier,  but  one  who  had  put  himself 
in  the  case  of  a  common  carrier  by  his 
agreement ;  yet  even  a  common  carrier 
may  restrict  his  responsiliility  by  a  special 
acceptance  of  the  goods,  and  may  also 
make  himself  answerable  by  a  special 
agreement  as  well  as  on  the  custom.  The 
question  of  carrier  or  not  therefore  did  not 
necessarily  enter  into  the  inquiry,  and 
we  cannot  suppose  the  judges  gave  it 
their  principal  attention.  But  rules  which 
have  received  their  form  from  the  business 
of  a  people  whose  occupations  are  definite, 
regular,  and  fixed,  nmst  be  applied  with 
much  caution,  and  no  little  qualification, 
to  the  business  of  a  people  whose  occupa- 
tions are  vague,  desultory,  and  irregular. 
In  England,  one  who  holds  himself  out  as 
a  general  carrier  is  bound  to  take  employ- 
ment at  the  current  price  ;  but  it  will  not 
be  thought  that  he  is  bound  to  do  so  here. 
Kothing  was  more  common  formerly  than 
for  wagoners  tg  lie  by  in  PhiUulelphia  for 
a  rise  of  wages.  In  England  the  obliga- 
tion to  carry  at  request  upon  the  carrier's 
particular  route  is  the  criterion  of  the  pro- 
fession, but  it  is  certainly  not  so  with  us. 
In  Pennsylvania  we  had  no  carriers  ex- 
clusively between  particular  places,  before 
the  establishment  of  our  public  lines  of 
transi)ortation  ;  and,  according  to  the  Eng- 
lish principle,  we  could  have  had  no 
common  carriers,  for  it  was  not  pretended 
that  a  wagoner  could  be  compelled  to  load 
for  any  part  of  the  continent.  But  the 
policy  of  holding  hira  answerable  as  an 

[  668  ]  . 


insurer  was  more  obviously  dictated  by 
the  solitary  and  mountainous  regions 
through  which  his  course  for  the  most 
part  lay,  than  it  is  by  the  frequented 
thoroughfares  of  England.  But  the  Penn- 
sylvania wagoner  was  not  always  such 
even  by  profession.  No  inconsiderable 
part  of  the  transportation  was  done  by 
the  fi^rmers  of  the  interior,  who  took  their 
produce  to  Philadelphia,  and  procured 
return  loads  for  the  retail  merchants  of 
the  neighboring  towns  ;  and  many  of 
them  passed  by  their  homes  with  loads 
to  Pittsburg  or  Wheeling,  the  principal 
points  of  embarkation  on  the  Ohio.  But 
no  one  supposed  they  were  not  respon- 
sible as  common  carriers  ;  and  they  al- 
ways compensated  losses  as  such.  They 
presented  themselves  as  applicants  for  em- 
ployment to  those  who  could  give  it ;  and 
were  not  distinguishable  in  their  appear- 
ance or  in  the  equipment  of  their  teams 
from  carriers  by  jirofcssion.  I  can  readily 
understand  why  a  carpenter  encouraged 
by  an  employer  to  undertake  the  job  of  a 
cabinet  maker,  shall  not  be  bound  to  bring 
the  skill  of  a  workman  to  the  execution  of 
it ;  or  why  a  farmer  taking  his  horses  from 
the  plough,  to  turn  teamster  at  the  solici- 
tation of  his  neighbor,  shall  be  answerable 
for  nothing  less  than  good  faith ;  but  I 
am  unable  to  understand  why  a  wagoner, 
soliciting  the  employment  of  a  common 
carrier,  shall  be  prevented  by  the  nature 
of  any  other  employment  he  may  some- 
times follow  from  contracting  the  respon- 
siliility of  one.  What  has  a  merchant  to 
do  with  the  private  business  r>f  those  who 
publicly  solicit  employment  from  him  ? 
They  offer  themselves  to  him  as  compe- 
tent to  perform  the  service  required,  and, 
in  the  absence  of  express  reservation,  they 
contract  to  perform  it  on  the  usual  terms, 
and  under  the  usual  responsibilitj'.  Now, 
what  is  the  case  here  ?  The  defendant  is 
a  farmer,  but  has  occasionally  done  jobs 
as  a  carrier.  That,  hoM'Cver,  is  immate- 
rial. He  applied  for  the  transportation  of 
these  goods  as  a  matter  of  business,  and, 
consequently,  on  the  usual  conditions. 
His  agency  was  not  sought  in  consequence 
of  a  special  confidence  reposed  in  him  — 
there  was  nothing  special  in  the  case  — 
on  the  contrary,  the  emjdoymcnt  was 
sought  by  himself,  and  there  is  nothing  to 
show  that  it  was  given  on  terms  of  dimin- 
ished responsibility."     It  will  be  seen  that 


1 


CH.  XII.] 


BAILMENT. 


-640 


variety  of  employments ;  but  that  the  rule  of  law  is  as  we  have 
stated  we  cannot  doubt. 


the  learned  Chief  Justice  places  consider- 
able  reliance  upon   the  fact  that  the  de- 
fendant applied  to  the  plaintiff  to  fret  the 
goods  to  carry  ;  and  it  is  hy  no  means 
certain  that  the  decision  wouhl  liave  been 
the  same,  if  the  application  had  eome  from 
the  plaintiff.     But  wc  are  not  aware  of 
any  other  case  in  which  sudi  a  distinction 
is  taken.     The  decision    receives  sui)j)ort, 
however,  independently  of  this  distinction, 
from  the  case  of  McClure  v.  Richardson, 
Rice,  215.     In   that   case    the  defendant 
wa.s  the  owner  of  a  boat,  in  which  he  was 
accustomed   to    carry  his   oicn  cotton  to 
Charleston ;  and   occasionally,    wiien    he 
had  not  a  load  of  his  own,  to  take  for  his 
nei<;hbors,    they   paying-   freij^ht   for    the 
same.     One   Howzer  was  the  master  or 
putioon  of  the  boat,  and  the  (/enentl  habit 
was  for  those  who  wished  to  send  their 
cotton  by  the  defendant's  boat,  to  apply 
to  the  defendant   himself.     On  this  occa- 
sion the  i)atroon  had  been  told  to  take 
Col.  Goodwin's  and  I\Ir.  Dallas's  cotton, 
which  he  liad  done,  when  the  plaintiff  ap- 
jjlieil  to  Ilowzer,  in  the  absence  of  the  de- 
fendant, to  take  on  board  ten  bales  of  his 
cotton,  asking  him  if  it  was  necessary  to 
apply  to  the  defendant  himself,  to  wluch 
Ilowzer  rei)lied  that  he  thoutrht  not,  and 
received  tiie  cotton  ;  itwas  Ae/t/tbat  under 
tlie    circumstances,    the    defendant    was 
bound   by  the  act  of  Howzer,  as  being 
within  the  general  scope  of  the  authority 
conferreil  upon  him,  by  placing  him  in  the 
situation  of  master  of  the  boat,  and  that 
the  defendant  was  conserpicntiy  ciiargealile 
as  a  common  carrier  for  any  loss  of,  or 
damage  to,  the  plaintiff's   cotton.  —  So, 
too,  it  lias  l)cen  laid  down  in  general  terms, 
in  several  cases,  tliat  all  persons  carrying 
goods  for  hire  come  under  the  denomina- 
tion of  common  carriers.     See  Moses  i'. 
NoiTis,  4    New   IIam|).  .304  ;   Turney  v. 
Wilson,  7  Yerg.  340  ;  Craig  v.  Childress, 
Peck,   270 ;    McClures   v.  llammond,    1 
IJay,  99.     But  it  would  seem  to  be  an  in- 
superal)lc  objection  to  all  tiiese  cases,  tliat 
they  exclude  from  the  common  cairier  one 
of    his    most    important     characteristics, 
namely,  his  <liilij  to  carry  for  all  who  may 
wish  to  employ  liim  ;  for  it  is  conceded  in 
several  of  tliem  tliat  tlie  individual  wliom 
they  hold  liable  as  a  common  carrier  was 
under  no  obligation  to  undertake  the  car- 
rying in  (piestion,  uidess  he  iiad  chosen  so 
to  do.     The  case  of  Chevallier  u.  Strahain, 


2   Texas,   115,  maybe  thought  to  favor 
views    similar   to   those   declared   in   the 
cases  already  cited,  but  we  tiiink  it  does 
not.     It  ap])eared   in   tliat  case  that  the 
defendant's  principal  business  was  farm- 
ing, but   that  at  a  certain  period  of  the 
year,  known  as  the  hauling  season,  he  en- 
gaged in  the  forwarding  business,  and  ran 
his  wagon  whenever  he  met  with  an  op- 
portunity.    Under  these  circumstances,  he 
wiis  held  liable  as  a  common  carrier.  And 
the  court  said :  "  From  a  comparison  of 
the  various  authorities,  to  which  we  have 
referred  for  the  distinguishing  character- 
istics of  both  common  and  private  carriers, 
it  may  be   laid  down  as  a  rule,  that  all 
persons  who  transport  goods  from  place 
to  place,  for  hire,  for  such  persons  as  see 
fit   to   employ  them,  whether  usually  or 
occasionally,  whether  as  a  principal  or  an 
incidental  andsul)ordinate  occujiation,  are 
common  carriers,  and  incur  all   their  re- 
sponsibilities.    There  are  no  grounds  in 
reason  why  the   occasional   carrier,  who 
periodically  in  every  recurring  year,  aban- 
dons liis  other  pursuits,  and  assumes  that 
oftransporting  goods  for  the  jmblic,  should 
be  exempted  from  any  of  the   risks  in- 
cuiTcd  by  those  who  make  tbe  carrying 
business  their  constant  or  ])rinci])al  occu- 
pation.    For  the  time  being  he  shares  all 
the  advantages  arising  from  tlie  business ; 
and  as  the  extraordinary  responsii)ilities 
of  a  common  carrier  are  imjiosed  by  tiie 
policy  and  not  tlie  justice  of  the  law,  this 
policy  should  be  uniform  in  its  o])eration 
—  imparting  equal  bcnctits,  aixl  inflicting 
the  like  burdens  upon  all  who  assume  the 
cajiacity  of  public  carriers,  whether  tem- 
porarily or  permanently,  ))eriodically  or 
continuously."     It  will  lie  seen,  therefore, 
that  the  only  question  with   tiie  court  in 
tliis  case  was,  whether  it  was  necessary  to 
constitute  one  a  common  carrier  that  he 
should  hold  himself  out  as  such  continn- 
ously,  or  whether  it   was   sutticient  if  he 
held  himself  out  as  such  during  a  certain 
jjcriod  of  the  year.     And  there  would  cer- 
tainly sc(?m  to  i)e  no  reason  why  one  who 
holds  himself  out  to  the  public  as  a  com- 
mon carrier,  for  a  certain  season   in  the 
year,  should  not   be   liable  as  such.     We 
think  it  is  olivious,  from  the  facts  and  cir- 
cumstances of  this  case,  that  the  defendant 
had  held  himself  out  to  tlie  ]iublic  in  such 
a  inaiiner  tliat  he  would    have   inciinvd  a 
liability  if  he  had  refused  to  carry  for  any 

[  GG9  ] 


641-642* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


"We  regard  truckmen,  porters,  and  the  like,  who  undertake 
generally  to  carry  goods  from  one  part  of  a  city  to  another  *as 


one  who  wished  to  employ  him  during  the 
season  in  question  ;  and  the  court  held 
him  to  be  a  common  carrier  on  this 
ground,  and  carefully  distinguished  him 
from  one  who  undertakes  to  carry  for  hire 
in  a  particular  instance  and  under  a 
special  contract.  On  the  whole,  it  seems 
to  be  clear  that  no  one  can  be  considered 
as  a  common  carrier,  unless  he  has  in 
some  way  held  himself  out  to  the  public 
as  a  carrier,  in  such  a  manner  as  to  render 
him  liable  to  an  action  if  he  should  refuse 
to  carry  for  any  one  who  wished  to  employ 

him.     That  such  is  the  true  test,  see 

r.  Jackson,  1  Hayw.  14;  Fish  v.  Chap- 
man, 2  Geo.  349  ;  Samms  i\  Stewart,  20 
Ohio,  69.  In  Fish  v.  Chapman,  Mr.  Jus- 
tice Nisbet  declares  that  Gordon  >\  Hutch- 
inson is  opposed  to  the  pi'inciples  of  the 
common  law,  and  its  rule  wholly  inexpe- 
dient. The  case  of  Satterlee  v.  Groat,  1 
Wend.  272,  is  also  a  very  important  one 
upon  this  point.  It  appeared  that  the 
defendant  had  been  a  common  carrier  be- 
tween Schenectady  and  Albany,  previous 
to  1819.  He  then  sold  out  all  his  teams 
but  one,  which  he  kept  for  agricultural 
purposes  on  his  farm.  One  witness,  how- 
ever, testified  that  the  defendant  employed 
his  team  in  the  carrying  and  forwarding 
business,  as  occasions  offered,  until  1822 
or  1823.  But  subsequent  to  that  period, 
there  was  no  evidence  of  his  carrying  or 
forwarding  a  single  load,  until  April,  1824, 
when  one  John  Dows  applied  to  him  to 
bring  some  loads  for  him  from  Albany  to 
Schenectady,  to  which  the  defendant  re- 
luctantly consented,  and  despatched  one 
Asia  with  his  team  for  the  purpose,  with 
special  instructions  to  bring  nothing  for 
any  other  person  ;  and  if  Dows'  goods 
were  not  ready,  to  come  back  empty.  He 
brought  two  loads,  and  returned  for  a 
third,  under  the  same  instructions,  re- 
peated again  and  again  ;  But  Dows'  third 
load  not  being  ready,  instead  of  returning 
empty  as  he  was  directed  to  do,  he  applied 
to  the  plaintiffs  for  a  load,  which  they  fur- 
nished him,  to  be  carried  to  Frankfort,  in 
Herkimer  county.  He  arrived  at  Schen- 
ectady late  at  night.  The  next  moi-ning 
it  was  discovered  that  one  of  the  boxes 
had  been  broken  open,  and  a  part  of  the 
goods  stolen.  The  defendant  disavowed 
all  resi)onsibility  for  the  goods,  l)efore  it 
was  discovered  that  any  of  them  had  been 

[G70] 


taken,  and  declared  that  Asia  had  violated 
his  express  instructions  in  bringing  them. 
Upon  these  facts  the  court  held  that  the 
defendant  was  not  liable.  Sutherkind,  J., 
said :  "  The  defendant  stood  upon  the 
same  footing  as  though  he  had  never  been 
engaged  in  the  forwarding  business.  He 
htid  abandoned  it  entirely  certainly  one 
year,  and,  according  to  the  weight  of  evi- 
dence, four  years  previous  to  this  transac- 
tion. He  makes  a  special  contract  with 
Dows  to  bring  goods  for  him  from  All)any, 
and  gives  his  teamster  express  instructions 
to  bring  goods  for  no  one  else.  He  was 
acting  under  a  special  contract,  and  not 
in  the  capacity  of  a  common  carrier.  Is 
he  then  responsible  for  the  act  of  his  ser- 
vant, done  in  violation  of  his  instructions, 
and  not  in  the  ordinary  course  of  the  busi- 
ness in  which  he  was  employed  1  If  a 
farmer  send  his  servant  with  a  load  of 
wheat  to  market,  and  he,  without  any  in- 
structions from  his  master,  applies  to  a 
merchant  for  a  return  load,  and  absconds 
with  it,  is  the  master  responsible  ?  Most 
clearly  not.  It  was  an  act  beyond  the 
scope  of  the  general  authority  of  the  ser- 
vant; quoad  hoc,  therefore  he  acted  for 
himself,  and  on  his  own  responsibility,  and 
not  for  his  employer."  And  in  Kimball 
V.  The  Rutland  &"Burlington  R.  R.  Co., 
26  Vt.  247,  which  was  an  action  against 
the  defendants,  seeking  to  charge  them  as 
common  carriers  for  the  non-delivery  in 
good  order  of  certain  cattle  put  on  board 
their  cars  by  plaintiff,  at  Brandon,  Vt.,  to 
be  transported  to  Cambridge,  Mass.  It 
was  objected,  that  although  the  defendants 
were  common  carriers  of  passengers' 
freight  and  baggage,  they  were  not  com- 
mon carriers  of  cattle.  But  Isimm,  J., 
who  delivered  the  opinion  of  the  court, 
said  :  "  It  is  immaterial  whether  transpor- 
tation of  cattle  is  regulated  as  their 
(defendants)  principal  employment,  or 
whether  it  is  incidental  and  subordinate; 
the  fact  that  the}'  had  undertaken  such 
transportation  for  hire,  and  for  such  per- 
sons as  chose  to  employ  them,  establishes 
their  relation  as  common  carriers,  and 
with  it  the  duties  and  obligations  that 
grow  out  of  it."  And  see  Russell  (.-.  Liv- 
ingston, 19  Barb.  346.  But  individuals 
engaged  in  the  express  business,  namely, 
in  forwarding  goods  and  packages  from 
place  to  place  for  hire  in  vessels  and  con- 


CH.  XII.] 


BAILMENT. 


*643 


common  carriers;  although  this  seems  to  be  doubted,  (s)  That 
wagoners  and  teamsters  who  carry  goods  from  one  city  to  an- 
other are  so,  is  certain. 

*Proprietors  of  stage-coaches  are  not  common  carriers  of  goods 
necessarily  ;  but  are  so  if  they  carry  goods  other  than  those  of 
their  jDassengers,  usually,  and  hold  themselves  out  as  carrying 
for  all  who  choose  to  employ  them,  (t) 


veyanccs  owned  by  others,  are  not  com- 
mon carriers.  Hersfield  v.  Adams,  19 
Barb.  577. 

(a)  In  Brind  v.  Dale,  8  C.  &  P.  207, 
Lord  Ah'nujer  expressed  the   opinion    at 
Nisi  Prius,  that  a  town  carman,  whose 
carts  ply  for  hire  near  the  wharves,  and 
who  lets  them  by  the  hour,  day,  or  job,  is 
not  a  common  carrier.     The  correctness 
of  this  ojiinion  is,  however,  severely  ques- 
tioned   iiy   Mr.   Justice   Stonj.      "  What 
substantial  di.stinction  is  there,"  says  he, 
"  in  tlie  case  of  parties  who  ply  for  hire  in 
the  carriage  of  poods  for  all  persons  in- 
differently, whether  the  goods  are  carried 
from  one  town  to  another,  or  from  one 
place  to  another  within  the  same  tbwn  1 
Is  there  any  substantial  difference,  whether 
the  parties  have  fixed  <erw/nt  of  their  busi- 
ness or  not,  if  they  hold  themselves  out  as 
ready  and  willing  to  carry  goods  for  any 
persons  what.soever,  to  or  from  any  places 
in  the  same  town,  or  in  different  towns  ?  " 
Sec  Story  on  BaLlni.  ^  490,  n.  1.     So  too, 
the  law  was  expressly  adjudged,  agree- 
ably to  what  we  have  stated  in  the  text, 
in   Kobertson  v.  Kennedy,  2  Dana,  430. 
That  was  an  action  against  the  defendant 
for  the  loss  of  a  hogshead  of  sugar,  which 
he,  as  a  common  carrier,  had  undertaken, 
for  a  reasonable  compensation,  to  carrj^ 
from  the  bank  of  the  river  in  Brandenburg 
to  the  plaintiff's  store  in  the  same  town. 
At  the  trial,  the  plaintiff  introduced  evi- 
dence tending  to  show  that  the  defendant 
had  been  in  the  habit  of  hauling  for  hire, 
in  the  town  of  Brandenburg,  for  every  one 
who   a|)plicd  to   him,  with  an   ox   team, 
driven  by  his  slave  ;  that  he  had  under- 
taken to  haul  for  the  plaintiff  the  hogshead 
in  question,  and  that  after  the  defendant's 
slav(!  had  placed  the  hogsliead  on  a  slide, 
for  the  |)ur])Oseof  haifting  it  to  the  defend- 
ant's store,  the  slide  and  hogshead  slii>ped 
into   the   river,   whereby  ilie   sugar   was 
spoiled.     Under  these  circumstances,  the 
court  /('/(/  that  the  dcfemlant  was  lialjle  as 
a    common    can-icr.     And   Xirhohts,   J., 
said  :  "  Every  one  who  juirsues  the  busi- 


ness of  transporting  goods  for  hire,  for  the 
public  generally,  is  a  common  carrier. 
According  to  the  most  approved  definition, 
a  common  carrier  is  one  who  undertakes 
for  hire  or  reward  to  transport  the  goods 
of  all  such  as  choose  to  employ  him  from 
place  to  ])lace.  Draymen,  cartmen,  and 
portei-s,  who  undertake  to  awry  goods  for 
hire,  as  a  common  employment,  from  one 
part  of  a  town  to  another,  come  within  the 
definition.  So  also  does  the  driver  of  a 
slide  with  an  ox  team.  The  mode  of 
transporting  is  immaterial."  And  in  In- 
gate  V.  Christie,  3  Carr.  &  Kir.  61,  where 
the  defendant,  who  was  a  lighterman, 
carrying  goods  from  wharves  to  ships  for 
anybody  who  employed  him,  was  sued  for 
100  cases  of  figs  lost  by  reason  of  the 
lighter  containing  them  being  run  down 
by  a  steamer,  and  Mr.  Justice  Story's 
opinion,  as  stated  above,  was  cited  fur  the 
plaintiffs,  Alderson,  B.,  said  :  "  Mr.  Justice 
Stoiy  is  a  great  authority,  and  if  we  would 
but  adhere  to  j)rinciple  the  law  would  bo 
what  it  ought  to  be,  a  science.  There 
may  be  cases  on  all  sides,  but  I  will  ad- 
here to  principle  if  I  can.  If  a  person 
holds  himself  out  to  cairy  goods  for  every 
one  as  a  business,  and  ho  thus  carries  from 
the  wharves  to  the  slii])S  in  harbor,  he  is  a 
common  carrier,  and  if  the  defendant  is  a 
common  carrier  he  is  liable  here.  There 
must  be  a  verdict  for  the  plaintiff."  The 
same  rule  was  applied  by  Lord  Camphtll 
to  a  person  who  collected  goods  in  town 
to  go  by  railway,  but  he  himself  carried 
them  only  to  the  railway  station.  IlcUaby 
V.  Weaver,  17  Law  Times  Hep.,  July  8, 
1851,  sittings  in  London  after  Trinity 
term. 

(t)  "If  a  coachman  commonly  carry 
goods,  and  take  money  for  so  doing,  he 
will  be  in  the  same  case  with  a  common 
carrier,  and  is  a  carrier  for  that  jjurpose, 
whether  the  goods  are  a  ])asscnger's  or  a 
stranger's."  Wr . Jours,  J.,  in  Lovett  v. 
Ilobbs,  2  Show.  127.  See  also,  to  flic 
same  point,  Dwight  v.  Ba'wster,  1  Pick. 
50;  Beckman  v.  Sliouse,  5  Kawle,  179; 

[671] 


I 


644* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


*In  the  reign  of  James  I.  the  responsibilities  of  a  common 
carrier  of  goods  by  land  were  held  to  be  applicable  to  a  barge- 
man ;  (m)  and  it  has  been  declared  that  there  is  no  difference 
between  the  carrier  by  land  and  the  carrier  by  water,  [v)  Per- 
haps this  assertion  is  too  broad  ;  but  the  weight  of  authority  in 
this  country  seems  to  have  determined  that  a  common  carrier 
of  goods  by  water  is  responsible  for  all  losses  excepting  those 
caused  by  the  public  enemy,  or  by  those  causes  provided  for  by 
express  contract,  (w)  Canal  boatmen  are  such  carriers,  (x)  and 
cannot  sell   property  sent   by  them  to  market  without  express 


Clark  V.  Faxton,  21  Wend.  153;  Jones 
V.  Voorhces,  10  Ohio,  145  ;  Merwin  v. 
Butler,  17  Conn.  138.  But  in  Sheldon  v. 
Kobiuson,  7  New  Hamp.  157,  it  was  held 
that  the  driver  of  a  stage-coach,  in  the 
general  em]3loy  of  the  proprietors  of  tiie 
coach,  and  in  the  habit  of  transporting 
packages  of  money  for  a  small  comjiensa- 
tion,  which  was  uniform  whatever  might 
be  the  amount  of  the  package,  was  a 
bailee  for  hire,  answerable  for  ordinary 
negligence,  and  not  subject  to  the  respon- 
sibilities of  a  common  carrier;  there  being 
no  evidence  to  show  him  a  common  car- 
rier, further  than  the  foct  that  he  took 
such  packages  of  money  as  were  offered. 
Parker,  J.,  thus  stated  the  grounds  of  the 
decision.  "  It  has  not  been  suggested 
that  the  proprietors  are  liable  in  this  case ; 
and  the  evidence  does  not  show  the  de- 
fendant a  common  carrier.  It  does  not 
show  him  to  have  exercised  the  business 
of  carrying  packages,  as  a  pulslic  emjiloy- 
ment,  because  his  public  employment  was 
that  of  a  driver  of  a  stage-coach,  in  the 
employ  of  others.  It  does  not  show  that 
he  ever  undertook  to  carry  goods  or 
money  for  persons  generally,  although  he 
may  in  fact  have  taken  all  that  was  offered, 
as  a  matter  of  convenience ;  or  that  he 
ever  held  himself  out  as  ready  to  engage 
in  the  transportation  of  whatever  was  re- 
quested, notwithstanding  it  may  have 
been  unusual  [?]  for  him  and  other  drivers 
to  carry  it.  This  was  not  his  general  em- 
ployment, and  there  is  nothing  to  show 
that  he  would  have  been  liable  had  he  re- 
fused to  take  this  money,  especially  as  he 
was  in  the  service  of  another,  and  as  such 
servant  might  have  had  duties  to  perform 
inconsistent  with  the  duty  of  a  common 
carrier.  The  amount  to  be  paid  for  trans- 
portation is   also   to   be   considered.     A 

[672] 


common  carrier  is  an  insurer,  and  entitled 
to  be  paid  a  premium  for  his  insurance. 
There  being  no  evidence  that  any  com- 
pensation was  agreed  on  between  these 
parties,  it  is  to  be  presumed  that  the  usual 
compensation  was  to  be  paid.  The  plain- 
tiff" might  have  relied  on  the  usage  upon  a 
claim  of  payment.  And  as  the  sum  was 
small  and  uniform,  whatever  might  be  the 
amount  of  money,  it  would  seem  very 
clear  that  no  one  committing  a  package 
of  money  to  the  defendant  under  such  cir- 
cumstances, and  without  any  special 
agreement,  could  have  considered  him  an 
insurer  of  safety."  See  also.  Bean  v. 
Sturtevant,  8  New  Hamp.  146. 

(u)  Rich  V.  Kneeland,  Cro.  Jac.  (11 
Jac.  1,)  330,  Hob.  17. 

((')  Per  Bullir,  J.,  in  Proprietors  of 
Trent  Navigation  v.  Wood,  3  Esp.  127,  4 
Doug.  287  ;  and  per  Story,  J.,  in  King  v. 
Shepherd,  3  Story,  360. 

(iv)  Thus,  in  Elliott  v.  Eossell,  10 
Johns.  1,  it  was  held  that  masters  and 
o\^mers  of  vessels,  who  undertake  to  carry 
goods  for  hire,  are  liable  as  common  car- 
riers, whether  the  transportation  be  from 
port  to  ])ort  within  the  State,  or  be3'ond 
sea,  at  home  or  abx-oad ;  except  so  far  as 
they  are  exempted  by  the  exceptions  in 
the  contract  of  charter-party,  or  bill  of 
lading,  or  by  statute.  See  also,  Kemp  v. 
Coughtrv,  1 1  Johns.  107  ;  Crosby  r.  Fitch, 
12  Conn.  410;  Parker  v.  Flagg,  26  Me. 
181  ;  Hastings  v.  Pepper,  11  Pick.  41  ; 
Allen  V.  Sewall,  2  Wend.  327,  6  id.  335 ; 
McArthur  f.  Sears,^!  id.  1 90,  overruling 
whatever  is  contra  in  Aymar  v.  Astor,  6 
Cow.  266. 

(.r)  Harrington  v.  Lylcs,  2  N.  &  McC. 
88;  De  Mott  v.  Laraway,  14  Wend.  225; 
Parsons  v.  Hardy,  id.  215;  Spencer  v. 
Daggett,  2  Verm.  92. 


CH.  XII.] 


BAILMENT. 


*64o-*646 


authority  from  the  owner.  (_?/)  So  are  boatmen  on  our  river:^.(c:) 
Ferrymen  arc  not  common  carriers  of  goods  necessarily  ;  but 
generally  become  so  by  usage,  (a)  And  this,  although  it  be  a 
private  ferry,  not  established  by  the  authority  of  the  State,  (i) 
And  if  it  be  a  public  ferry,  and  the  tolls  are  regulated  by  law, 
and  the  ferryman  is  appointed  by  the  State  executive,  and  gives 
bonds  *with  sureties,  this  does  not  prevent  the  liabilities  of  a 
common  carrier  from  attaching  to  him.  (c) 

Steamboats  are  the  most  common  kind  of  inland  carriers  by 
water  at  the  present  day ;  and  they  are  undoubtedly  coitimon 
carriers  of  goods,  if  they  fall  within  the  general  definition.  But 
they  may  be  carriers  of  passengers  only.  And  they  may  be 
carriers  of  only  one  particular  kind  of  goods  and  merchandise. 
And  where  a  limitation  of  their  business  of  this  kind  is  declared 
by  them,  and  made  known  to  a  party  dealing  with  them,  their 
liability  is  limited  accordingly,  (d)  And  a  steamboat  which  is 
usually  a  common  carrier,  and  is  employed  in  towing  a  vessel, 
is  not  as  to  this  a  common  carrier;  but  is  bound  only  to  ordi- 
nary care  and  skill.(e)     So,  *  where  such  a  steamboat  was  hired 


iy)  Aniold  v.  Halcnbakc,  5  Wend.  33. 

(c)  Gordon  r.  Buchanan,  5  Ycrg.  "I ; 
Turncv  v.  Wilson,  7  id.  341. 

(«)  Smith  V.  Seward,  3  BaiT,  342; 
Ponieroy  v.  Donaldson,  .5  Missouri,  36; 
Cohen  r.  Ilunic,  1  MeCord,  439  ;  Fisher 
V.  Clisl)ee,  \-2  III.  344.  See  a.s  to  tlic  du- 
ties of  ferrynien  in  the  preparation  and 
manatreinent  of  their  boats,  Willouijhliv  v. 
Horriilfic,  16  E.  L.  &  E.  437  ;  White  v. 
Winnisininiet  Co.,  7  Cush.  156. 

(h)  Littlcjohn  v.  Jones,  2  McMuUan, 
36.-). 

{<■)  Bahcoek  v.  Herbert,  3  Ala.  392. 

{(1)  Citizens'  Bank  v.  Nantucket  Steam- 
boat C".  2  Story,  16. 

(r)  This  rule  seems  to  have  been  declared 
for  tlie  lirst  time  by  the  Supreme  Court  of 
New  York,  in  tlie  case  of  Caton  r.  Kiim- 
ney,  13  Wend.  387.  The  same  question 
arose  a^;ain  in  the  same  court,  in  the  case 
of  Alexander  r.  Greene,  3  Hill,  9,  and 
was  decided  the  same  way.  And  I3roii.<on, 
•h,  thus  stated  the  grounds  of  the  decision. 
"  I  think  tlie  defcndauts  arc  not  common- 
carriers.  They  do  not  receive  the  prop- 
erty into  their  custody,  nor  do  they  exer- 
cise any  control  over  it,  other  than  such 

VOL.  I.  57 


as  results  from  the  towing  of  the  boats  in 
which  it  is  laden.  They  neither  employ 
the  master  and  hands  of  the  boats  towed, 
nor  do  they  exerci.sc  any  authority  over 
them  beyond  that  of  occasionally  reipiiring 
their  aid  in  governing  the  flotilla.  The 
goods  or  other  property  remain  in  the  care 
and  charge  of  the  master  and  hands  of 
the  boat  towed.  In  case  of  loss  by  fire  or 
robbery,  without  any  actual  default  on  tlie 
part  of  the  defendants,  it  can  hardly  be 
pretended  that  they  would  be  answerable, 
and  yet  carriers  must  answer  fen-  such  a 
loss."  Tliis  case  afterwards,  however, 
came  before  the  Court  of  Errors,  and  was 
overruled.  7JIill,  533.  But  upon  what 
principle  of  law  cannot  be  learned  from 
the  opinions  delivered.  And  in  the  more 
recent  cases  of  Wells  !•.  Steam  Navigation 
Co.  2  Comst.  207,  in  the  Court  of  Ajipcals 
of  the  same  State,  this  decision  of  the 
Court  of  Erroi-s  is  declared  to  be  of  no 
authority,  and  the  former  decisions  of  the 
Supreme  Court  are  reestablished.  The 
same  rule  is  declared  in  the  case  of  Leon- 
ard r.  Hendrickson,  18  IVnn.  St.  Kep.  40. 
And  C/iamlxr!^,  J.,  says :  "  The  law  of 
liability  of  common  carriers  is  one  of  pub- 

[673] 


646- 


THB   LAW   OF   CONTRACTS. 


[book  III. 


to  take  a  vessel  through  the  ice,  it  was,  in  this  employment,  no 
common-carrier.  (/) 

In  the  reign  of  Charles  II.  it  was  decided  that  a  ship  sailing 
on  the  ocean  may  be  a  common  carrier;  (g-)  and  this  decision 
has  since  been  repeatedly  confirmed  ;  {h)  and  it  was  also  held 
that  an  action  lay  equally  against  the  master  and  owners  of  the 
vessel,  (i)  But  it  is  not  every  ship  that  carries  goods  for  an- 
other than  her  owner  that  becomes  a  common  carrier.  If  the 
owner,  or  hirer,  loads  her  with  his  own  cargo,  and  finding  some 
room  to  spare,  receives  the  goods  of  another  person  to  fill  this 
room,  the  ship  is  no  common  carrier;  nor  is  she,  unless  she  is 
what  is  sometimes  called  a  general  ship ;  that  is,  offered  to  the 
public,  as  ready  to  take  any  goods  of  any  owner  to  the  port  to 
which  she  is  bound.  Common  carriers  by  land  have  usually,  if 
not  always,  a  certain  distinct  route,  not  for  each  particular  jour- 
ney merely,  but  for  all  their  journeys.  That  is,  they  are  estab- 
lished and  known  to  the  public  as  carrying  upon  such  a  line  of 


lie  policy,  and  is  to  be  maintained.  Does 
this  policy  extend  to  the  towing  of  boats 
and  rafts  on  navigable  or  other  waters  ? 
This  exercise  of  power  is  pecnliar  and 
limited.  It  is  generally  for  short  distances, 
under  the  eye  and  observation  *of  the 
owner,  who  niaj',  and  often  docs  accom- 
pany, by  himself  or  his  agents,  the  prop- 
erty that  is  towed  for  him.  If  there  is 
peril  from  the  sudden  rise  of  the  water,  or 
other  unforeseen  danger,  he  may  terminate 
the  conveyance  at  any  point  of  safety  in 
his  opinion.  The  cargo  on  a  canal  boat 
towed  is  property  in  the  care  of  the  con- 
ductors of  such  boat  as  common  carriei's, 
of  which  they  have  the  exclusive  posses- 
sion, and  for  which  they  are  responsible, 
knowing  its  value  and  quality.  The  cap- 
tain or  owner  of  a  boat  undertaking  to 
tow  a  loaded  canal  boat,  we  presume, 
neither  in.-;j3ccts  the  cargo  nor  overhauls  it. 
His  contract  has  reference  to  size,  tonnage, 
and  obstruction,  to  which  the  power  of  his 
boat  is  to  be  applied ;  and  the  connec- 
tion of  his  boat  by  the  chain  or  rope  with 
the  vessel  and  rafts  to  be  conveyed  to  a 
fixed  point,  is  tlie  limited  control  lie  has 
over  the  property  thus  transported.  It 
was  an  apt  illustration  of  tlic  learned  judge 
who  delivered  the  o|)inion  of  the  court  be- 
low, in  saying  :  '  Wherein  does  this  case 
differ  in  principle  from  tiiat  of  a  railroad 

[G74] 


company,  or  the  State  furnishing  locomo- 
tive engines  for  drawing  the  cars  of  indi- 
viduals over  the  road  ?  The  application 
of  steam  power  to  towing  boats,  &c.,  is 
only  distinguishable  from  liorse  power 
where  it  can  be  used  in  tlie  extent  of  the 
power.  Would  it  be  pretended  that  a 
man  who  furnished  horses  and  a  diuver, 
to  tow  a  boat  or  raft,  was  an  insurer  as  a 
common  carrier  for  the  boat  to  be  towed 
and  its  contents'?'"  It  has  been  Md, 
however,  in  Louisiana,  tliat  the  owners  of 
steam  tow-boats  are  liable  as* common  car- 
riers. See  Smith  v.  Pierce,  1  Louis.  349  ; 
Adams  v.  New  Orleans  Steam  Tow-Boat 
Co.  11  Louis.  46.  And  Mr.  Justice  A'«w, 
of  the  United  States  District  Court  for  the 
Eastern  District  of  Pennsylvania,  in  the 
case  of  Vanderslice  r.  Steam  Tow-Boat 
Superior,  13  Law  Reporter,  399,  urged 
very  strongly  the  reasons  for  holding  them 
so  iialde,  but  he  did  not  decide  the  point. 

( f )  Steam  Navigation  Co.  v.  Dan- 
dridge,  8  Gill  &  Johns.  248,  320. 

(ff)  Morse  v.  Slue,  1  Vent.  190,  238. 

(/()  Boucher  v.  Lawson,  Cas.  Temp. 
Hardw.  84,  194;  Boson  v.  Sandford,  1 
Show.  29,  101  ;  Golf !'.  Clinkard,  cited  in 
Dale  V.  Hall,  1  Wils.  282.  See  also  cases 
cited  ante,  p.  644,  n.  (w). 

(i)  See  also,  to  this  point,  Boson  r. 
Landford,  1  Show.  29,  101. 


CH.    XII.]  BAILMENT.  *647 

transit,  and  upon  no  other.  This  is  true  also  of  ships  belong- 
ing to  an  established  packet  line.  Such  ships  would  stand 
upon  the  same  footing  as  ordinary  carriers  by  land,  and  there 
.seems  to  be  no  reason  why  the  same  rules  of  law  should  not 
apply  to  them.  But  there  is  a  con^^iderable  difference  between 
such  a  ship  and  a  general  ship  which  is  put  up  for  a  voyage 
which  she  never  went  before,  and  is  never  to  go  again.  If  the 
question  were  wholly  unsettled,  it  might  perhaps  be  doubted 
*whether  such  vessel  becomes  a  common  carrier ;  for  if  she 
does,  it  can  hardly  be  denied  that  she  is  bound  to  take  goods 
of  any  one  who  offers  them.  Bat  the  distinction  between  a 
regular  packet  ship  and  a  general  freighting  ship  for  a  particu- 
lar voyage  does  not  seem  to  have  been  taken  by  the  courts. 
Still,  it  is  usual  in  all  ships,  for  the  master  to  give  a  bill  of  lad- 
ing for  goods  received,  by  which  he  engages  to  deliver  them  to 
the  order  of  the  party  from  whom  he  receives  them,  certain 
risks  excepted.  This  ancient  document,  in  almost  universal 
use  among  mercantile  nations,  undoubtedly  determines  the 
rights  and  duties  of  the  parties,  so  far  as  it  affects  them.  Thus 
it  usually  excepts  "the  perils  of  the  sea;"  and  then  the  ship  is 
not  responsible  for  a  loss  by  one  of  these  perils,  although  it 
could  not  be  referred  to  the  "  act  of  God."  (J)  And  if  other  ex- 
ceptions were  introduced,  they  would  limit  the  liability  accoj-d- 
ingly.  So  also  if  a  ship  is  hired  by  a  charter  party,  to  carry 
goods  for  the  hirers  on  a  certain  voyage,  or  a  certain  time,  and 
upon  certain  terms,  this  charter  determines  the  relation  of  the 
parties,  and  their  rights  and  responsibilities,. and  not  the  law  of 
common  carriers. 

Railroad   companies    have    carried    goods    but    for   a   short 
period  ;    but    wherever    they    are    established    they    supersede 

(  /)  As  to  what  losses  come  witliin  tlic^  Tliurlkill,  12  S.  &  M.  599  ;  The  Reljccca, 

cxcfptioii  of  "perils  of  tlic  sea,"  sec  the'  Wiire,  188,  i210;  Van  Syekcl  r.  The  Ew- 

foUdwiii^'  cases.      Williams   v.  Grant,   1  in;:,  Crahho,  4U3  ;  Tiio  Newark,  1  IJlatcli. 

Conn.  487;  McArtiuirr.  Sears,  21  Wend.  20;3  ;  Clark   r.   IJarnwell,    12    How.  272; 

190;  riaisted   r.  H.  &  K.  Steam  Xavi^M-  Kieh  v.  Lamhert,   12   How.   ;J47.     As   to 

tion  Co.  27  Maine,  132;  The  Uri;^  Casco,  lats,  Laveroni   v.  Drury,  IG  E.  L.  &  E. 

Daveis,   184;     Gordon    v.   Buchanan,    5  510.     As   to   the    exception    of    loss    hy 

Yerp.   71  ;    Turney  c.  Wilson,    7    Ycr^.  "  robhcrs,"  or  "  daiifroi-s   of  the   roads," 

340;  duller  v.   Ei.<Iicr,  3  Esp.   07;  The  .sec  De  liothschild  i-.  K.  M.  Steam  I'ack- 

Schooner  lleeside,  2  Sumn.  507  ;  Kin;,'  r.  ct  Co.  14  E.  L.  &  E.  327. 
Shepherd,  3  Story,  349  ;    Whitesides  v. 

[  G7o  ] 


I 


648*-649* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


almost  all  other  modes  of  conveyance;  they  exist  expressly  to 
carry  goods  and  passengers ;  their  termini  and  routes  are  def- 
initely fixed ;  they  advertise  for  freight,  offering  to  the  public 
the  terms  on  which  they  will  receive.  It  seems  strange  that  a 
doubt  whether  they  were  common  carriers  could  have  existed  ; 
that  they  are,  is,  however,  abundantly  settled  by  authority,  (k) 
But  there  are  some  peculiarities  in  the  law  which  regulates 
their  liabilities,  which  we  shall  speak  of  hereafter. 


*SECTION    VII. 

obligations  of  a  common  carrier. 

A  private  carrier  *nay  or  may  not  carry  for  another,  as  he 
prefers.  But  a  common  carrier  is  bound  to  receive  and  carry 
all  the  goods  offered  for  transportation,  subject  to  all  the 
responsibilities  incident  to  his  employment ;  and  is  liable  to  an 
action  in  case  of  refusal.  (/)  But  he  is  entitled  to  his  pay  ;  he 
may  demand  it,  and  if  it  be  refused,  he  may  refuse  to  carry  the 
goods.  The  owner  of  the  goods  may  tender  him  the  freight- 
money;  or,  if  the  money  is  not  demanded  by  the  carrier,  he 
may  aver  and  prove  that  he  was  ready  and  willing  to  pay  the 
freight-money ;  and  this  will  be  equivalent  to  a  tender,  (m) 
Payment  of  the  fare  has  been  inferred  without  *proof,  from  the 


(Jc)  Sec  Thomas  v.  B.  &  P.  Kailroad 
Co.  10  Met.  472 ;  Pickford  v.  Grand 
Junction  Railway  Co.  8  M.  &  W.  372  ; 
Norway  Plains  Co.  v.  Boston  &  Maine 
Railroad,  1  Gray,  263.  They  are  not, 
however,  common  carriers  of  goods  by 
their  passenger  trains,  and  evidence  of 
one  or  two  instances  in  which  they  have  so 
carried  will  not  prove  that  they  intended  to 
hold  themselves  out  as  such  carriers,  but 
the  presumption  will  be  that  the  goods 
were  carried  in  this  manner  for  temporary 
coilvenicnce  only.  Elkins  v.  Boston  & 
Maine  Railroad,  3  Fost.  275. 

(/)  Lane  v.  Cotton,  12  Mod.  472,  484  ; 
Jackson  v.  Rogers,  2  Show.  327  ;  Johnson 
V.  Midland  Railway  Co.  4  Exch.  367  ; 
Pickford  v.  The  Grand  Junction  Railway 
Co.  8  M.  &  W.  372. 

[676] 


(?n)  Pickford  v.  The  Grand  Junction 
Railway  Co.  8  M.  &  W.  372.  So  if  the 
carrier  demands  payment  before  he  re- 
ceives the  goods,  and  demands  a  larger 
sum  than  ho  is  entitled  to  receive,  the 
owner  of  the  goods  may  pay  him  such  sum 
as  he  demands,  under  protest,  and  recover 
back  the  excess  in  an  action  for  money 
had  and  received.  And  to  entitle  him  to 
recover  in  this  action,  it  is  not  necessary 
that  he  should  make  a  tender  to  the  car- 
rier of  such  sum  as  he  is  entitled  to  I'eceivc. 
Parker  r.  The  Great  Western  Railway 
Co.  7  M.  iS:  Gr.  253,  8  E.  L.  &  E.  426 ; 
Edwards  v.  The  Great  Westci-n  Railway 
Co.  8  E.  L.  &  E.  447 ;  Crouch  v.  The 
London,   &c..  Railway  Co.   2  Car.  &  K. 

789  ; V.  Pigott,  cited  in  Cartwright 

V.  Rowley,  2  Esp.  723;  Parker  v.   The 


en.  XII.] 


BAILMENT. 


-649 


mere  usage  to  pay ;  (71)  but  we  doubt  whether  this  could  safely 
be  adopted  as  a  general  rule. 

It  is  a  good  excuse  for  the  carrier's  refusal  that  his  carriage 
was  full,  (o)  or  that  the  goods  would  endanger  him,  or  incur 
themselves  extraordinary  danger,  (/?)  or  are  not  such  as  he  carries 
in  the  known  and  usual  course  of  his  business ;  ((7)  or  that  he 
cannot  at  the  time  and  in  the  way  proposed  receive  th6m  with- 
out unreasonable  loss  and  inconvenience.  And  he  is  not 
obliged  to  receive  them  until  he  is  ready  to  set  forth  on  his 
route,  (r) 


Bristol,  &c.,  Railway  Co.,7  E.  L.  &  E.  528. 
The  same  rule  iiokls  where  the  carrier, 
not  having  received  his  paj'  in  advance, 
nor  made  any  special  agreement,  refuses 
to  redeliver  the  goods  at  the  end  of  his 
transit  until  he  is  paid  a  larger  sum  for 
the  carriage  than  he  is  entitled  to  receive, 
Thus  in  Ashniolc  v.  Wainwright,  2  Q.  B. 
837,  the  defendants,  common  carriers,  re- 
fused to  re-deliver  the  jilaintiff's  goods, 
which  they  had  carried  for  him,  except  on 
payment  of  £5  5s.  charges.  He  insisted 
that  he  was  not  liable  to  pay  any  thing ; 
but,  ultimately,  the  defendants  having  said 
that  they  would  take  nothing  less  than  the 
whule  sum,  he  j)aid  the  whole  to  regain 
his  goods,  protesting  tliat  he  was  not 
liable  to  pay  any  thing,  and  that,  if  he 
was  liable,  the  charge  was  exorbitant. 
He  had  not  tendered  or  named  any  smaller 
sum.  Afterwards,  without  Jiaving  de- 
manded the  return  of  any  suri)lus,  he 
brought  assumjisit  for  money  had  and  re- 
ceived, claiming  by  his  particular  the 
whole  sum,  as  having  been  ])aid  iu  order 
to  obtain  possession  of  his  goods,  under 
protest  that  he  was  not  liable  to  ])ay  the 
same,  or  any  part  thereof,  or,  if  he  was 
liable  to  i)ay  some  jiart,  that  the  sum  was 
exorbitant.  The  jury  having  found  that 
the  defendant  was  entitled  to  charge  CI 
10s'.  G(/.,  the  court  held  that  the  idaiutiff 
was  entitled  to  recover  the  ditt'erencc  in 
this  form  of  action  ;  and  that  it  was  not 
necessary  to  his  right  of  recovery  that  he 
should  have  tendered  any  specilic  sum. 
But,  sonlile,  ))er  Poltcsoii,  J.,  that  if  a  party, 
simply  denying  that  any  thing  is  due, 
tenders  si  simi  which  is  accepted,  but  which 
exceeds  the  sum  legally  (lemaudable,  he 
cnmot  recover  back  the  excess.  This  case 
was  doubted  by  I'ollucl-,  C.  B.,  in  the 
late   case  of  Barker  r.   The  Bristol,  &c., 

57* 


Kailway  Co.  7  E.  L.  &  E.  528,  on  the 
ground  that  the  action  for  money  hr.d  and 
received  must  be  brought  for  a  definite, 
clear,  and  certain  sum,  and  not  for  some 
unknown  sum,  which  is  to  depend  upon 
the  verdict  of  the  jury,  who  are  to  decide 
whether  the  defendant  has  received  the 
money  or  not.  He  stated,  however,  that 
the  doubt  belonged  exclusively  to  his  own 
mind,  and  not  to  that  of  the  rest  of  the 
court,  who  were  satisfied  with  the  decision, 
and  altogether  agreed  with  it,  not  merely 
as  a  binding  authority,  but  as  agreeable  to 
their  own  opinion  and  judgment. 

(?0  McGill  r.  Bowand,  3  Barr,  451. 

(o)  Lovett  V.  Ilobbs,  2  Show.  127.  But 
not,  it  seems,  if  he  has  issued  a  ticket  for 
the  journe}'  and  has  put  no  condition  to 
his  liabilitv.  Hawcroft  v.  Great  Northern 
Kailwav  Co.  8  E.  L.  &  E.  .'^62. 

{p)  Edwards  r.  Sherrat,  1  East,  604; 
Bate  V.  Henry,  5  Stew.  &  Bort.  101.  But 
where  to  an  action  against  the  defendants 
as  common  carriers  for  refusing  to  carry  a 
package  of  the  plaintiff',  the  defendants 
pleaded  that  when  the  package  was  ten- 
dered they  re(]uestcd  the  |)laiutitl"  to  inform 
them  of  its  contents,  and  that  the  plaintiff 
refused  to  do  so,  wherefore  and  i)ecausc 
the  defendants  did  not  know  what  the 
package  contained,  they  refused  to  receive 
and  can-y  it ;  the  plea  was  held  bad,  for 
that  a  carrier  has  no  general  right  in  any 
case  and  under  all  circumstances  to  require 
to  be  informed  of  the  contents  of  jiackagcs 
tendered  to  them  to  be  carried. 

{(j)  Sewall  V.  Allen,  0  Wend.  335  ;  Tun- 
ncll  V.  Bettijohn,  2  Harring.  48  ;  Citizens 
Bank  r.  Nantucket  Steaudmat  Co.  2  Story, 
10  ;  Johnson  r.  The  Midland  Bailwav  Co. 
4  Exch.  367. 

(;•)  Lane  v.  Cotton,  1  Ld.  Raym.  640, 
652,  1  Com.  100,  105. 

[G77] 


650*-651* 


THE   LAW   OF   CONTRACTS. 


[book  hi. 


A  common  carrier  may  make  what  contract  he  will  as  to  his 
compensation ;  but  a  tender  of  his  usual,  or  of  a  reasonable 
compensation,  obliges  him  to  carry ;  (s)  and  when  he  carries 
without  special  agreement,  this  is  all  the  compensation  he  can 
recover.  In  the  absence  of  special  agreement,  he  must  treat  all 
persons  alike ;  and  where  required  by  statute  to  make  reason- 
able and  equal  charges  against  all,  he  cannot  by  by-laws  or 
rules  discriminate  as  to  amounts  or  modes  of  computation 
between  persons  according  to  their  occupations,  but  must  carry 
the  same  amount,  the  same  distance,  for  the  same  price,  for  all 
persons,  (t) 


*SECTION    VIII. 

WHEN   THE   RESPONSIBILITY   BEGINS. 

As  soon  as  the  goods  are  delivered  and  received,  they  are  at 
the  risk  of  the  carrier.  This  reception  of  them  may  be  specific 
or  general,  and  according  to  the  usage  of  his  business  ;  and  it 
may  be  actual  or  constructive,  (w)  But  the  delivery  to  the  car- 
rier is  not  complete  if  the  goods  are  still  in  charge  of  the  owner 
or  his  representative  ;  the  delivery  must  place  the  goods  in  the 
custody  of  the  carrier,  (f)      The  *  delivery  to  a  ship  is  complete 


(s)  Harris  v.  Packwood,  3  Taunt.  264. 

(t)  Pickford  v.  Grand  Junction  Railway 
Co.  10  M.  &  W.  399  ;  Parker  v.  Great  Wes- 
tern Railway  Co.  7  M.  &  Gr.  253,  8  E.  L. 
&  E.  42G ;  Edwards  v.  Great  Western 
Railway  Co.  8  E.  L.  &  E.  447  ;  Crouch 
V.  The  London,  &c.,  Railway  Co.  2  Car.  & 
K.  789. 

(u)  Merriam  v.  The  Hartford,  &c.,  Rail- 
road Co.  20  Conn.  354. 

(v)  Brind  v.  Dale,  8  C.  &  P.  207.  It 
frequently  becomes  a  difficult  question  of 
fact  whether  floods  have  heen  so  delivered 
to  a  carrier  as  to  he  in  his  custody  and  un- 
der his  control,  or  whether  they  still  con- 
tinue under  the  control  of  the  owner  or  his 
servant.  There  arc  several  cases  in  the 
books  which  have  turned  upon  this  ques- 
tion. Thus,  in  the  case  of  the  East  India 
Co.  V.  PuUcn,  Strange,  690,    an   action 

[678] 


was  brought  against  the  defendant  as  a 
common  carrier,  on  an  undertaking  to 
carry  for  hire  on  the  River  Thames,  from 
the  ship  to  the  company's  warehouses. 
It  appeared  in  evidence  that  the  defendant 
was  a  common  lighterman,  and  that  it 
was  the  usage  of  the  companj-,  on  the  nn- 
shi[)ping  of  their  goods,  to  put  an  officer, 
who  was  called  a  guardian,  into  the 
lighter,  who,  as  soon  as  the  lading  wa.s 
taken  in,  put  the  company's  locks  on  the 
hatches,  and  went  with  the  goods  to  see 
them  safely  delivered  at  the  warehouse. 
It  appeared  that  such  was  the  course  in 
this  case,  and  part  of  the  goods  were  lost. 
Ujiou  tliis  evidence,  Rai/niond,  C.  J.,  was 
of  the  opinion  that  "  this  differed  from  tiie 
common  case,  this  not  ))eing  any  trust  in 
the  defendant,  and  the  goods  were  not  to 
be  considered  as  ever  having  been  iti  his 


CH.  XII.] 


BAILMENT. 


-651 


when  the  master  or  mate,  or  other  agent  of  the  owner,  receives 
them,  either  at  the  ship  or  on  the  wharf,  or  in  a  warehouse,  if 
such  delivery  and  receipt  be  according  to  the  usage.  And  the 
owners  of  the  ship  forthwith  become  insurers  as  to  all  but  tiie 
cases  excepted  by  law,  or  by  the  bill  of  lading,  (w)     Delivery 


possession,  but  in  the  possession  of  the 
company's  servant,  who  had  hired  the 
lif^hter  to  use  iiiinself."  Tlie  phiintiffwas 
accordinfrl}'  nonsuited.  So  in  the  kite 
case  of  Tower  v.  Tlie  Utica,  &c.,  Kaih-oad 
Co.  7  Hill,  47,  where  an  action  was  brought 
to  charge  a  railroad  company  as  common 
carriers,  for  the  loss  of  an  overcoat  belong- 
ing to  a  passenger,  and  it  appeared  that 
the  coat  was  not  delivered  to  the  defend- 
ants, but  that  the  ])assengcr,  having  placed 
it  on  the  seat  of  the  car  in  which  he  sat, 
forgot  to  take  it  with  him  wiien  he  left, 
and  it  was  afterwards  stolen  ;  it  was  held 
that  the  (h'feinlants  were  not  liable.  And 
Nelson,  C.  J.,  said  :  "The  overcoat  was 
not  delivered  into  the  possession  or  custody 
of  the  defendants,  which  is  essential  to 
their  lial>ility  as  carriers.  Being  an  arti- 
cle of  wearing  ap])arel  of  present  use,  and 
in  the  care  and  keeping  of  the  traveller 
himself  fur  that  purpose,  the  defendants 
have  a  right  to  say  that  it  shall  be  regarded 
in  the  same  light  as  if  it  had  been  upon 
Ins  ])ersou.  No  carrier,  however  discreet 
and  vigilant,  would  think  of  turning  liis 
attention  to  projjcrty  of  the  ])assenger 
in  the  situation  of  the  article  in  rpiestion, 
or  imagine  tliat  any  res|)onsibility  attached 
to  him  in  respect  to  it."  On  the  other 
liand,  in  IJobiuson  v.  Duimiore,  '2  li.  &  V. 
41 G,  it  appeared  in  evidence  that  the 
plaintiff,  who  was  an  upholsterer,  having 
occasion  to  send  some  furniture  into  the 
country,  agreed  witli  the  dcfeu<lant  to 
take  the  same;  thattlie  defcudaiit  lirought 
his  cart  to  the  jjlaiutiff 's  house,  where  the 
goods  were  loaded  in  the  [)resencc  of  the 
plaintiff'  himself,  and  with  the  assistance 
of  two  of  the  plaintiff's  servants;  that  the 
jilaintiff  having  ol)served  that  the  tarpau- 
lin which  the  (lefcndant  Iiad  brought  for 
the  purjinse  of  covering  the  cart  was  too 
small,  the  defendant  said,  "  1  have  ])lenty 
of  sacks,  and  I  will  warrant  tlie  goods 
shall  go  safe  ;  "  that,  on  account  of  the  de- 
fendant's lieing  a  stranger  to  the  plaintiff, 
the  latter  seiit  one  of  his  own  porters  with 
the  cart,  who  would  otherwise  have  gone 
by  the  stage  ;  that  this  porter  in  the  cf)urse 
of  tlie  journey,  paid  a  person  for  watching 


the  goods  one  night ;  and  that  the  goods 
in  the  course  of  the  journey  were  damaged 
by  rain.  Upon  these  facts,  the  jury,  un- 
der the  direction  of  Lord  Eldon,  before 
whom  the  case  was  tried,  found  a  verdict 
for  the  plaintiff".  And  a  rule  uini  having 
been  obtained  for  setting  this  verdict  aside 
and  entering  a  nonsuit,  Chumhre,  J.,  said  : 
",  This  is  a  very  clear  case.  The  defend- 
ant is  not  a  counnon  carrier  by  trade,  but 
has  put  himself  into. the  situation  of  a  com- 
mon carrier  by  his  particular  warranty. 
As  to  possession,  that  seems  clearly  proved 
by  the  circumstances  of  the  case ;  the  de- 
fendant attends  with  his  horse  and  cart  at 
the  ])laintitf 's  house,  where  the  goods  are 
delivered  to  him  and  put  into  the  cart  by 
the  plaintiff's  servants.  This  is  a  com- 
plete possession.  IIow  is  this  affected  by 
the  presence  of  the  plaintiff's  servant  ?  It 
has  been  determined  that  if  a  man  travel 
in  a  stage-coach,  and  take  bis  ]iortmantcau 
with  him,  though  he  has  his  eye  upon  the 
jjortmanteau,  yet  the  carrier  is  not  ab- 
solved from  his  responsibility,  but  will  be 
liable  if  the  portmanteau  be  lost.  In  this 
case  the  plaintilf,  for  greater  caution,  sends 
his  servant  with  the  goods,  who  ]iays  for 
watching  them,  because  he  apprehends 
danger  of  their  being  stolen.  So  the  man 
who  travels  in  a  stage  has  some  care  of 
his  own  i)roi)erty,  since  it  is  more  for  his 
interest  that  the  i)roperty  should  not  be 
lost  than  that  he  should  liave  an  action 
against  the  carrier.  This  case  bears  no 
resemblance  to  that  cited  from  Strange, 
for  there  the  decision  proceeded  on  tlic 
usage  of  the  East  India  Company,  who 
never  intrust  the  lighterman  with  their 
goods,  but  give  the  whole  charge  of  the 
pro])erty  to  one  of  their  own  oliiecrs,  wlio 
is  called  a  guardian."  The  rule  was  ac- 
cordingly discharged.  See  also,  Kichards 
c.  The  London,  v^e.,  Kailway,  7  C.  B.  8."^!'.) ; 
White  r.  Wiimisimmct  Co.  7  Cush.  155; 
Mavbin  v.  Kailroad  Co.  8  Kicli.  Law, 
241'. 

(h)  Cobban  v.  Downc,  5  Esp.  41.    But 

a  tielivery  to  any  of  the  civw  is  not  sufH- 

cii'ut,  they    not    being  authorized    agents 

for  that  purpose.     Leigh  r.  Smith,  1  C.  & 

[079] 


652' 


THE    LAW    OF    CONTRACTS. 


[book   III. 


may  be  made  in  a  different  way,  or  at  a  different  time  or  place, 
from  that  which  is  usual,  or  notified  to  the  public;  such  differ- 
ence being  requested,  or  suggested  by  the  carrier,  or  his  agent, 
or  sanctioned  by  him  by  receiving  the  goods  without  objection, 
and  entering  them  on  the  way-bill,  (x)  The  responsibility  *of 
the  carrier  is  fixed  by  his  acceptance  of  the  goods  without  objec- 
tion, whatever  be  the  manner  of  the  delivery.  Nor  is  it  neces- 
sary to  complete  the  delivery  that  the  goods  should  be  entered 
on  the  way-bill  or  freight-list,  or  any  written  memorandum 
made.  (?/) 

The  same  person  may  be  a  common  carrier  and  also  a  ware- 
house-man, or  an  innkeeper,  or  a  wharfinger,  or  a  forwarding- 
merchant.  And  goods  may  be  delivered  to  him  and  lost  under 
circumstances  which  would  render  him  liable  if  he  received  them 
as  a  carrier,  but  not  if  he  received  them  in  another  capacity, 
the  loss  not  having  occurred  through  his  negligence.  And  it  is 
sometimes  quite  difficult  to  determine  in  what  capacity  the 
goods  were  received,  (z) 


P.  638.  And,  generally,  a  delivery  to 
a  sci-vant  of  the  carrier  must  be  to  one 
authorized  to  receive  the  goods.  There- 
fore, wlicre  the  plaintiff  delivered  a  jjack- 
ago  to  tlie  driver  of  a  coaeh,  who  had  no 
authority  to  receive  and  enter  it  on  the 
way-bill,  but  consented  to  carry  it  on  to 
the  next  agent  and  have  it  entered  ;  it  was 
held  to  be  no  delivery  to  the  carrier. 
Blanchard  v.  Isaacs,  3  Barli.  388.  The 
master  of  a  vessel  cannot  liind  the  owner 
by  a  bill  of  lading  for  goods  not  actually 
put  on  board.  Grant  v.  Norway,  2  E.  L. 
&  E.  337  ;  Ilubbcrstv  v.  Ward,  18  E.  L.  & 
E.  551  ;  Coleman  u.'Eiches,  29  E.  L.  &  E. 
323. 

(x)  Therefore,  wliere  a  package  was  de- 
livered to  the  agent  of  a  stage-coach  com- 
pany, at  tlic  post-office,  where  the  stage 
was  standing,  and  not  at  the  office  of  the 
company,  to  be  carried  from  Boston  to 
JIartford,  and  was  by  the  agent,  when  he 
received  it,  entered  on  the  way-bill,  he 
having  previously  directed  tlie  person  who 
had  the  care  of  the  package  to  bring  it  to 
the  post-office  ;  and  the  package  was  lost 
before  leaving  Hartford  ;  it  was  held  that 
the  owners  of  the  coach  were  liable  to 
the  owner  of  the  package  for  its  value,  tlic 
delivcrv  at  the  post-office  being  witii  the 

[680] 


assent  of  their  agent.  Phillips  v.  Earle, 
8  Pick.  182.  See  also  Pickford  v.  The 
Grand  Junction  Railway  Co.  12  M.  &  W. 
76G. 

(»/)  Citizens  Bank  v.  Nantucket  Steam- 
boat Co.  2  Story,  10,  35. 

{z)  Sec  the  ca.se  of  Roberts  v.  Turner, 
12  Johns.  232,  cited  and  stated  fully  ante, 
p.  G18,  n.  ((/).  Tlic  point  considered  in 
that  case  came  under  discussion  again  in 
the  late  case  of  Teal  v.  Sears,  9  Barb.  317. 
It  was  an  action  on  the  case  against  tlie 
defendants  as  common  carriers,  to  recover 
for  the  loss  of  a  case  of  goods.  The  facts 
were  as  follows  :  On  the  Cth  of  October, 
184G,  the  plaintiffs  shipped,  at  Albany, 
three  cases  of  goods  for  Buffalo,  on  a 
canal  boat.  A  bill  of  lading  was  made 
out  by  the  plaintiffs,  and  forwarded  by  the 
captain  of  the  canal  boat,  with  directions 
to  deliver  the  goods  in  the  bill  as  ad- 
dressed, and  collect  the  charges  for  trans- 
porting on  the  canal.  The  three  cases 
were  marked  on  the  bill,  "  A.  B.  Case, 
Chicago,  by  vessel,  care  of  Sears  &  Griffith, 
Buffalo."  The  cases  were  received  by 
Sears  &  Griffith,  (the  defendants,)  at  Buf- 
falo, on  the  14th  of  October,  and  they 
jiaid  the  canal  charges,  indur.'^ing  a  receipt 
therefor,  and  a  memorandum  of  the  receipt 


CH.    XII.] 


BAILMENT. 


653 


The  principle  Avhich  governs  these  cases  may  be  stated  thus. 
If  the  transportation  be  the  chief  thing,  and  the  deposit  of  the 
goods  on  a  wharf  or  in  a  building  be  for  a  short  time  only,  and 
merely  incidental  to  the  transportation,  and  the  owner  of  the 
goods  relinquishes  them  entirely  when  they  are  so  deposited, 
then  they  are  so  delivered  to  the  common  carrier  in  that  capac- 


of  the  goods,  on  the  bill  of  lading.  The 
defendants  were  at  the  time,  engaged  in 
the  forwarding  and  commission  business 
at  B.  That  was  their  principal  business, 
but  they  were  interested  to  sonic  extent  in 
a  transporting  line  on  the  canal,  and  also 
in  at  least  one  vessel  carrying  freight  upon 
the  lakes.  On  the  17th  October,  tlie  de- 
fendants shipped  the  goods  on  board  the 
schooner  C,  a  transient  vessel  which  ran 
between  Buffalo  and  Chicago,  in  which 
tliey  had  no  interest.  They  took  the  cap- 
tain's receipt,  and  made  a  bill  of  lading 
for  the  goods,  agreeing  with  the  captain 
as  to  the  amount  of  freight  he  should  re- 
ceive. The  vessel  was  a  good  one,  and 
her  captain  in  good  credit.  One  of  the 
cases  of  goods  was  lost  before  arriving  at 
Chicago.  Upon  tliese  facts  the  court  held, 
1.  That  the  legal  import  of  the  memoran- 
dum was  not  that  the  goods  should  be 
stored  at  Buffalo,  and  that  the  defendants 
should  act  as  agents  of  the  plaintiffs  in 
procuring  a  can-ier  of  them  from  Bulialo 
to  Chicago ;  but  that  they  were  consigned 
to  the  defendants  at  B.,  with  a  request  or 
direction  that  they  should  be  carried,  by 
vessel,  from  B.  to  Chicago.  2.  That  the 
defendants,  receiving  the  goods  with  the 
accompanying  memorandum,  and  trans- 
porting or  causing  the  same  to  be  trans- 
ported, by  vessel,  to  Chicago,  were  to  be 
regarded  as  impliedly  contracting  to  carry ; 
and  upon  such  a  receipt  the  risk  of  a  carrier, 
and  not  that  of  a  warehouse-man  or  for- 
vardcr,  attached.  Roberts  r.  Turner 
having  been  cited  for  the  defendants, 
Wriijht,  J.,  who  delivered  the  opinion  of 
the  court,  thus  endeavored  to  distinguish 
the  two  cases :  "  We  are  referred  to 
Eoborts  V.  Turner,  12  Johns.  2.32,  as  con- 
trolling this  case.  That  case  was  decided 
in  1S15.  But  without  referring  to  the  act- 
ual condition  of  the  l)usiness  of  the  coun- 
try since  tliat  de<'ision,  the  case  is  distin- 
guishalile  from  tlie  present.  In  that  the 
whole  facts  showed  tliat  Turner  acted  but 
as  a  forwarder  of  the  goods.  lie  kept  u 
store  at  Utica,  where  produce  was  left  by 
the  public  to  be  fonvarded  by  boats  or 


wagons  to  Albany.  He  had  no  interest 
in  tlic  boats  or  wagons.  The  plaintiff 
knew  when  his  ashes  were  left  to  be  sent 
to  Albany  that  Turner's  only  business,  in 
relation  to  the  can'iage  of  goods,  consisted 
in  forwarding  them.  This  was  also  un- 
derstood by  the  public;  and  that  without 
any  concern  in  the  vessels  by  whicii  the 
goods  were  fonvarded,  or  any  interest  in 
the  freight,  they  were  stored  with  him 
merely  for  the  purpose  of  fonvarding  by 
others ;  he  taking  upon  himself  the  ex- 
penses of  transportation,  for  which  lie 
received  a  compensation  from  the  owners 
of  the  goods.  But  this  was  not  the  posi- 
tion of  the  defendants  in  the  present  suit. 
They  were  in  a  measure  engaged  in  the 
canying  business  and  were  interested  to 
some  extent  in  vessels  on  the  canal  and 
lakes.  Tliey  kept  a  public  office  for  the 
transaction  of  their  business,  at  a  place  of 
transshipment,  receiving  and  carrying  all 
goods  that  might  be  directed  to  tiieir  care, 
in  their  own  vessels  when  convenient,  and 
in  such  other  vessels  as  they  could  employ 
on  terms  most  advantageous  to  themselves. 
They  received  the  goods  in  question  di- 
rected to  them,  which  were  destined  west 
on  tlie  lakes.  They  eni])loyed  a  vessel  to 
carry  them  forward,  making  out  a  new 
freight-bill,  and  returning  the  old  one  and 
for  themselves  taking  the  captain's  receipt 
for  the  goods.  Persons  ostensibly  en- 
gaged as  forwarders  have,  in  this  State, 
become  numerous,  and  their  business  com- 
plicated and  extensive.  The  rigid  rules 
of  the  conmion  law  make  the  canner 
assume  the  liability  of  an  insurer  of 
property,  wliilst  the  warehouse-man  and 
fonvardcr  are  but  answcralile  as  bailees, 
for  ordinary  neglect.  Tiie  law  distinctly 
defines  the  i)usiness  of  eacii,  an<l  their 
liabilities.  Wliilst  the  wareliouse-man 
confines  himself  to  the  receipt  and  storage 
of  goods,  for  a  compensation,  and  a  for- 
warder to  the  receipt  of  goods,  and  the 
fonvarding  of  them  by  a  carrier  other 
tlian  himself,  in  good  credit  and  in  safe 
vessels,  they  only  assume  the  liability  of 
depositaries    for    hire.      But    if,    calling 

[  C-^1  ] 


654* 


THE  LAW   OF  CONTRACTS. 


[book   III. 


ity,  and  he  is  liable  for  them  accordingly,  (a)  Thus,  most  car- 
riers have  a  receiving-office,  or  depot,  or  station.  However 
such  a  place  be  called,  goods  once  delivered  and  received  there  are 
as  much  at  the  risk  of  the  carrier  as  if  they  were  packed  in  the 
wagon  or  car,  and  in  actual  motion,  (b)  But  if  they  are  de- 
posited even  in  such  receiving-office,  with  orders  not  to  transport 
them,  but  to  let  them  lie  until  further  instructions  shall  be  given 
by  the  *  owner,  the  carrier  has  not  received  them  for  carriage ; 
or,  in  other  words,  he  has  not  received  them  as  a  carrier,  but  only 
as  a  depositary,  (c)  As  soon  as  final  instructions  to  transport  the 
goods  were  received  by  the  carrier,  perhaps  his  liability  in  that 
character  would  begin.  But  not  if  the  goods  had  been  pre- 
viously deposited  there,  for  a  distinct  time,  and  an  independent 
purpose.  In  such  case  the  order  to  carry  would  have  no  further 
operation  than  an  order  by  an  owner  to  carry  goods  in  the 
owner's  possession.  It  attaches  no  liability  until  the  order  is 
executed,  or  begins  to  be  executed.  So,  if  goods  are  deposited 
with  one  who  is  a  carrier,  but  distinctly  for  the  purpose  of  ware- 
housing them,  the  depositary  is  answerable  only  for  negligence ; 
and  if  afterwards  he  is  ordered  to  carry,  and  undertakes  to  carry 
the  same  goods,  his  peculiar  liability  as  carrier  does  not  begin 
until  he  begins  to  carry,  or  moves  the  goods,  or  prepares  them 
for  carriage,  taking  them  as  it  were  anew  into  his  possession  for 
this  specific  purpose. 

The  delivery  to  a  carrier  must  be  known  to  the  carrier,  in 
order  to  create  a  responsibility  on  his  part,  {d)  If  goods  are 
left  in  his  depot  or  receiving  office,  with  no  notice  to  him,  and 
no  knowledge  by  him,  he  is  not  then,  in  general,  bound  to  any 
care  or  charge  of  them.  But  usage,  or  terms  made  public  by 
advertisement,  might  raise  such  an  obligation,  (e)     As  if  he 


themselves  forwarders,  they  so  aet  and 
conduct  their  business  as  to  lead  the  pub- 
lic to  rcp;ard  them  as  carriers,  and  employ 
them  as  such,  without  intimation  of  tlicir 
true  character,  the  liabilities  of  a  carrier 
attach  to  them." 

[a]  Maying  v.  Todd,  1  Stark.  72.  And 
see  Clarke  v.  Needles,  25  Penn.  St.  Eeps. 
338 ;  Moses  v.  The  Boston  and  Maine 
Kailroad,  4  Foster,  71. 

(6)  Camden  &  Amboy  Kailroad,  &c.,Co. 

[682] 


V.  Belknap,  21  Wend.  354;  Woods  v. 
Devin,  13  111.  746  ;  Moses  v.  Boston  and 
]Maine  Railroad,  4  Foster,  71. 

[c)  riatt  r.  Hihbard,  7  Cow.  497  ; 
Moses  V.  Boston  &  Maine  Eailroad,  4  Fos- 
ter, 71. 

[d)  Selway  v.  Hollo  way,  1  Ld.  Raym. 
46;  Buckman  v.  Levi,  3  Campb.  414; 
Packard  v.  Getman,  6  Cow.  757. 

[e)  Mechanics  &  Traders  Bank  v.  Gor- 
don, 5  Louis.  Ann.  604.     The  late  case  of 


CH.  XII.] 


BAILMENT. 


655 


had  advertised  that  parcels  properly  directed  might  be  put  into 
his  box,  that  adequate  provisions  had  been  made  for  their  safety, 
and  that  he  should  hold  himself  responsible  for  them,  he  would 
in  such  case  undoubtedly  be  held  to  this  responsibility.  And 
the  knowledge  of  his  authorized  agent  is  his  knou^ledge.  (/) 
But  not  every  one  employed  by  him  is  his  agent  in  such  wise 


Mcrrmm  v.  Tlie  Hartford,  &c.,  Railroad 
Co.,  20  Conn.  354,  is  very  stroni^  to  tiiis 
point.  In  tiiat  case,  certain  goods,  de- 
signed to  be  transported  by  the  defend- 
ants, as  common  carriers,  from  New  York 
to  Meridoii,  in  Connecticut,  were  delivered 
in  New  York,  in  the  nsnal  manner,  on  the 
defendants'  private  dock,  which  was  in 
their  exclusive  use  for  the  purjiosc  of  re- 
ceiving property  to  be  transported  by  them. 
It  was  held  that  such  delivery  was  a  good 
delivery  to  the  defendants  to  render  them 
liable  for  the  loss  of  the  goods,  although 
neither  they  uor  their  agent  were  othei'- 
wise  notitied  of  such  delivery.  And 
Storrs,  J.,  said  :  "  A  contract  with  a  com- 
mon carrier  for  tlie  transportation  of  prop- 
erty, being  one  of  bailment,  it  is  necessary, 
in  order  to  charge  him  for  its  loss,  that  it 
be  delivered  to  and  accepted  by  him  for 
that  i)ur]iose.  But  such  acceptance  may 
be  cither  actual  or  constructive.  The 
general  rule  is,  that  it  must  be  delivered 
into  the  hands  of  the  carrier  himself,  or  of 
his  servant,  or  some  person  authorized  by 
him  to  receive  it ;  and  if  it  is  merely  de- 
posited in  the  yard  of  an  inn,  or  upon  a 
wharf  to  wliich  the  carrier  resorts,  or  is 
]ilaccd  in  the  carrier's  cart,  vessel,  or  car- 
riage, without  the  knowledge  and  accept- 
ance of  the  carrier,  his  servants  or  agents, 
there  would  be  no  bailment  or  delivery  of 
the  property,  and  he,  consequently,  could 
not  l)e  made  res]ionsible  for  its  loss.  Ad- 
dison on  Cont.  809.  ]5iit  tliis  rule  is  sub- 
ject to  any  conventional  airangement  be- 
tween the  i)arties  in  regard  to  tlie  mode  of 
delivery,  and  ])revails  only  where  there  is 
no  such  arrangement.  It  is  competent  for 
them  to  make  such  stipulations  on  the 
subject  as  they  sec  fit ;  and  when  made, 
they,  and  not  the  general  law,  are  to 
govern.  If,  therefore,  they  agree  tliat  the 
proiicrty  may  be  depositcil  for  transpoaa- 
tion  at  any  particular  place,  and  without 
any  express  notice  to  the  carrier,  such  de- 
])0sit  merely  would  be  a  sufficient  delivery. 
So  if,  in  tills  case,  the  defendants  had  not 
agreed  to  dispense  with  cxiacss  notice  of 


the  delivery  of  the  property  on  their  dock, 
actual  notice  thereof  to  them  would  have 
been  necessary  ;  but  if  there  was  such  an 
agreement,  the  deposit  of  it  there,  merely, 
would  amount  to  constructive  notice  to  the 
defendants,  and  constitute  an  acceptance 
of  it  by  them.  And  we  have  no  doubt 
that  the  i)roof  by  the  plaintitf  of  a  constant 
and  habitual  practice  and  usage  of  the  de- 
fendants to  receive  property  at  their  dock 
for  transportation,  in  the  manner  in  wliieh 
it  was  deposited  by  thc'plaintitf,  and  with- 
out any  special  notice  of  such  deposit,  was 
competent,  and  in  this  case  suifieient  to 
show  a  public  offer,  by  the  defendants,  to 
receive  property  for  that  purpose,  in  that 
mode  ;  and  that  the  delivery  of  it  there 
accordingly,  by  the  plaintiff,  in  pursuance 
of  such  offer,  should  be  deemed  a  coin])li- 
ance  with  it  on  his  part ;  and  so  to  consti- 
tute an  agreement  between  tlie  parties,  by 
the  terms  of  which  the  property,  if  so  de- 
posited, should  be  considered  as  delivered 
to  the  defendants,  without  any  further  no- 
tice. Such  practice  and  usage  was  tanta- 
mount to  an  open  declaration,  a  imljlic 
advertisement,  by  tiie  defendants,  that 
such  a  delivery  should,  of  itself,  be  deemed 
an  acceptance  of  it  l)y  them,  for  the  jiur- 
pose  of  transj)ortation  ;  and  to  permit  them 
to  set  up  against  those,  who  had  been 
thereby  induced  to  omit  it,  the  formality 
of  an  express  notice,  which  had  thus  been 
waived,  would  be  sanctioning  the  greatest 
injustice  and  the  most  paljjable  fraud. 
Tiie  present  case  is  precisely  analogous  to 
that  of  the  dei)osit  of  a  letter  for  transpor- 
tation in  the  letter-box  of  a  post-olHce,  or 
foreign  [jacket  vessel,  and  to  that  of  a  dc- 
jiosit  of  articles  for  carriage  in  tlie  ])ublic 
1)0X  provided  for  that  purpose,  in  one  of 
our  ex|)ress  otKces  ;  where  it  would  surely 
not  bo  claimed  that  such  a  delivery  would 
not  be  complete,  without  actual  notice 
thereof  to  the  head  of  these  cstablisiiments 
or  their  agents." 

(./')  Burrell  v.  North,  2  Car.  &  K.  680 ; 
Davcy  r.  Mason,  1  Car.  &  M.  4.5  ;  D'An- 
jou  I-.'  Deaglc,  3  11.  &  Johns.  20G. 

[683] 


I 


656* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


as  to  charge  him  with  this  responsibility,  (g-)  Drivers  of  stage- 
coaches, or  conductors  of  cars,  may  be  in  the  habit  of  carrying 
goods  generally,  in  parcels  of  some  particular  kind,  on  their  own 
account,  receiving  themselves  the  pay,  and  not  accounting  for 
it  to  their  *employers.  One  who  delivers  goods  to  such  a  per- 
son for  carriage,  knowing  that  he  carries  them  only  in  this  way, 
and  that  no  part  of  the  compensation  he  receives  goes  to  his 
employer,  cannot  hold  that  employer  liable  for  loss  of  the 
goods.  (//)  But  the  employing  carrier  cannot  defend  himself  by 
showing  that  his  servant  carried  the  goods  on  his  separate 
account,  and  for  his  separate  gain,  provided  the  owner  did  not 
know  the  state  of  the  case,  but  believed  that  the  employer  was 
the  carrier,  and  the  servant  his  receiver  of  goods  for  carriage, 
and  was  justified  by  the  main  facts  of  the  case  in  so  believ- 
ing. {{) 


{(j)  But  the  agent  must  have  an  au- 
thority for  this  purpose,  or  be  hekl  out  as 
having  it.  Therefore,  where  a  common 
carrier  sent  his  wagon  to  Nashville  with  a 
load  of  cotton,  and  the  driver  was  a  young 
negro  who  had  never  been  allowed  to  make 
contracts  for  hauling,  and  who  had  never 
before  been  intrusted  with  the  wagon  and 
team  alone,  and  who  was  particularly  in- 
structed to  bring  home  a  load  of  salt,  and 
not  to  receive  goods  of  any  kind  for  car- 
riage, notwithstanding  which  he  did  re- 
ceive goods  for  carriage,  and  the  goods 
were  damaged  ;  it  was  hfkl  that  the  owner 
of  the  team  was  not  liable.  Jenkins  v. 
Picket,  9  Yerg.  480. 

(/;)  Thus,  wliere  a  ship  is  not  put  uj)  to 
freight,  but  employed  by  the  owner  on  his 
own  account ;  and  the  master  receives 
goods  of  another  person  on  board  as  part 
of  his  privilege,  taking  to  himself  the 
freight  and  commissions,  the  owner  of  the 
ship  is  not  liable  in  case  of  embezzlement, 
or  for  the  conduct  of  the  master  in  relation 
to  such  goods.  King  r.  Lenox,  19  Johns. 
235.  See  also,  Butler  v.  Basing,  2  G.  & 
P.  G13;  Reynolds  v.  Toppan,  15  Mass. 
370  ;  Citizens  Bank  v.  Nantucket  Steam- 
boat Co.,  2  Story,  IG  ;  Allen  v.  Sewall,  2 
Wend.  327,  G  id.  335  ;  Walter  v.  Brewer, 
11  Mass.  99. 

(/)  Thus,  where  the  owners  of  a  stage- 
coach employed  a  driver,  under  a  contract 
that  he  should  receive  a  certain  sum  of 
money  per  month,  and  the  comijcnsation 
which  should  be  paid  for  the  carriage  of 

[684] 


small  parcels,  it  was  held  that  the  owners 
would  be  answerable  for  the  negligence  of 
the  driver  in  not  delivering  a  parcel  of  that 
description,  intrusted  to  him  to  carry,  un- 
less this  arrangement  was  known  to  the 
proprietor  of  the  goods,  so  that  he  con- 
tracted with  the  driver  as  principal.  Bean 
V.  Sturtevant,  8  N.  H.  146.  See  also, 
Allen  V.  Sewall,  2  Wend.  .327,  G  id.  335; 
Hosea  v.  McCrory,  12  Ala.  349 ;  Chou- 
teau V.  Steamboat,  IG  Missouri,  216  ; 
Whitmorc  v.  Steamboat  Caroline,  20  id. 
513.  See  also,  the  late  case  of  Farmers  & 
Mechanics  Bank  v.  Champlain  Transpor- 
tation Co.,  23  Verm.  186,  in  which  these 
points  arc  thoroughly  considered.  See 
the  facts  of  the  case  stated  post,  p.  661,  n. 
(  m) .  One  of  the  points  made  was  whether 
the  defendants  were  to  be  held  as  common 
carriers  of  the  bank-bills  in  question. 
Upon  this  point,  Redjield,  J.,  said  :  "  It 
seems  to  us  that  when  a  natural  pereon, 
or  a  corporation,  whose  ])owers  arc  alto- 
gether unrestricted,  erect  a  steamboat,  ap- 
point a  captain,  and  other  agents,  to  take 
the  entire  control  of  their  boat,  and  thus 
enter  upon  the  carrying  business,  from 
port  to  port,  they  do  constitute  the  captain 
their  general  agent,  to  carry  all  such  com- 
modities as  he  may  choose  to  contract  to 
carry  within  the  scope  of  the  powers  of 
the  owners  of  the  boat.  If  this  were  not 
so,  it  would  form  a  wonderful  exception 
to  the  general  law  of  agency,  and  one  in 
which  the  public  would  not  very  readily 
acquiesce.     There  is  hardly  any  business 


CH.  XII.] 


BAILMENT. 


^657 


*A  ship  may  be  a  common  carrier,  whether  in  the  hands  of 
her  owner,  or  chartered  by  him  to  another.  But  she  may  be 
chartered  in  two  ways.  If  the  iiirer  provides  and  pays  the  offi- 
cers and  crew,  in  this  case  the  owner  is  not  more  liable  for  their 
acts  than  if  he  had  sold  the  ship,  (j)  If  the  owner  agrees  to 
man  the  ship,  and  then  the  hirer  hires  ship,  officers,  and  crew, 
of  the  owner,  the  owner  alone  is  in  general  responsible  for  the 
acts  of  the  officers  and  men  in  reference  to  the  goods,  where  he 
has  the  actual  possession  and  control  of  the  ship  for  that 
voyage,  (k)  The  owner  of  the  ship  is  certainly  liable  for  the 
acts  of  those  whom  he  provides  and  pays,  where  the  goods  were 
laden  on  board  on  his  credit,  trusting  to  him  as  the  owner  of 
the  ship,  he  knowing  this  trust,  and  by  his  words  or  conduct 
authorizing  it,  and  so  accepting  the  responsibility.  So  an 
owner  of  a  ferry,  who  has  leased  it,  and  placed  the  lessee  in 
possession,  is  not  liable  for  loss  of  goods  in  crossing  the  ferry.(/) 


in  the  countiy,  wlicre  it  is  so  important  to 
maintain  the  authority  of  agents,  as  in  this 
matter  of  carrying,  by  these  invisible  cor- 
porations, wlio  liavc  no  local  haI)itation, 
and  no  existence,  or  jiowcr  of  action,  ex- 
cept thronj^h  these  same  agents,  by  whom 
ahnost  the  entire  carrying  business  of  the 
countiy  is  now  conducted.  If,  then,  the 
captains  of  these  boats  are  to  be  regarded 
as  the  general  agents  of  tlie  owners,  — 
and  we  hardly  conceive  iiow  it  can  be  re- 
garded otherwise, — whatever  commodi- 
ties, within  the  limits  of  the  powers  of  the 
owners,  the  captains,  as  their  general 
agents,  assume  to  carry  for  hire,  the  lia- 
bility of  the  owners  as  carriers  is  thereby 
fixed,  and  they  will  be  held  responsible 
for  all  losses,  unless,  from  the  course  of 
business  of  these  boats,  the  jilaintifls  did 
know,  or  ujjon  reasonable  inquiry  miglit 
have  learned,  that  the  captains  were  in- 
trusted with  no  such  authority.  Prima 
Jhcie  the  owners  are  liable  for  all  contracts 
for  carrying,  made  by  the  captains  or  other 
general  agents  for  tliat  puq)osc,  witin'n  the 

VOL.    I.  58 


powers  of  the  owners  themselves,  and  the 
OHMS  rests  upon  tlicm  to  show  that  the 
plaintiffs  had  made  a  private  contract  with 
the  captain,  wliicli  it  was  understood 
should  be  kept  from  the  kiuiwledgc  of  tlie 
defendants,  or  else  had  given  credit  exclu- 
sively to  the  captain,  liut  it  does  not  ap- 
l)car  to  us  that  the  mere  fact  that  tlie  cap- 
tain was,  by  the  company,  jiermitted  to 
take  the  perquisites  of  carrying  these  par- 
cels, will  be  suilicient  to  exonerate  tlic 
company  from  liability.  Their  suffering 
him  to  continue  to  carry  bank-bills  ought, 
we  think,  to  be  regarded  as  fixing  their 
responsibility,  and  allowing  the  caiitain  to 
take  the  penpiisites,  as  an  arrangement 
among  themselves." 

(  /)  James  v.  Jones,  3  Esp.  27  ;  Vallejo 
V.  Wheeler,  Cowp.  143;  Frazer  t\  jMarsh. 
13  East,  238;  Keynolds  v.  Tojipan,  13 
Mass.  370. 

(X)  Tarisli  v.  Crawford,  Strange,  12.51  ; 
Emery  v.  Ilerscy,  4  Grcenl.  407  ;  Mcln- 
tire  V.  IJowne,  1  Jolins.  229. 

(/)  Ladd  I'.  Chotard,  Minor,  360. 

[085] 


658* 


THE   LAW   OP   CONTRACTS. 


[book  III. 


SECTION    IX. 


WHEN    THE    RESPONSIBILITY    ENDS. 


.  As  the  liability  of  the  carrier  begins  with  the  delivery  of  the 
goods  to  him,  so  it  continues  until  the  delivery  of  the  goods  by 
him.  For  he  is  bound  not  only  to  carry  them  to  their  destined 
place,  but  to  deliver  them  there  to  the  bailor,  or  as  the  bailor 
may  direct,  (m)  And  this  he  must  do  within  *what  shall  be  a 
reasonable  time,  judging  from  all  the  circumstances  of  the 
case ;  (n)  and  within  the  proper  hours  of  business,  when  the 
goods  can  be  received  and  properly  stored,  (o) 


(m)  Golden  r.  Manning,  3  Wils.  429,  2 
Wm.  Bl.  916;  Hvdc  v.  Trent  &  Mersey 
Navigation  Co.,  s'T.  R.  389  ;  Wardell  v. 
Moarillvan,2Esp.  693  ;  Storr  t'.  Crowley, 
McCl.  &  Y.  129  ;  Gibson  v.  Culver,  17 
Wend.  305  ;  Fisk  v.  Newton,  1  Denio, 
45  ;  Ostrander  v.  Brown,  15  Johns.  39  ; 
Eagle  V.  White,  6  Whart.  505  ;  McHenry 
V.  Railway  Co.,  4  Harring.  448. 

(n)  Hand  v.  Baynes,  4  Whart.  204; 
Favor  r.  Plulbrick,  5  New  Hamp.  358 ; 
Wallace  v.  Vigus,  4  Blackf.  2G0  ;  Nettles 
V.  Railroad  Co.,  7  Rich.  Law,  190  ;  Ra- 
phael V.  Pickford,  6  Scott's  N.  R.  478. 

(o)  Eagle  V.  White,  6  Whart.  505.  In 
this  case  the  defendants,  who  were  com- 
mon cai'riers  on  the  railroad  from  Phila- 
delphia to  Columbia,  undertook  to  carry 
certain  boxes  of  goods  belonging  to  the 
plaintiffs  from  Philadelphia  to  Columbia. 
The  cars  arrived  at  the  latter  place  about 
sunset  on  a  Saturday  evening,  and  by  the 
dii'ection  of  the  plaintift's  were  placed  on  a 
sideling.  The  plaintiffs  declined  receiving 
the  goods  that  evening  on  the  ground  that 
it  was  too  late  ,'  whereupon  the  agent  of 
the  defendants  left  the  cars  on  the  sideling, 
taking  witli  him  the  keys  of  the  padlocks 
with  whicl>  tiie  cars  were  fastened,  and 
promised  to  return  on  Monday  morning. 
Tlie  cars  remained  in  this  situation  until 
Monday  morning,  when  they  were  opened 
by  the  plaintifl's  by  means  of  a  key  whieli 
fitted  the  lock ;  and  on  examination  it  was 
discovered  that  one  of  the  boxes  had  been 
opened,  and  the  contents  carried  away ; 
held  that  the  defendants  were  liable  to  the 

[G86] 


plaintiffs  for  the  value  of  the  goods  lost. 
Huston,  J.,  dissented.  —  So  in  Merwin  v. 
Butler,  17  Conn.  138,  where  the  defend- 
ant, who  was  a  common  carrier,  received 
from  the  plaintiff'  a  package  of  money,  to 
convey  it  from  S.  to  P.,  and  to  deliver  it  at 
the  bank  in  P.  ;  it  appeared  that  when  the 
defendant  arrived  at  P.  the  bank  was  shut  ; 
that  he  went  twice  to  the  house  of  the 
cashier,  and  not  finding  him  at  home, 
brought  the  money  back,  and  offered  it  to 
the  plaintiff',  who  declined  to  accept  it ; 
and  that  the  defendant  then  refused  to  be 
further  i-esponsible  for  any  loss  or  accident; 
it  was  held  that,  in  the  alisencc  of  any 
special  contract,  (none  being  proved  in 
this  case,)  these  fiicts  did  not  constitute  a 
legal  excuse  to  the  defendant  for  the  non- 
performance of  his  undertaking.  And 
llinman,  J.,  said  :  "  That  there  may  be 
circumstances  which  would  excuse  a  car- 
rier from  the  deliver}'  of  a  package  is 
doubtless  true,  but  there  is  nothing  stated 
in  this  motion  that  ought  to  have  that 
effect.  That  tlie  bank  Avas  shut  wlicn  the 
carrier  went  there,  can  amount  to  nothing, 
unless  it  appeared  further  that  lie  went 
there  at  a  proper  time,  during  the  ordi- 
nary business  hours ;  and  even  then  we 
could  not  say,  as  matter  of  law,  that  tliis 
would  be  a  legal  excuse.  It  would  de- 
pend" upon  the  degree  of  diligence  which 
the  carrier  used,  to  let  the  ofKccrs  of  the 
bank  know  that  he  had  a  package  to  de- 
liver there.  No  question  of  this  sort  was 
raised  on  the  trial  below,  nor  does  it  ap- 
pear that  there  was  any  foundation   on 


CH.  XII.] 


BAILMENT. 


659 


Eut  if  there  be  delay  through  an  accident  or  misfortune,  and 
the  carrier  afterwards  delivers  the  goods  as  soon  as  may  be,  he 
is  not  responsible  for  the  effect  of  the  delay,  although  it  was  not 
occasioned  by  "  the  act  of  God  or  the  public  enemy,"  and 
might  possibly  have  l^een  prevented ;  for  as  to  the  time  of 
the  delivery  he  is  not  bound  to  more  than  diligence ;  nor  respon- 
sible unless  for  the  want  of  due  diligence ;  his  liability  as  to  the 
time  of  delivery  being  quite  distinct  from  his  liability  for  the 
delivery  itself.  (/?)     It  seems,  however,  that  if  he  has  made  an 


1 


which  it  could  have  heen."  Sec  also 
Hill  V.  Ilumphrcvs,  5  W.  &  S.  123; 
Youtifr  V.  .Smith,  3  Dana,  91  ;  Storr  v. 
Crowley,  JNIcL.  &  Y.  120.  The  (lucstion, 
what  constitutes  a  sufficient  delivery,  is 
well  illustrated  hy  the  case  of  De  Mott  ct 
al.  V.  Laraway,  14  Wend.  225.  The  de- 
fendant in  that  case  was  the  owner  and 
master  of  a  canal  hoat,  and  received  on 
board  his  boat  at  Troy  a  lioj^shead  of 
molasses  and  other  goods  helonginu;  tothe 
plaintiffs,  to  be  transported  to  Kidder's 
ferry,  being  a  landing-place  nearest  to 
Farniersville,  where  the  plaintiffs  trans- 
acted business.  All  the  goods  were  safe- 
ly transported  and  delivered  to  the  plain- 
tiffs except  the  hogshead  of  molasses. 
The  boat  arrived  at  Kidder's  ferry,  and, 
in  tlie  attempt  to  hoist  the  hogshead  of 
molasses  into  a  warehouse,  the  usual  place 
for  the  delivery  of  goods  for  Fannci-sville, 
the  fall  (i)art  of  the  inadiinery  for  hoisting 
attaclied  to  the  warehouse,)  broke,  and  the 
hogsheail  fell  liack  into  the  boat,  was 
stove,  and  most  of  the  molasses  lost.  At 
the  time  of  the  accident  the  hogshead  was 
clear  of  the  boat,  and  almost  up  to  the  sill 
of  tile  door  of  the  warehouse.  One  of  the 
plaintiffs  was  present,  and  had  wagons 
there  in  which  some  of  the  goods  were 
loadeil.  It  was  /ulil  that  the  defendant 
wa.s  liable  for  tlic  loss.  Sutlurhnul,  J., 
said  :  "  Laraway  was  a  common  carrier 
upon  the  canal,  and  as  such  undertook  to 
transport  the  defendant's  goods  frouj  Troy 
to  Kidder's  ferry.  This  necessarily  in- 
cluded tlie  duty  of  ddinrinr/  the  goods 
there  in  safety.  They  were  all  thus  deliv- 
ered except  a  hogshead  of  molasses,  whicli 
was  stove  in  the  act  of  being  unladen  ;  a-s 
they  were  hoisting  it  from  tlie  boat  with  a 
tackle  attached  to  a  storehouse  upon  tlic 
bank  of  th(.'  canal,  the  rojie  broke,  and  the 
hogshead  fell  lia(k  into  the  boat,  and  most 


of  the  molasses  was  lost.  Although  one 
of  the  plaintiffs  was  present,  there  is  no 
pretence  that  he  had  accepted  the  molasses 
as  delivered  previously  to  the  accident,  or 
that  he  had  any  thing  to  do  with  the  ileliv- 
ery.  The  delivery  was  not  comjjlete 
when  the  accident  occurred,  and  the  goods 
were  still  at  the  risk  of  the  carrier.  It  is  a 
matter  of  no  importance  that  the  machin- 
ery employed  in  unlading  the  boat  was  at- 
tached to  and  belonged  to  a  store  on  the 
bank  of  the  canal,  and  not  to  the  canier's 
boat.  It  was  pro  hac  vice  his  tackle,  and 
he  was  responsii)Ic  for  its  sufKciency. 
When  the  responsibility  of  a  common  car- 
rier has  begun,  it  continues  until  there  has 
been  a  due  delivery  by  him."  Sec  also 
Graff  !•.  Bloomer,  9  Earr,  114. 

(/))  Parsons  v.  Hardy,  14  Wend.  21.5  ; 
Dows  )•.  Cobb,  12  Barb.  .310,  320;  Wiliert 
V.  The  New  York  &  Erie  B.  K.  Co.,  2  Ker- 
nan,  24.5  ;  Scovill  v.  Grifhtli,  id.  .500 ;  Bovie 
V.  McLaughlin,  4  H.  &  Johns.  201  ;  lliid- 
ley  V.  Clarke,  8  T.  B.  259;  Lowe  r. 
Moss,  12  111.  477.  See  Ilarrell  i-.  Owens, 
1  Dev.  &  Bat.  273,  contra.  —  But  if  the 
carrier  is  prevented  by  any  cause  from  de- 
livering goods  in  due  time,  his  liaiiility  to 
deliver  theni  within  a  reasonable  time, 
after  the  cause  of  detention  is  removed, 
still  continues.  Id.  Therefore,  where  the 
defendants  contracted  to  carry  the  plain- 
tiff's goods  from  Liverpool  to  Lcghoni, 
and  on  the  vessel's  arriving  at  Falmouth, 
in  the  course  of  her  voyage,  an  embargo 
was  laid  on  her,  "  tmlil  thefitrtlii-r  ordtr  of 
CoKiicil:"  it  was  hiltl  that  such  emi>argo 
only  suspended,  but  did  not  dissolve,  the 
contract  between  the  parties ;  and  that  even 
after  two  years,  when  the  embargo  was 
taken  off,  the  defendants  were  answerable 
to  the  plaintiff  in  damages  for  the  non- 
jierfomiance  of  their  contract,  lladlev  v. 
Clarke,  8  T.  B.  259. 

[G87] 


I 


660* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


expvess  agreement  to  deliver  by  a  specified  time,  delay  caused 
by  unavoidable  accident  will  be  no  excuse,  [pp) 

If  the  consignee  refuse  to  receive  the  goods,  or  cannot  receive 
them,  or  is  dead,  or  absent,  this  will  excuse  delay  in  delivery, 
but  not  absolve  the  carrier  from  all  duty  or  responsibility ;  for 
he  is  still  bound  to  make  all  reasonable  efforts  to  place  them  in 
the  hands  of  the  consignee,  and  when  these  are  ineffectual,  to 
take  care  of  the  goods  for  the  owner,  by  holding  them  himself, 
or  lodging  them  with  suitable  persons  for  him  ;  and  such  per- 
sons then  become  bailees  of  the  owners  of  the  goods,  [q) 

*Bat  the  question  of  reasonableness  of  time  disappears  when 
the  parties  have  made  the  time  certain  by  their  special  agree- 
ment. Then  it  must  be  precisely  adhered  to.  Any  delay  is  a 
failure  and  a  breach  of  contract,  (r)  And  where  there  is  a 
custom  which  would  wholly  excuse  the  carrier  from  delivering 
the  goods,  still,  if  he  make  an  express  promise  to  deliver,  he  is 
bound  by  this  promise,  and  the  custom  becomes  inoperative. 

In  general,  the  delivery  of  the  goods  must  be  to  the  owner  or 
consignee  himself,  or  to  his  agent,  [s)  or  they  must  be  carried  to 


[pp)  Harmony  w.  Bingham,  1  Ducr,  209. 

(r/)  Ostrander  y.  Brown,  15  Johns.  39  ; 
risk  r.  Nuwton,  1  Denio,  45.  In  this  Last 
case  the  consignee  of  certain  kegs  of  but- 
ter, sent  from  Alban^y  to  New  York  by  a 
freight  barge,  was  a  clerk,  having  no  place 
of  business  of  his  own,  and  whose  name 
was  not  in  the  city  directory,  and  who  was 
not  known  to  the  carrier,  and  after  reason- 
al)lc  inquiries  by  the  carrier's  agent  could 
not  be  found.  It  was  hdd  that  the  carrier 
discharged  himself  from  further  responsi- 
bility, by  depositing  the  property  with  a 
storehouse  keeper,  then  in  good  credit, 
for  the  owner,  and  taking  liis  receipt  for 
the  same,  according  to  the  usual  course  of 
business  in  that  trade,  although  the  butter 
was  subsequently  sold  by  tiie  storehouse 
keeper,  and  the  proceeds  lost  to  the  owner 
by  his  failure.  And  Jewett,  J.,  said  : 
"  When  goods  are  safely  conveyed  to  the 
place  of  destination,  and  the  consignee  is 
dead,  absent,  or  refuses  to  receive,  or  is 
not  known,  and  cannot,  after  due  efforts 
are  made,  be  found,  the  carrier  may  dis- 
charge himself  from  further  responsibilit}' 
by  placing  the  goods  in  store  with  some 
responsible  third  person  in  that  business, 
at  the  place  of  delivery,  for  and  ou  ac- 

[  688] 


count  of  the  owner.  When  so  delivered, 
the  storehouse  keeper  becomes  the  bailee 
and  agent  of  the  owner  in  respect  to  such 
goods."  See  also.  Stone  I'.Waitt,  31  Maine, 
409  ;  Plcmphill  v.  Chenie,  C  W.  &  S.  62. 

(/•)  Hand  v.  Baynes,  4  Whart.  204, 
214  ;  Paradine  v.  Jane,  Aleyn,  27  ;  Breck- 
nock Co.  V.  Pritchard,  6  T.  R.  750.  But 
see  Dows  v.  Cobb,  12  Barb.  310,  321. 

(s)  See  cases  cited  ante,  p.  058,  n.  (?«). 
In  Lewis  v.  The  Western  Railroad  Co., 
11  Met.  509,  it  was  held  that  if  A,  for 
whom  goods  are  transported  by  a  railroad 
company,  authoiizes  B  to  I'eceivo  the  de- 
livery thereof,  and  to  do  all  acts  incident 
to  the  delivery  and  transportation  thereof 
to  A,  and  B,  instead  of  receiving  the 
goods  at  the  usual  place  of  delivery,  re- 
quests the  agent  of  the  company  to  permit 
the  car  which  contains  the  goods  to  be 
jiauled  to  a  near  depot  of  another  railroad 
company,  and  such  agent  assents  thereto, 
and  assists  B  in  hauling  the  car  to  such 
dejjot,  and  B  there  requests  and  obtains 
leave  of  that  company  to  use  its  machin- 
ery to  remove  the  goods  from  the  car ; 
then  the  company  that  trans])oi'ted  the 
goods  is  not  answerable  for  the  want  of 
care  or  skill  in  the  persons  employed  in  so 


CII.  XII.] 


BAILMENT. 


*'661-*662 


his  residence,  or  they  may  be  taken  to  his  place  of  business, 
where  from  the  nature  of  the  jDarcels  this  is  the  more  appropri- 
ate place  for  their  delivery.  Nor  is  it  sufficient  that  they  are 
left  at  the  public  office  of  the  carrier,  unless  there  be  express 
permission  for  this,  or  an  usage  so  established  and  well  known 
as  to  be  equivalent  to  such  permission.  (/) 

*Usage,  go  long  established,  so  uniform,  and  so  well  known 
that  it  must  be  supposed  that  the  parties  to  a  contract  knew  it, 
and  referred  to  it,  becomes  as  it  were  a  part  of  the  contract,  and 
may  modify  in  an  important  manner  the  rights  and  duties  of 
the  parties.  And  in  determining  what  is  a  sullicient  delivery 
of  goods  by  a  carrier,  usage  has  frequently  great  influence.  («) 
In  general,  as  we  have  said,  the  delivery  *must  be  to  the  owner 


removing  the  goods  from  the  car,  nor  for 
the  want  of  strengtli  in  tlic  machinery 
uscfl  for  the  removal  of  them,  and  cannot 
be  char;;cd  witliany  loss,  that  may  iiappen 
in  the  course  of  sucli  delivery  to  A. 

{I)  Gil)son  V.  Culver,  17"  Wend.  305. 
In  this  case  it  was  //(Wtliat  it  is  competent 
for  a  carrier  to  prove  that  the  uniform 
usage  and  course  of  the  business  in  wiiieii 
he  is  engaged  is  to  leave  the  goods  at  his 
usual  stop])ing-i)laces  in  the  towns  to  which 
the  goods  are  directed,  icithout  notice  to  the 
consignees ;  and  if  such  usage  be  shown 
of  so  long  continuance,  uniformity,  and 
notoriety,  as  to  justify  a  jury  to  find  that 
it  was  known  to  the  plaintiff,  the  carrier 
will  be  discharged. 

(n)  Sec  Farmers  and  Mechanics  Bank 
c.  Champlain  TrAnsportaiion  Co.,  16 
A''erm.  .'32,  18  id.  131,23  id.  186.  This  is 
one  of  tiie  strongest  cases  in  the  books 
upon  this  ])oint.  The  defendnnts  were 
common  carriers  on  Lake  Chani])lain, 
from  Uurliiigton  to  St.  jVlbuns,  toiiciiing 
Port  Kent  an<l  Plattsbur;:h  long  enough  to 
discharge  and  receive  freight  and  j)asscn- 
gcrs.  Tliis  action  was  brought  against 
them  to  recover  for  the  loss  of  a  ])ackagc 
of  bank-bills.  It  appeared  Iti  evidence 
that  the  ])ackage  in  (lucstion,  which  was 
directed  to  "  Hichard  Yates,  Esq.,  Casiiier, 
I'lattsiiurgh,  N.  Y.,"  was  delivered  by  the 
teller  of  tlie  plaintilfs'  liaid<  to  the  captain 
of  the  defendants'  boat,  wliich  ran  daily 
from  Burlington  to  PlatisburL:ii,  and  thence 
to  St.  Aibjins  ;  and  that,  when  the  boat 
arrived  at  IMatt.-burgh,  tiie  captain  deliv- 
ered the  i)ackage  to  one  Ladd,  a  whartin- 
ger,  and  that  it  was  lost  or  stolen  while  in 

58* 


Ladd's  possession.  No  notice  was  given 
by  the  captain  of  the  boat  to  the  consignee 
of  tlic  arrival  of  the  package,  nor  had  he 
any  knowledge  of  it  until  after  it  was  lost. 
The  principal  question  in  the  case  was, 
whether  the  i)ackage  was  sufficiently  deliv- 
ered to  discharge  the  defendants  from 
their  liability  as  carriers.  The  defendant.s 
olfered  evidence  to  show  that  a  delivery  to 
the  wharlinger,  without  notice,  under  the 
circumstances  of  the  case,  was  a  good  de- 
livery according  to  their  own  uniform 
usage,  and  the  usage  of  other  carriers 
similarly  situated.  The  case  has  been  be- 
fore the  Supreme  Court  of  Vermont  three 
times,  and  that  court  has  uniformly  UM 
that,  in  the  absence  of  any  special  contract, 
a  delivery  to  the  wharfinger  without  notice, 
if  warranted  by  the  usage  of  tlie  place,  was 
sufficient,  and"  discharged  the  defendants 
from  all  lial)ility.  When  the  case  v.-as  be- 
fore the  court  the  last  time,  /i'' (//;''/</,  J., 
in  delivering  the  judgment,  said  :  "  If  the 
law  fixes  the  extent  of  the  contract,  in 
every  instance,  in  the  manner  assumed, 
then,  most  undoubtedly,  arc  the  defendants 
liable  in  this  case,  unless  they  can  show, 
in  the  manner  required,  some  controlling 
iisa;,fe.  I5ut  if,  ui>on  examination,  it  shall 
appear  that  there  is  no  rule  of  law  appli- 
cable to  the  subject,  and  the  extent  of  the 
transit  is  matter  resting  altogether  in 
proof,  then  the  course  of  business  at  the 
place  of  destination,  the  usage  or  pr.jcticc 
of  the  defendants,  and  other  carriers,  if 
any,  at  that  ]iort,  and  at  that  wharf,  be- 
come essential  and  controlling  ingredients 
in  the  contract  itself." 

[  GSO  ] 


663*  THE   LAW    OF   CONTRACTS.  [BOOK  III. 

or  consignee,  or  his  authorized  agent.  But  if  the  goods  are  left 
at  his  residence,  or  (such  delivery  being  more  appropriate)  at  his 
place  of  business,  and  this  is  equivalent  to  a  delivery  into  his 
personal  possession,  it  does  not  seem  that  any  personal  notice 
is  necessary.  Perhaps  it  may  always  be  presumed  that  the 
owner  of  goods  will  receive  information  if  they  are  left  at  his 
house;  and  if  not,  that  it  is  his  own  fault,  or  if  the  fault  of 
others,  not  that  of  the  carrier.  But  where  a  delivery  by  a  car- 
rier is  made  at  an  owner's  house,  but  not  in  a  usual  way,  as  if 
the  parcel  were  placed  in  a  dark  corner  of  an  entrance  or  back 
room,  without:  attracting  notice  or  giving  information  to  any 
one,  this  circumstance  might  indicate  either  wrongful  motive 
or  culpable  negligence ;  and  such  delivery  would  not  be  a  suf- 
ficient one.  It  is  undoubtedly  best  in  all  cases  of  delivery  not 
to  the  person  himself  to  give  notice  to  him,  or  to  one  certainly 
authorized  to  receive  notice  for  him. 

Carriers  by  land  usually  deliver  the  goods  they  transport,  by 
carrying  them  to  the  owner,  or  where  he  directs.  And  gener- 
ally they  can  do  this  as  easily  as  bring  them  into  the  town 
where  he  lives.  But  this  is  not  the  case  with  one  *important 
class  of  carriers  by  land  ;  we  mean  railroads.  The  freight  cars 
can  go  only  where  the  rails  go,  and  -these  terminate  in  the  sta- 
tion-house. If  the  goods  are  to  be  carried  further,  they  must  be 
laden  upon  wagons  or  other  carriages  for  that  purpose.  More- 
over, it  is  usual  for  the  consignor  by  railroad  to  send  to  the 
consignee  notice  of  the  consignment,  and  very  frequently  a  copy 
of  a  receipt,  which  seems  to  take  the  place  of  a  bill  of  lading. 
And  the  arrival  of  the  goods  at  a  certain  hour  may  usually  be 
calculated  upon  with  great  certainty.  For  all  these  reasons, 
and  some  others,  it  seems  to  be  usual  with  railroads  not  to  send 
the  goods  out  of  their  depots,  (f)      There  is,  perhaps,  no  objec- 


()')   Thomas   ;'.   Boston  &  Providence  and  were  deposited  at  the  defendants'  de- 

Raih-oad  Corp.  10  Met.  472.     This  was  pot  at  Boston  ;  that  a  teamster,  employed 

an  action  against  the  defendants  as  com-  hy  the  phiintiif,  sliortly  after  called  at  the 

mon  carriers  to  recover  for  the  loss  of  a  depot,  with  a  hill  of  the  freijiht  receipted 

roll  of  leather.     It  appeared  in  evidence  hy  the  defendants,  and   inijuired  for  the 

that  four  rolls  of  leather,  the  property  of  leather;  that  it  was  pointed  out  to  him  hy 

the  plaintiff,  were  delivered  to  tlie  defend-  the   defendants'   agent,   Allen,    who   had 

ants  at  Providence,  to  be  transported  to  charge  of  the  depot ;    that   tiie   teamster 

Boston  ;  that  they  were   so   transported,  then  took  away  two  of  the  rolls,  and  soon 

[090] 


en.  XII.] 


BAILMENT. 


*664 


tion  to  this  usage  *strengtheiiing  itself  into  law.     But  we  think 
in  that  case  that  the  railroad  carrier  should  give  notice  forth- 


after  called  again  and  inquired  for  the 
the  other  two  ;  tliat  lie  was  directed  where 
to  look  for  tlieiu ;  an<l  that  he  found  only 
one.  The  court  h<ld  that,  under  these  cir- 
cumstances, the  defendants  were  not  liahle 
as  carriers.  Hubbard,  J.,  said :  "  The 
transportation  of  j^oods,  and  the  storage  of 
goods,  arc  contracts  of  a  ditferent  char- 
acter ;  and  though  one  person  or  company 
may  render  both  services,  yet  the  two  con- 
tracts are  not  to  he  confounded  or  blended  ; 
because  the  legal  liabilities  attending  the 
two  are  different.  The  jjroprietors  of  a 
railroad  transport  merchandise  over  their 
road,  receiving  it  at  one  depot  or  place  of 
deposit,  and  delivering  it  at  another,  agree- 
ably to  the  direction  of  the  owner  or  con- 
signor. But  from  tlie  very  nature  and 
l)eculiar  construction  of  the  road,  the  pro- 
prietors cannot  deliver  merchandise  at  the 
warehouse  of  tlic  owner  when  situated  off 
the  line  of  the  road,  as  a  common  wagoner 
can  do.  To  make  such  a  delivery,  a  dis- 
tinct species  of  transportation  would  be 
re(iuired,  and  would  l)e  the  subject  of  a 
distinct  contract.  They  can  deliver  it  only 
at  the  terminus  of  the  road,  or  at  tlie  given 
depot  where  goods  can  be  safely  unladed, 
and  put  into  a  place  of  safety.  "After  such 
delivery  at  a  depot  'the  carriage  is  com- 
pleted. J}ut,  owing  to  the  great  amount 
of  goods  transported,  and  belonging  to  so 
many  different' persons,  and  in  consc(|uence 
of  the  ditferent  hours  of  arrival,  by  night 
as  well  as  by  day,  it  becomes  etpially  con- 
venient and'  necessary,  both  for  the  i)ro- 
jirielors  uf  tlie  road  and  the  owners  of  the 
goods,  that  they  should  be  unladed,  and 
deposited  in  a  safe  ]ilacc,  in-otected  from 
the  weather,  and  fr(jm  e.\])osure  to  thieves 
and  pilferers.  And  where  such  suitable 
warehouses  arc  provided,  and  the  goods 
which  arc  not  called  for  on  their  arrival  at 
tlic  places  of  destination,  arc  unladed  and 
separated  from  the  goods  of  other  persons, 
and  stored  safely  in  such  warehouses  or 
depots,  the  duty  of  the  proprietors  as  com- 
mon carricre  is  in  our  judgment  termi- 
nated. They  have  done  all  they  agreed  to 
do  ;  they  have  received  the  goods,  have 
transported  them  safily  to  the  i)lace  of  de- 
livery, and,  llic  consignee  not  being  pres- 
ent to  receive  them,  have  unladed  them, 
and  have  put  them  in  a  safe  and  ino|ier 
place  for  the  consignee  to  take  them  away ; 
and  he  can  take  them  at  any  reasonable 
time.     The   liabilitv  of  common  carriers 


being  ended,  the  jiroprietors  arc  by  force 
of  law  depositaries  of  the  goods,  and  are 
bound  to  reasonable  diligence  iu  the  cus- 
tody of  them,  and  consequently  are  only 
liable  to  the  owners  in  case  of  a  want  of 
ordinary  care.  In  the  case  at  bar,  the 
goods  were  transported  over  the  defend- 
ants' road,  and  were  safely  deposited  in 
their  merchandise  depot,  ready  for  deliv- 
ery to  the  i)laintitf,  of  which  he  had  notice, 
and  were  in  fact  in  part  taken  away  by 
him  ;  the  residue,  a  portion  of  which  was 
afterwards  lost,  being  left  there  for  his 
convenience.  No  iigrcement  was  made  for 
the  storage  of  the  goods,  and  no  further 
compensation  paid  tlierefor ;  the  sum  jjaid 
being  the  freight  for  carriage,  wliich  was 
payaljlo  if  the  goods  had  been  delivered  to 
the  plaintiff  immediately  on  the  arrival  of 
the  cars,  without  any  storage.  Upon 
these  facts,  we  are  of  opinion,  for  the  rea- 
sons before  stated,  that  the  duty  of  the  de- 
fendants, as  common  carriers,  had  ceased 
on  their  safe  deposit  of  the  plaintiff's 
goods  in  the  merchandise  depot ;  and  that 
they  were  then  responsible  only  as  deposi- 
taries without  further  charge," and  conse- 
quently, unless  guilty  of  negligence,  in  the 
want  of  ordinary  care  in  the  custody  of  the 
goods,  they  are  not  liable  to  the  plaintiff 
for  the  alleged  loss  of  a  part  of  the  goods." 
And  in  Norway  I'lains  Co.  v.  Boston  & 
IMaine  Railroad,  I  Gray,  263,  it  is  decided 
that  the  rule  reijuiring  cairiei-s  to  make 
jtersonal  delivery  to  the  consignee  does  not 
apply  to  railroads,  transportation  by  which 
more  resembles  sea-carriage  than  carriage 
by  means  of  wagons  and  similar  vehicles  ; 
that  the  natm-e  of  transportation  of  freight 
by  railroad  is  such  that  the  implied  con- 
tract between  the  parties  is  that  the  com- 
pany will  transport  the  goods,  discharge 
them  from  the  cars  upon  a  suitable  j)lat- 
form,  and  there  deliver  them  to  the  con- 
signee if  he  is  ready  to  receive  them,  and 
if  he  is  not  that  "they  will  place  them 
securely  and  kecj)  them  a  reasonalile  time, 
ready  to  be  delivered  when  called  for; 
that  from  this  view  of  the  duty  and  con- 
tract between  the  parties,  the  company 
are  hrst  common  carriers,  and  after  that 
warehouse-men,  responsible  as  the  former 
until  the  goods  are  removeil  from  the  cars 
and  jdacctl  ui>on  the  platform,  and  if,  on 
account  of  their  arrival  in  the  night,  or  for 
any  reason,  the  consignee  is  not  then 
readv  tc  receive  them,  it  is  the  duty  of  the 

[GDI] 


665* 


THE   LAW    OF   CONTRACTS. 


[book   III. 


with,  on  the  arrival  of  the  goods,  to  the  consignee,  if  his  resi- 
dence is  known,  or  can  be  found  by  any  reasonable  exertions. 
We  think  the  law  should  be  held  to  make  this  requirement,  and 
that  any  usage  against  it  would  be  so  far  against  public  policy, 
that  it  might  well  be  doubted  whether  it  should  be  permitted  to 
control  the  law ;  at  least  not  unless  it  were  quite  universal,  and 
well  known  to  all.  (tv) 

*  Carriers  by  water  cannot  usually  deliver  goods  at  the  resi- 
dence of  their  consignees  without  land  carriage,  and  the  greatest 
amount  of  goods  carried  by  water  is  consigned  to  persons  whose 
warehouse,  or  stores,  are  adapted  to  receive  such  goods  by  being 
near  the  water,  and  generally  on  the  wharves  on  which  they 
may  be  landed.     Hence  a  usage  prevails  very  generally  to  de- 


company  to  take  care  of  tlicm,  under  the 
liability  of  -warehouse-men  or  keepers  of 
goods  for  liire.  And  the  court  are  strongly 
inclined  to  l)e  of  the  opinion  that  it  is  not 
necessary  for  the  company  to  give  notice 
of  tlie  amval  of  the  goods,  but  that  the 
nature  of  the  transportation  is  sucli  as  to 
dispense  with  it.  And  see  Smith  v. 
Nashua  &  Lowell  E.  R.  Co.,  7  Fost.  86. 
But  in  Kicliards  v.  Tiic  London,  &c.,  Eail- 
Avay,  7  C.  I>.  839,  it  was  hdd  that  where  a 
railway  company  employ  ])orters  at  their 
stations  to  convey  passengers'  luggage 
from  the  i-ailwaj'  carriages  to  tlie  carriages 
or  hired  veliicles  of  the  passengers,  the  lia- 
bility of  the  company  as  carriers  continues 
until  the  porters  have  discharged  their 
duty.  That  was  an  action  on  tlie  case 
against  the  defendants  for  the  loss  of  a 
package.  The  first  count  of  the  declara- 
tion stated  tliat  the  defendants  were  tlie 
owners  and  proprietors  of  a  railway  for 
tlie  carriage  and  conveyance  of  passengers 
and  their  luggage,  &c.,  from  A  to  B,  for 
hire ;  that  the  defendants  were  common 
carriers  for  hire  in  and  upon  the  said  rail- 
way ;  that  the  wife  of  the  plaintiff,  at  their 
request,  became  a  passenger  in  and  upon 
the  railway,  to  be  carried  and  conveyed 
therein  and  thereby  from  A  to  B,  together 
with  hcrjuggage,  consisting  of  a  dressing- 
case,  &c.,  also  to  be  carried  and  conveyed 
by  the  defendants,  as  such  carriers,  in  and 
upon  the  railway  from  A  to  B,  and  there, 
to  wit,  at  the  station  or  terminus  at  B, 
safely  and  securely  delivered  for  the  plain- 
till',  I'or  reasonable  reward  to  the  defeiulants 
in  that  behalf:  and  the  breach  alleged 
was,  that  the  defendants,   not  regarding 

[  G92  ] 


their  duty,  did  not  use  due  and  proper  care 
in  and  about  the  carriage  and  conveyance 
of  the  dressing-case  from  A  to  B,  but  took 
so  little  and  such  bad  care  in  and  about 
the  carrying  and  conveying  the  same,  that 
\>j  and  through  the  carelessness,  neejligencc, 
and  improper  conduct  of  the  defendants  in 
the  premises,  the  dressing-case  was  lost. 
It  was  proved  that  the  plaintiff's  wife  be- 
came a  passenger  by  a  first  class  carriage, 
to  be  conveyed  from  A  to  B ;  that  the 
dressing-case  was  placed  in  the  carriage 
under  the  seat;  that  on  the  arrival  of  the 
train  at  B,  the  porters  of  the  company 
took  upon  themselves  the-  duty  of  cany- 
ing  the  lady's  luggage  from  the  railway 
carriage  to  the  hackney  carriage  which 
was  to  convey  her  to  her  residence ;  and 
that  on  her  arrival  there  the  dressing-case 
was  missing.  Held,  that  the  duty  of  the 
defendants  as  common  carriers  continued 
until  the  luggage  was  jjlaccd  in  the  hack- 
ney carriage ;  and  that  the  evidence  en- 
titled the  plaintiff  to  a  verdict  upon  the 
first  count.  And  see  Butcher  v.  The  Lou- 
don and  South-western  Railway  Co.,  29  E. 
L.  &  E.  .347. 

[ir)  Michigan  Central  Railroad  Co.  r. 
Ward,  2  Mich.  .5-38.  See,  however.  Farm- 
ers' &  Mechanics'  Bank  v.  Champlain 
Transportation  Co.  ante,  p.  6G1,  n.  (u)  ; 
and  Gibson  v.  Culver,  ante,  p.  G61,  n.  [i), 
that  notice  may  be  dispensed  with  when 
usage  fully  warrants  it.  See  also  tlie  lan- 
guage of  Iluhhard,  J.,  quoted  in  the  pre- 
ceding note,  and  Shaw,  C.  J.,  Norway 
Plains  Co.  r.  Boston  &  Maine  Railroad,  1 
Gray,  274. 


CH.  XII.] 


BAILMENT. 


-665 


liver  such  goods  by  landing  them  on  a  wharf,  and  giving  imme- 
diate notice  to  the  consignees,  (.t)     And  it  is  held  that  a  carrier 


(x)  Dixon  V.  Dunluim,  14  111.  324; 
Crawford  v.  Chirk,  15  111.  5G1 ;  Hvde  v. 
Trent  &  ^lurscy  Navigation  Co.  5  T.  K. 
389.  In  this  la.st  case  it  was  held,  that 
whore  coniinon  carriere  from  A  to  B 
charged  and  received  for  cartage  of  goods 
to  the  consignee's  house  at  B,  from  a  ware- 
house there,  where  they  usually  unloaded, 
hut  which  did  not  belong  to  them,  they 
must  answer  for  the  goods  if  destroyed  in 
the  warehouse  by  an  accidental  fire,  though 
they  allowed  all  the  profits  of  the  cartage 
to  another  person,  and  that  circumstance 
was  known  to  the  consignee.  This  was  a 
case  of  carriage  by  land.  The  ground 
upon  which  the  defendants  were  held  lia- 
ble was,  that  they  made  a  specific  charge 
for  cartage  from  the  warehouse  where 
they  unloaded  to  the  house  of  the  con- 
signee. The  general  question,  whether 
a  carrier  by  land  is  bound  to  make  a  jier- 
sonal  delivery,  was  not  decided,  thongh  all 
the  judges  expressed  their  opinion  upon 
it ;  that  of  Lord  Krnyon  being  against 
such  liability,  and  that  of  all  the  other 
judges  l)eing  in  favor  of  it.  All  the 
judges,  however,  agreed  that  a  carrier  by 
water,  bringing  goods  from  a  foreign  jiort, 
was  not  bound  to  make  a  jjcrsonal  delivery 
to  the  consignee.  Lord  Kvnijon,  in  the 
course  of  iiis  opinion,  said :  "  If  the  de- 
fendants here  be  liable,  consider  how  far 
the  liability  of  carriers  will  be  extended: 
it  will  atfect  the  owners  of  shi[)s  bringing 
goods  from  foreign  countries  to  merchants 
in  London ;  are  they  bound  to  carry  the 
goods  to  the  warehouses  of  the  merchants 
here,  or  will  they  not  have  discharged 
their  duty  on  landing  them  at  the  wharf 
to  Vhich  they  generally  come  I  It  would 
be  strange,  indeed,  if  tlie  owners  of  a  West 
Indiamau  were  held  liable  for  any  accident 
that  hajjpened  to  goods  brought  by  them 
to  England,  after  having  landed  them  at 
their  usual  wharf."  And  BulUr,  J.,  said  : 
"  It  does  not  appear  to  me  that  the  ditMeul- 
tics  sugirested  respecting  foreign  ships 
exist.  \\'hcn  goods  are  brought  here  from 
foreign  countries,  they  arc  brought  under 
a  bill  of  lading,  which  is  merely  an  under- 
taking to  carry  from  port  to  port.  A  ship 
trading  from  one  port  to  another  has  not 
the  means  of  carrying  the  goods  on  land, 
and,  according  to  the  established  course 
of  trade,  a  delivery  on  the  usual  wharf  is 
such  a  delivery  as  will  discharge  the  car- 
rier."    And,  per  Grose,  J. :  "  The  case  of 


foreign  goods  brouglit  to  this  country  de- 
pends on  the  custom  of  the  trade,  of  which 
the  persons  engaged  in  it  are  su])posed  to 
be  cognizant ;  by  the  general  custom  the 
liability  of  ship  carriers  is  at  an  end  when 
the  goods  are  landed  at  the  usual  wliarf." 
By  the  custom  of  the  Kiver  Thames,  the 
master  of  a  vessel  is  bound  to  guard  goods 
loaded  into  a  lighter,  sent  for  them  by  the 
consignee,  until  the  loading  is  complete, 
and  cannot  discharge  himself  from  that 
obligation  by  telling  the  lighterman  he  has 
not  sufficient  hands  on  board  to  take  care 
of  them.  Catlcy  v.  Wintringham,  Peakc, 
N.  V.  150.  But  it  has  been  much  con- 
tested whether  the  master  is  by  the  usage 
bound  to  take  care  of  the  lighter,  after  it 
is  fully  laden,  until  the  time  whe»  it  can 
be  properly  removed  from  the  ship  to  the 
wharf.  At  a  trial  on  this  Cjuestion,  it  was 
held  that  the  master  was  not  obliged  to  do 
this.  Kobinson  v.  Turpin,  cited  in  Abbott 
on  Shipping,  335.  When  ships  arrive  from 
Turkey,  and  arc  obliged  to  perform  (juaran- 
tine  before  their  entry  into  the  port  of  Lon- 
don, it  is  usual  for  the  consignee  to  send 
down  persons,  at  his  own  expense,  to  pack 
and  take  care  of  the  goods  ;  and  therefore, 
where  a  consignee  had  omitted  to  do  so, 
and  gooils  were  damaged  by  being  sent 
loose  to  shore,  it  was  tteld  that  he  had  no 
right  to  call  upon  the  master  of  the  ship 
for  compensation.  Dunnage  v.  Jolifi'e, 
cited  in  Abi)ott  on  Shipping,  335.  The 
general  question  as  to  the  duty  of  delivery, 
in  the  case  of  carriers  by  water  bringing 
goods  from  a  foreign  port,  was  much  dis- 
cussed in  the  case  of  Cope  r.  Cordova, 
1  Kawle,  203.  Eofjers,  J.,  delivered  the 
judgment  of  the  court,  as  follows  :  "  The 
substance  of  a  bill  of  lading  is  a  formal 
acknowledgment  of  a  receijjt  of  goods, 
and  an  engagement  to  deliver  them  to 
the  consignee  or  his  assigns.  And  this 
suit  is  brought  on  an  alleged  breach  of 
such  a  contract,  in  the  non-delivery  of  a 
crate  of  merchandise  shipjicd  on  board  the 
ship  Lancaster  from  Livcrjtool,  and  con- 
signed to  Raphael  Cordova  in  the  usual 
fonn.  The  goods  were  landed  on  the  wharf 
of  the  Liverpool  packets,  and  whether  this 
amounts  to  a  delivery  to  the  consignee  is 
the  principal  question.  It  must  be  con- 
ceded, that,  by  the  general  custom,  the 
liai)ility  of  ship-owners  is  at  an  cnil  when 
the  goods  are  landed  at  the  usual  wliarf, 
and  this  seems  to  be  taken  by  the  whole 

[693] 


666* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


by  water  may  *land  his  goods  at  any  wharf  usually  used  for 
landing,  and  is  not  bound  to  take  them  to  that  which  is  nearest, 


court  as  a  position  not  open  to  dispute,  in 
the  strongly  contested  case  of  Hyde  v. 
Trent  and  Mersey  Navigation  Co.  o'T.  K. 
394.  The  usage  in  France,  although  not 
uniform  in  every  particular,  goes  to  the 
whole  extent  o'f  the  English  doctrine. 
At  Eochellc,  when  the  vessel  is  moored 
at  the  wharf,  the  merchant  freigliters,  at 
their  own  expense  and  risk,  have  their 
merchandise  deposited  upon  the  deck  of 
the  vessel.  From  the  time  when  they 
reach  the  deck,  it  is  the  business  of  the 
hands  on  board  to  receive  and  place  them 
in  their  proper  situation.  In  unlading, 
the  freighters  have  thena  taken  in  like 
manner  from  the  deck,  by  their  porters, 
to  lowe^  them  to  the  wharf,  from  which 
time  they  are  at  the  merchant's  risk, 
without  any  liability  on  the  part  of  the 
master  of  "the  vessel,  if  they  happen  to 
sustain  any  damage  as  they  are  lowered 
from  the  vessel.  At  Marseilles  it  is  the 
business  of  the  master  to  put  the  mer- 
chandise on  the  wharf,  after  which  he 
is  discharged.  1  Valin,  510.  '  And  this 
rule  of  the  French  .commercial  code  is 
cited  with  approbation  by  the  learned 
commentator,  in  page  636  of  his  Trea- 
tise on  the  ^Marine  (Jrdonnance.  As  the 
master,  in  conformity  with  the  prevailing 
usage  in  this  resjject,  upon  his  airival  de- 
posits in  the  custom-house  a  manifest,  or 
general  list  of  the  cargo,  with  a  designa- 
tion of  all  the  individuals  to  whom  each 
parcel  of  tlie  merchandise  should  be  re- 
spectivelv  delivered,  and  as  there  are  al- 
ways officers  of  the  customs  who  attend 
to  the  unlading,  to  superintend,  and  make 
a  list  of  all  the  merchandise  which  leaves 
the  vessel,  for  the  purpose  of  ascertaining 
whether  the  manifest  of  the  cargo  which 
has  been  furnished  is  accurate  and  faith- 
ful, and  by  this  means  the  lists  of  these 
officers  constitute  a  proof  of  the  landing 
of  the  merchandise,  it  is  the  end  of  the 
engagement  which  the  master  has  con- 
tracted by  the  bill  of  lading.  If,  then, 
disputes  arise,  it  is  only  when  in  the  bus- 
tle of  a  hasty  discharge  mistakes  occur  on 
the  part  of  those  who  convey  the  mer- 
chandise to  the  wai-ehouses,  l)y  introduc- 
ing articles  into  one  which  ought  to  have 
gone  into  another.  The  error  is  almost 
always  discovered  by  ascertaining  what 
parts  of  the  cargo  of  the  vessel  have  been 
conveyed  to  the  different  warehouses. 
'But  if  it  happens,'  says  the   commenta- 

[G94] 


tor,  '  that  the  error  cannot  be  discovered,  • 
the  master  is  always  discharged  when  it 
appears  by  the  list  of  the  officers  of  the 
royal  customs  that  he  has  caused  all  the 
merchandise  in  his  bills  of  lading  to  be 
jilaccd  on  the  wharf.'  The  ordinances  of 
Eochclle  and  Mai'seilles  are  the  text  from 
which,  in  the  manner  of  our  own  com- 
mentators, he  proceeds  to  deduce  the 
general  custom.  I  understand  from  the 
observations  of  the  commentator,  that 
the  usage  is  not  confined  to  Rochelle  and 
Marseilles,  but  that  in  France,  as  in  Great 
Britain,  it  is  coextensive  with  the  limits 
of  the  kingdom  ;  and  in  this  country  we 
are  not  without  authority  to  the  same  pur- 
pose. The  usage  has  been  found  to  pre- 
vail in  a  sister  city,  as  appears  from  a  case 
the  name  of  which  is  not  now  recollected, 
lately  determined  by  Judge  Irving,  in  New 
York.  The  same  point  has  also  been 
ruled  by  the  Supreme  Court  of  Massa- 
chusetts, in  Chickering  i'.  Fowler,  4  Pick. 
371.  A  promise  by  a  master  of  a  vessel 
to  deliver  goods  to  a  consignee  does  not 
require  that  he  should  deliver  them  to  the 
consignee  personally,  or  at  any  particular 
wharf.  It  is  sufficient  if  he  leaves  them 
at  some  usual  place  of  unlading,  giving 
notice  to  the  consignee  that  they  are  so 
left.  There  is  an  obvious  policy  in  com- 
mercial nations  conforming  to  the  usages 
of  each  other,  and  it  is  also  important  that 
there  be  a  uniformity  of  decisions  in  our 
domestic  tribunals  on  mercantile  cpiestions. 
As  there  will  be  great  convenience  in  the 
local  usage  conforming  to  the  general  cus- 
tom, it  %\"ill  be  incumbent  on  those  who 
maintain  the  contrary  to  make  the  excep- 
tion from  the  rule  plainly  appear.  In 
unloading  a  vessel  at  the  port  of  Philadel- 
phia, it  is  usual  as  soon  as  articles  of  bulk, 
such  as  crates,  are  brought  upon  deck,  to 
pass  them  over  the  side  of  the  ship,  and 
land  them  on  the  wharf.  Tlie  owners 
station  a  clerk  on  the  wharf,  m'Iio  takes  a 
memorandum  of  the  goods,  and  tlie  day 
they  are  taken  away,  and  this  for  the  in- 
formation of  his  employers.  A  manifest 
or  report  of  the  cargo  is  made  by  tlie  mas- 
ter, and  deposited  at  the  custom-house, 
and  the  collector,  on  the  arrival  of  the 
vessel  within  his  district,  puts  and  keeps 
on  board  one  or  more  inspectors,  whose 
duty  it  is  to  examine  the  contents  of  the 
cargo,  and  superintend  its  deliver3\  And 
no  goods  from  a  foreign  port  can  be  un- 


CH.  xir.] 


BAILMENT. 


*667 


or  most  *  convenient  to  the  consignee,  or  that  which  he  specially 
directs,  unless  the  carrier  has  previously  agreed  to  obey  such 


laden  or  delivered  from  the  sliip  in  the 
United  States,  hnt  in  ojjen  day,  between 
tlie  rising;  and  setting  of  the  sun,  except 
by  special  license;  nor  at  any  time  with- 
out a  ])ermit  from  the  collector,  which  is 
granted  to  the  consignee  upon  payment 
of  duties,  or  securing  them  to  be  paid. 
The  holders  of  a  bill  of  lading  arc  pre- 
sumed to  be  well  informed  of  the  probal)lc 
period  of  tiie  vessel's  arrival,  and  at  any 
such  arrival  is  matter  of  notoriety  in  all 
maritime  places.  The  consignee  is  pre- 
viously informed  of  the  shipment,  as  it 
is  usual  for  one  of  the  bills  of  lading  to 
be  kept  by  the  merchant,  a  second  is  trans- 
mitted to  tlie  consignee  l)y  the  post  or 
packet,  while  the  third  is  sent  by  the  mas- 
ter of  the  ship  together  witii  tlie  goods. 
Witli  the  benefit  of  all  these  safeguards,  if 
the  consignee  uses  ordinary  diligence, 
there  is  as  little  danger  in  this  country  as 
in  England  and  France,  of  inconvenience 
or  loss,  whereas  the  risk  would  be  greatly 
increased  if  it  should  be  the  duty  of  the 
ship-owner  to  see  to  the  actual  receipt  of 
the  goods,  and  particularly  in  the  case  of 
a  general  ship  with  numerous  consign- 
ments on  board,  manned  altogether  by 
foreigners  unacquainted  with  the  language 
at  tlie  port  of  delivery.  I  have  taken 
some  pains  to  ascertain  the  opinion  and 
practice  of  merchants  of  the  city  on  tliis 
qnestion,  which  is  one  of  general  concern. 
My  iufpiiries  have  resulted  in  this,  tliat 
the  goods,  when  landed,  have  heretofore 
been  considered  at  tlie  risk  of  tlic  con- 
signee, and  that  the  general  understanding 
has  been,  that  the  liability  of  tiie  sliip- 
owner  ceases  upon  the  landing  of  the 
goods  at  the  usual  wharf.  I  see  no  reason 
to  depart  from  a  rule  which  has  received 
such  repeated  sanctions,  from  which  no 
inconvenience  has  heretofore  resulted,  and 
which  it  is  believed  in  practice  has  con- 
duced to  tlic  general  welfare."  The 
learned  judge  concluded  with  saying  that 
the  court  would  wish  to  be  understood  as 
giving  no  opinion  on  the  law  which  regu- 
lates tlie  internal  or  coasting  trade,  to 
which  they  understood  the  case  of  ()s- 
trauder  r.  Brown,  15  Johns.  .^O,  to  apply; 
and  that  they  did  not  consider  the  present 
decision  as  interfering  with  the  ]>rinciples 
(if  tiiat  case.  It  has  generally  been  held, 
as  tlie  learned  judge  intimates,  tiiat  the 
rule  is  more  strict  in  regard  to  delivery 
in  the  internal  and  coasting  trade  than  in 


the  foreign  trade.  TJius,  in  "Wardell  v. 
Moiirillyan,  2  Esp.  693,  which  was  an 
action  on  the  case  for  not  delivering  an 
anchor  sent  by  the  defendant's  hoy,  it 
appeared  in  evidence  that  the  defendant 
was  the  owner  of  an  hoy,  which  sailed 
from  Deal  to  Dice's  Quay,  near  London 
Bridge  ;  that  the  anchor  had  been  shipped 
on  board  this  hoy,  with  a  direction  to  be 
delivered  to  Messrs.  Bell,  Anchram,  and 
Buxton  ;  that  the  defendant  had  delivered 
it  at  Dice's  Quay ;  that  the  wharfinger  had 
paid  the  lioyman  the  freight,  and  Iiad  given 
liim  a  receipt  for  the  anchor ;  and  fine  wit- 
ness proved  that,  except  in  the  case  of 
flonr,  the  hoymen  never  concerned  them- 
selves about  goods  after  tliey  had  delivered 
them  at  the  whaif.  Lord  Keiiijon,  after 
making  some  observations  upon  the  evi- 
dence, left  it  to  the  jury  to  say  what  was 
the  custom  ;  and  they  found  a  verdict  for 
the  plaintiff.  So  in  Ilemiiiiill  i\  Clienie, 
G  W.  &  S.  62.  That  was  an  action 
against  the  defendant,  the  owner  of  a 
keel-boat  on  the  Ohio  River,  to  recover  the 
price  of  a  box  of  dry  goods  delivered  to 
him  at  PittslHirgh,  and  consigned  to  Kow- 
land.  Smith,  &  Co.,  Louisville.  The  de- 
fendant gave  evidence  to  show  that  the  box 
of  goods  in  question  was  carried  safely  to 
Louisville,  and  deposited  on  the  wharf 
there ;  and  that  notice  was  given  to  the 
consignees.  The  question  was  whether 
there  was  a  sufficient  delivery.  Grur,  J., 
in  summing  up  to  the  jury,  said:  "It  is 
contended  tliat,  according  to  the  custom 
of  the  port  of  Louisville  and  tlie  other 
cities  on  these  western  rivers,  the  dejiosit- 
ing  of  goods  on  the  wharf,  and  giving 
notice  to  the  consignee,  constitute  a  suffi- 
cient delivery  in  law,  whether  the  consignee 
actually  receives  the  goods  or  not.  In 
other  words,  the  care  and  res]ionsii)ility  of 
the  carrier  cease  tlie  moment  he  has  de- 
posited goods  on  the  wharf  and  sent  notice 
to  the  consignee,  and  this  whether  the 
consignee  refuses  or  neglects  to  receive 
them  or  not.  If,  in  such  cases,  the  car- 
rier may  abandon  the  goods  on  the  wharf, 
and  the  profierty  of  the  distant  owners 
thus  l)e  left  as  a  subject  of  jilnnder  to  the 
(irst  tinder,  it  must  be  admitted  that  the 
subject  is  one  of  consideralilc  interest  to 
those  who.se  projierty  is  committed  to  the 
chances  of  transportatinii  on  these  western 
waters,  and  has  necessarily  to  pa>8  through 
the  hands  of  so  many  different  caniei-s  and 

[  G'JO  ] 


I 


668-669* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


direction.  (//)  But  in  all  such  cases  of  landing,  and  indeed  in 
all  cases  of  delivery  of  goods  by  a  carrier,  in  any  other  way 
than  putting  them  into  the  actual  possession  of  the  consignee, 
or  into  his  house  or  store,  it  is  absolutely  essential  *that  notice 
should  be  given  to  the  consignee,  so  that  he  may  forthwith  take 
possession  of  the  goods,  (c)      We  have  seen  that  leaving  goods 


consijrnecs.  It  must  be  apparent  to  every 
one,  that  however  much  steamboat  men 
and  otlier  carriers  on  our  rivers  may  affect 
the  diction  and  phraseolojjy  of  maritime 
cities  in  their  bills  of  lading,  insurances, 
&c.,  yet  that  a  hasty  or  indiscriminate  ap- 
plication of  our  commercial  and  maritime 
code  of  laws  and  customs  miglit  not  be 
convenient  or  judicious.  Goods  may  be 
'  shipped '  on  board  steamboats  and  canal- 
boats  from  the  '  port '  of  Pittsburgh  to  the 
'  port '  of  Louisville ;  and  yet  it  might 
happen  that  tlie  rules  of  commercial  law, 
Avl)ich  regulate  trade  on  tlie  ocean,  and 
frciglit  shipped  from  Liverpool  to  Phila- 
delphia, might  be  veiy  inconvenient  of 
application  to  our  western  waters.  Hence 
in  Cope  v.  Cordova,  1  Rawle,  203,  which 
decides  that  '  the  liability  of  the  ship-owner 
ceases  when  the  goods  are  landed  at  the 
usual  wharf,'  many  good  reasons  arc  given 
Avhy  such  a  rule  exists  in  the  trade  between 
two  maritime  cities,  whicli  cannot  apply 
to  this  shifting  transportation  from  point 
to  point  on  our  western  watei'S  ;  and  the 
learned  judge  wlio  delivers  the  opinion  of 
the  Supreme  Court  in  that  case  is  careful 
to  observe,  that  they  do  not  intend  by  that 
decision  to  interfere  with  the  law  that 
regulates  the  internal  or  coasting  trade, 
or  at  all  to  dissent  from  the  case  of  Os- 
trander  v.  lirown,  15  Johns.  39."  The 
learned  judge  then  proceeded  to  comment 
on  the  unreasonableness  of  holding  such  a 
delivery  to  be  sufficient,  and  the  jury  un- 
der his  instructions  found  a  A'crdicit  for  the 
plaintiff.  The  case  was  afterwards  carried 
up  to  the  Supreme  Court,  and  that  court 
held  the  instruction  to  be  correct.  To  the 
same  effect  is  Ostrandcr  v.  Brown,  15 
Johns.  39,  though  the  distinction  between 
the  internal  and  coasting  trade  .and  foreign 
trade  is  not  expressly  taken.  In  that  case, 
goods  were  put  on  board  of  the  defendant's 
vessel  to  be  carried  to  Albany,  and,  on 
arriving  there,  were  bv  tlie  defendant's 
direction  put  on  the  wharf.  It  was  held, 
that  this  was  not  a  delivery  to  the  con- 
signee, and  that  evidence  of  a  usage  to 
deliver  goods  in  this  manner  was  imma- 

[G9G] 


terial,  but  that  the  defendant  was  liable  in 
an  action  of  trover  for  such  part  of  the 
goods  as  was  not  actually  delivered  to  the 
consignee. 

(ij)  Chickering  v.  Fowler,  4  Pick.  371. 

(?)  This  was  very  authoritatively  de- 
clared by  Mr.  Justice  Porter,  in  Kohn  v. 
Packard,  3  Louis.  224.  "  The  contract  of 
affreightment,"  said  he,  "does  not  impose 
on  the  owner  of  the  vessel  the  obligation 
to  deliver  merchandise  shipped  on  board 
of  her  to  the  consignee,  at  his  residence. 
It  is  a  contract  to  carry  from  port  to  port, 
and  the  owners  of  a  vessel  fulfil  the  duties 
imposed  on  them,  by  delivering  the  mer- 
chandise at  the  usual  places  of  discharge. 
The  authorities  cited  on  argument,  as  well 
as  the  reason  of  the  thing,  clearly  establish 
this  rule.  But  though  tlie  contract  does 
not  require  the  owners  of  the  vessel  to  de- 
liver the  goods  at  any  other  place  in  the 
port  but  that  where  ships  generally  dis- 
charge tlieir  cai-goes,  it  is  not  to  be  con- 
cluded th.at  they  have  a  right  to  land  the 
goods  at  these  places  and  release  them- 
selves, by  doing  so,  from  all  further  care 
and  responsibility,  without  giving  notice 
to  the  person  who  is  to  receive  them.  The 
authorities  on  this  subject  arc  contradic- 
tory. Some  of  those  cited  supjioi't  fully 
the  position  that  a  landing  on  the  wharf  is 
equivalent  to  a  deliveiy.  We  should  have 
reviewed  them,  had  not  the  counsel  who 
argued  the  case  careful!}',  on  the  part  of 
the  defendant,  very  properly  ref"raincd 
from  pressing  the  rule  to  that  extent.  We 
have  the  high  authority  of  Chancellor 
Kent  for  saying,  tliat  the  better  opinion  is, 
there  must  be  a  delivery  on  the  wharf  to 
some  person  autliorized  to  receive  the 
goods,  or  some  act  which  is  eciuivalcnt  to, 
or  a  substitute.)  for  it.  The  contrary  doc- 
trine appears  to  us  too  repugnant  to  rea- 
son and  justice  to  be  sanctioned  by  any 
one  who  will  follow  it  out  to  the  conse- 
quences to  wliicli  it  inevitably  leads.  Per- 
sons to  wliom  goods  are  sent  may  be  ab- 
sent from  the  port  when  tlie  ship  reaches 
it ;  they  may  be  disabled  by  sickness  from 
attending  to  their  business ;  they  may  not 


CH.  XII.] 


BAILMENT. 


*670 


in  the  office,  or  store,  or  even  in  the  carriage  of  the  carrier,  is  no 
delivery  to  him,  to  matke  him  responsible  for  them  as  carrier, 
unless  he  has  notice  of  sucii  delivery,  that  he  may  forthwith 
take  charge  of  the  goods  and  provide  for  their  safety.  In  the 
same  way,  no  delivery  hjj  him  discharges  him  from  responsibility, 
unless  the  party  entitled  to  the  goods  has,  in  fact,  or  by  con- 
struction of  law,  such  knowledge  of  the  delivery  as  will  enable 
him  to  take  charge  of  them  at  once.  The  notice  must  there- 
fore be  prompt,  and  distinct.  And  indeed  it  seems  to  be  settled 
in  *  England,  that  the  landing  of  goods  upon  a  wharf,  with  no- 
tice, is  not  a  sufficient  delivery  of  them,  unless  made  so  by  a 
distinct  and  established  usage,  [a) 


be  informed  of  the  arrival  of  the  vessel. 
Under  such  circumstances,  or  many  others 
similar  tliat  may  he  su])i)oscd,  it  would  be 
extraordinary  indeed  if  the  captain  were 
anthorizcd  to  tlu'ow  the  goods  on  shore, 
wlicrc  they  could  not  fail  to  l)e  exposed  to 
injury  from  the  wcatlier,  and  would  be 
liable  to  be  stolen.  There  would  belittle 
ditfcronce  in  such  an  act  and  any  other 
that  would  occasion  their  loss.  Contracts 
impose  on  parties  not  merely  the  obliga- 
tions expressed  in  them,  but  every  thing 
which  by  law,  equity,  and  custom,  is  con- 
sidered as  incidental  to  the  particular  con- 
tract, or  nrcessari/  to  carnj  it  into  effect. 
La.  Code,  1987.  Delivery  is  not  merely 
an  incident  to  the  contract  of  affreight- 
ment, it  is  essential  to  its  discharge,  and 
as  there  cannot  be  a  deliver}'  without  the 
act  of  two  parties,  it  is  indispensable  the 
freighter  should  be  apjirised  when  and 
where  the  ship-owner,  or  his  agent,  is  ready 
to  hand  over  the  goods."  See  also. 
Northern  r.  Williams,  6  Louis.  Ann.  Kej). 
578 ;  House  v.  The  Schooner  Lexington, 
2  N.  Y.  Legal  Observer,  4  ;  Chickering  r. 
Fowler,  4  Tick.  371  ;  Price  r.  Powell,  .T 
Comst.  :V22  ;  Michigan  Central  Railroad 
Co.  V.  Ward,  2  Mich.  ,5.38.  As  to  what 
will  constitute  a  sufficient  notice,  see  Kohn 
V.  Packard,  3  Louis.  224. 

(a)  Gatlitfe  v.  IJourne,  4  Bing.  N.  C 
314.  In  tills  case,  to  a  count  in  assumpsit, 
by  A  against  B,  upon  a  contract  by  B, 
safely  and  securely  to  carry  in  a  steam- 
vcsscl  certain  goods  of  A  from  Belfast  to 
Dublin,  and  from  l)ul)lin  to  Loudon,  and 
to  deliver  the  same  at  London  to  A,  or  to 
his  assigns,  upon  jiayment  of  freight, — 
assigning  a  breach  in  the  non-delivery  of 

VOL.   I.  5"J 


the  goods  in  London,  B  pleaded  that  the 
goods  were  put  on  board  under  a  bill  of 
lading,  by  which  they  were  made  deliver- 
able to  A,  or  his  assigns,  on  payment  of 
freight ;  that  after  the  arrival  of  the  vessel 
and  goods  at  London,  B  caused  the  goods 
to  be  unshipped,  and  safely  and  securely 
landed  and  deposited  ujion  a  certain  wharf 
at  London,  there  to  remain  until  they  could 
be  delivered  according  to  the  bill  of 
lading, — the  said  wharf  being  a  place  at 
which  goods  conveyed  in  steam-vessels 
from  Dublin  to  London  were  accustomed 
to  be  landed  and  deposited,  for  the  use  of 
consignees,  and  a  place  fit  for  such  pur- 
pose ;  and  that  the  goods,  whilst  they  re- 
mained upon  the  said  wharf,  and  before  a 
reasonable  time  for  the  delivery  thereof 
had  elapsed,  were  accidentally  destroyed 
by  fire.  It  was  further  pleaded  to  the 
same  count,  that  after  the  arrival  of  the 
vessel  and  goods  at  London,  B  was  ready 
and  willing  to  deliver  the  goods  to  A  or 
his  assigns,  but  that  neither  A  nor  his  as- 
signs was  or  were  there  ready  to  receive 
the  same ;  whereupon  B  caused  the  goods 
to  be  landed  on  the  said  wharf,  there  to 
remain  until  A  or  his  assigns  should  come 
and  receive  the  same,  or  until  the  same 
could  I)e  conveyed  and  delivered  to  A  or 
his  assigns,  with  the  like  averment  as  to 
the  said  wliarf  being  a  usual  and  a  fit 
place  ;  and  tliat  tiie  goods,  whilst  they  re- 
mained upon  the  said  wharf,  and  before 
A  or  his  assigns  came  or  sent  for  the  same, 
and  before  B  had  been  rciiuestcil  to  deliver 
the  same  to  A  or  his  assigns,  or  a  reason- 
able time  for  conveying  them  from  the  said 
wharf  to  A  or  his  .assigns  had  elapsed,  and 
before  the  same  could  be  removed  there- 

[C97] 


671* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


If  the  carrier  be  a  warehouse-man,  or  if,  without  being  a  reg- 
ular warehouse-man,  he  has,  as  most  common  carriers  have,  a 
place  of  reception  and  deposit  for  his  goods,  it  may  often  be  a 
question  of  some  difficulty,  after  the  transportation  *is  com- 
pleted, whether  the  carrier  retains  that  character  and  its  pecul- 
iar responsibility.  The  answer,  in  general,  is  this.  Where,  by 
the  known  usage  and  course  of  business,  the  goods,  when  they 
arrive,  are  to  be  placed  in  the  carrier's  warehouse  or  office,  and 
kept  there  without  pay  to  him  until  the  owner  takes  them,  then 
his  responsibility  as  carrier  ceases  upon  their  arrival  and  notice 
to  the  owner ;  because  keeping  them  in  his  office  is  now  for  the 
benefit  of  the  owner  of  the  goods  exclusively,  as  it  is  for  his 
interest  to  have  them  removed,  so  that  they  may  no  longer  en- 
cumber his  office,  (b)  This  reason  does  not  apply,  where  com- 
pensation is  made  for  the  storage,  distinct  from  that  for  trans- 
portation. But  here  the  two  duties  of  storing  and  of  carrying 
are  perfectly  distinct,  made  so  by  the  undertaking  of  the  party ; 
and  the  responsibility  which  belongs  to  one  of  these  contracts 
cannot  be  extended  to  the  other. 

Where  there  is  no  usage,  nor  any  special  agreement,  which 
requires  that  the  goods  should  be  left  in  the  store  or  office  of 
the  carrier  after  their  arrival,  then,  as  we  have   seen,  he  is  not 


from,  were  accidentally  destroyed  by  fire. 
The  court  held  that  both  pleas  were  bad. 
And  TincM,  C.  J.,  said:  "The  defend- 
ants, in  each  of  the  pleas,  profess  to  sub- 
stitute a  delivery  at  Fenning's  wharf,  in 
the  port  of  Loiulon,  for  and  in  the  place 
of  a  delivery  '  at  the  port  of  London,  to 
the  plaintiff  or  his  assigns,'  as  required  by 
the  terms  of  the  bill  of  lading ;  and  call 
upon  us  to  say,  by  our  judgment,  that 
such  delivery,  under  the  circumstances 
stated  in  each  plea,  is  a  good  delivery  in 
point  of  law  under  the  bill  of  lading.  But 
we  know  of  no  general  rule  of  law  which 
governs  the  delivery  of  goods  under  a  bill 
of  lading,  where  such  delivery  is  not  ex- 
pressly in  accordance  with  the  terms  of 
the  bill  of  lading,  except  that  it  must  be 
a  delivery  according  to  the  practice  and 
custom  usually  observed  in  the  port  or 
place  of  delivery.  An  issue  raised  upon 
an  allegation  of  such  a  mode  of  delivery 
would  accommodate  itself  to  the  facts  of 
each   particular  case;    and  would   let  in 

[698] 


every  species  of  excuse  from  the  strict  and 
literal  compliance  with  the  precise  terras 
of  the  bill  of  lading,  which  must  neces- 
sarily be  allowed  to  prevail  with  reference 
to  the  means  and  accommodation  for  land- 
ing goods  at  different  places  ;  the  time  of 
•  the  arrival  and  departure  of  the  vessel ; 
the  state  of  the  tide  and  wind  ;  interrup- 
tions from  accidental  causes ;  and  all  the 
other  circumstances  which  belong  to  each 
particular  ])oit  or  place  of  delivery.  The 
delivery,  therefore,  of  these  goods,  not 
being  alleged  in  the  picas  to  have  been 
made  according  to  the  custom  or  practice 
of  the  port  of  London,  we  cannot  take 
notice  that  it  is  sanctioned  by  sucli  prac- 
tice ;  and  tlic  delivery  must  therefore  stand 
or  fall  u])on  the  allegations  contained  in 
each  plea."  S.  C.  3  M.  &  Gr.  643,  7  id. 
850.  See  also,  Dixon  v.  Dunham,  14  111. 
324. 

(i)  Sec  ante,  p.  619,  n.  (r),  and  p.  663, 
n.  {v). 


CH.    XII.] 


BAILMENT. 


-671 


justified  in  keeping  them  there ;  it  is  his  duty  to  deliver  them  at 
once.  And  if  he  does  not  deliver  them,  and  so  fails  in  this 
duty,  he  continues  liable  as  carrier ;  or,  if  not  as  carrier ;  still 
liable  absolutely  for  loss  or  injury  to  the  goods  while  in  his  pos- 
session, because  that  possession  is  wrongful,  (c)     And  in  some 


(c)  Miller  v.  The  Steam  Nav.  Co.  13 
Barl).  301.  In  this  case  goods  helongiiij: 
to  the  plaintiff' were  received  at  the  city  of 
Kew  York  by  the  defendants,  who  were 
common  carriers  on  the  Hudson  River  be- 
tween Albany  and  New  York,  to  be  car- 
ried l)y  them  to  Albany,  and  there  de- 
livered" to  A,  the  agent  of  a  line  of  boats 
on  tiie  Erie  canal.  The  goods  were  put 
on  board  a  barge  of  the  defendants,  at  New 
York,  and  taken  to  Albany,  wliere  they 
arrived  on  the  morning  of  the  17th  of 
August,  1848.  A  portion  of  them  were 
unloaded  from  the  l)arge,  and  put  into  a 
float  in  the  Albany  basin,  belonging  to 
the  defendants,  which  was  a  stationary 
floating  craft,  kept  for  the  purpose  of  re- 
ceiving goods  brought  up  the  river,  and 
from  which  goods  were  re-shipi)ed  into 
canal  boats  to  be  taken  west.  While  the 
goods  were  in  the  process  of  being  passed 
from  the  barge  to  the  float,  and  before 
they  were  delivered  to  A,  they,  together 
with  the  barge  and  float,  were  destroyed 
by  a  fire  which  originated  in  the  city  of 
Albany,  and  afterwards  spread  to  the 
piers  and  ship])ing.  JLId,  that  the  de- 
fendants, having  contracteil  to  deliver  the 
goods  to  A,  at  Alljau}-,  they  continued  to 
hold  the  relation  of  common-curriers  until 
the  goods  were  so  delivered,  or  until  a 
reasonable  time  shoidd  have  elapsed  after 
notice  to  A  of  their  arrival,  and  an  ofi'cr 
to  deliver;  and  that  tliey  were  liable  for 
the  value.  Held  also,  that  the  defendants 
were  not  to  be  treated  as  iriinlifinse-men  of 
the  goods,  after  the  nrrival  of  the  barge  at 
the  ])ier  at  Alliany  ;  that  they  had  no  right 
to  warcliouse  the  goods,  cxcejit  in  case  of 
the  absence  of  A,  or  his  refusal  or  neglect 
to  receive  them,  after  notice.  WiUes,  J., 
sai<l :  "  It  is  contended,  on  behalf  of  the 
appellants,  that  upon  the  arrival  of  the 
barge  at  (he  i)ier  at  Albany,  their  relation 
became  changed  from  common  carriers  to 
that  of  warehouse-men  of  the  goods  in 
question,  and  that  iis  there  is  no  negli- 
gence imputed  to  them,  and  as  Wiirehousc- 
mcn  arc  only  liat)le  in  case  of  negligence, 
no  recovery  can  be  had  ag:dnst  them. 
The  contract  of  shipment  was  to  deliver 
the  goods  to  F.  M.  Adams,  the  agent,  at 


Albany,  of  the  Rochester  city  line,  which 
line  the  respondent  had  selected  for  their 
trans])ortation  west  of  Alljany ;  and,  in 
my  judgment,  the  appellants  continued 
to  hold  the  relation  of  common  carriers  in 
reference  to  the  goods,  until  they  were  .so 
delivered,  or  until  a  reasonable  time  should 
have  elapsed  after  notice  to  the  agent  of 
their  arrival,  and  an  oHer  to  deliver.  We 
so  ruled  on  a  similar  question  in  the  case 
of  Goold  and  others  r.  Cha])in  and  Mal- 
lory,  10  Barb.  G12.  The  appellants  had 
no  right  to  warehouse  the  goods,  unless  in 
case  of  the  absence  of  the  jierson  author- 
ized to  receive  tliem,  or  liis  refusal  or 
neglect  to  receive  them,  after  reasonable 
notice.  If  the  contract  was  to  deliver 
them  to  Adams,  they  had  no  more  right 
to  store  them  at  Albany  than  at  New 
York,  or  any  intcrmeiliate  point  on  the 
river,  unless  for  one  of  the  reasons  men- 
tioned. The  legal  obligations  and  liabil- 
ities of  the  a]i])ellants,  as  common  carriers, 
were  fastened  njion  them  from  the  time 
they  received  tiie  goods  in  New  York,  un- 
til they  had  performed  the  service  which 
the  transaction  imidied,  and  delivered 
them  agreeably  to  their  contract,  unless 
prevented  by  the  conduct  of  the  owner  or 
his  agent.  There  does  not  a])i)ear  to  have 
been  any  notice  given  to  Adams  of  the  ar- 
rival of  the  goods  :  no  ofl'erto  deliver  them 
to  him ;  no  act  on  the  part  of  the  appel- 
lants, indicating  that  they  desired  or  in- 
tended to  change  their  character  from  com- 
mon carriers  to  that  of  warehouse-men. 
Adams  went  on  board  the  barge  some  two 
or  three  hours  after  its  arrival,  and  saw  the 
triji  book.  He  testifies  that  he  had  a  boat 
near  by,  ready  to  take  the  goods  from  the 
float,  u])oii  which,  as  a|ipears  by  the  testi- 
mony of  the  eajitain  of  the  barge,  it  was 
the  invariable  custom  of  the  defendants  to 
ship  goods  brought  by  them  u])  the  river, 
before  they  were  delivered  on  board  the 
canal  boats.  The  goods  in  question  were 
in  the  jiroccss  of  being  passed  from  the 
barge  to  the  float,  and  before  it  was  com- 
pleted, and  while  a  ])ortion  of  them  wa.s 
in  the  float  and  the  residue  in  the  l)arge, 
the  fire  drove  away  the  liands  engaged, 
and  destroyed  boni  the  barge  and  float, 

[  699  ] 


672*-673* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


cases  of  non-delivery  the  carrier  may  *be  sued  in  trover,  as  hav- 
ing converted  the  goods  to  his  own  use.  (d) 

In  general,  when  the  owner  or  consignee  may  be  considered 
as  himself  taking  charge  of  the  goods,  or  when  his  acts  or  lan- 
guage justify  the  carrier  in  believing  that  the  owner  *considers 
himself  as  in  charge  of  them,  then  the  responsibility  of  the  car- 
rier ends,  (e) 

The  particular  obligation  of  stage-coach  proprietors,  rail- 
roads, and  the  like,  to  deliver  the  baggage  of  their  passengers, 
has  been  much  considered.  These  carriers  are,  principally,  car- 
riers of  passengers,  and  only  incidentally  of  the  baggage  of  the 
passengers,  for  which  they  do  not  generally  receive  any  distinct 
compensation.  Nevertheless  they  are  held  very  strictly,  both 
from  the  nature  of  the  contract  and  from  motives  of  public 
policy,  to  the  obligation  of  delivering  the  baggage  of  each  pro- 
prietor to  him  at  the  end  of  the  journey,  in  a,ll  cases.  (/)  And 
if  such  delivery  be  made  erroneously,  but  innocently,  on  a 
forged  order,  the  carrier  is  still  held,  [g-) 

■As  the  carrier  is  bound  to  deliver  the  goods,  so  the  owner  is 
bound  to  receive  and  remove  them,  and  pay  the  freight  for 
them.  And  if  the  carrier  is  warranted  in  delivering  the  goods 
by  keeping  them  at  his  own  office  or  warehouse  and  giving 
notice,  and  if  he  has  given  such  notice,  and  the  owner  delays 
more  than  a  reasonable  time  to  take  them,  they  are  no  longer  at 


with  all  the  goods  they  contanied.  Under 
these  circumstances,  it  is  preposterous  to 
contend  tliat  there  was  any  thing  like  an 
attempt  or  intention  to  store  the  goods,  or 
any  occasion  or  justification  for  storing 
them,  if  such  had  been  tlie  intention.  On 
the  contrary,  the  appellants  were  mei'ely 
preparing  and  getting  ready  to  deliver 
them,  Imt  had  not  commenced  the  deliv- 
ery. Tliey  were  not  in  fact  ready  or  in  a 
situation  to  commence  the  delivery.  The 
goods  were  still  in  their  possession  as  com- 
mon carriers,  to  all  intents  and  purposes." 
See  also,  Goold  r.  Chapin,  10  Barb.  612. 

(d)  BuUard  v.  Young,  3  Stewart,  46.  A 
undertook  to  carry  certain  ilour  for  B  to  a 
certain  place,  and  having  deposited  it  by 
the  way,  C  took  part  of  it  by  mistake.  B 
refusing  to  receive  part  only,  C  received 
the  remainder,  and  paid  A  for  the  whole. 
This  was  held  to  amotint  to  a  conversion 

[700] 


by  A,  for  which  B  could  maintain  trover 
against  liini.  And  per  ]Vfiite,  J. :  "  Young 
was  a  bailee  or  carrier,  who  undertook  to 
deposit  the  flour  at  a  particular  place  for 
the  plaintiff.  This  he  did  not  do,  but  wil- 
fully and  of  his  own  accord  left  it  at  an- 
other place,  whence  it  was  innocently 
taken  by  a  third  person,  who  ])aid  him, 
the  defendant,  for  it."  See  Rooke  i'.  Mid- 
land Railway  Co.  14  E.  L.  &  E.  175. 

(e)  Thomas  v.  B.  &  P.  Railroad  Cor- 
poration, 10  Met.  472;  Strong  i-.  Natally, 
4  B.  &  P.  16  ;  Eagle  v.  White,  6  Wliart. 
505 ;  Lewis  v.  The  Western  Railroad 
Corp.  11  Met.  509. 

(/  )  Richards  v.  The  London,  &c..  Rail- 
way, 7  C.  B.  8.39  ;  Hollister  c.  Nowlcn, 
19  "Wend.  234;  Cole  v.  Goodwin,  id.  251  ; 
Boraar  v.  Maxwell,  9  Humph.  621  ;  Dill 
i\  So.  Car.  Railroad  Co.,  7  Rich.  Law,  158. 

((/)  Powell  V.  Myers,  26  Wend.  590. 


CH.  xir.] 


BAILMENT. 


*674 


the  risk  of  the  carrier,  as  a  carrier,  but  as  a  mere  depositary, 
gratuitously,  or  for  compensation,  according  to  the  circumstan- 
ces. (//)  So  if  the  freight  be  not  paid,  and  the  carrier  'retains 
the  goods  therefor,  they  are  not  at  his  risk  as  carrier,  but  as 
warehouse-man  or  gratuitous  bailee.  (?) 

If  the  owner  of  goods  gives  new  directions  as  to  their  deliv- 
ery, after  they  are  taken  by  the  carrier,  of  course  these  direc- 
tions may  be  followed  by  him.  And  if  they  are  indefinite,  or 
if  they  require  the  carrier  to  be  governed  by  information  or 
directions  which  he  does  not  receive,  he  may  discharge  himself 
from  the  obligation  of  delivery  by  storing  them  for  the  owner, 
in  the  best  way  he  can.  (j)  So  the  carrier  is  discharged  by  any 
new  agreement  made  between  him-  and  the  owner  or  shipper, 
or  by  the  consent  of  the  owner  or  shipper  to  some  other  disposi- 
tion of  them  ;  which  may  be   express  or  implied,  (k)      And  the 


(/()  Powell  z;.  Myers,  26  Wciitl.  591,  per 
Verf)/aiif:,  Senator.  In  Goohl  v.  Cliapin 
ct  al.,  10  Barl).  612,  the  defendants,  the 
proprietors  of  the  IIu<lson  River  line  of 
towlioats,  received  on  board  one  of  their 
barires,  in  the  city  of  New  York,  goods  1)C- 
lonpinir  to  mercliants  in  Broekjiort,  to  he 
by  tliein  transported  to  Albany, ^and  tiiere 
delivered  to  the  ajiont  of  a  company  for 
transporting;  goods,  &c.,  on  the  canal, 
styled  "  The  Atlantic  Line."  The  goods 
arrived  safely  at  Albany,  on  Monday  the 
14th  August,  and  were  pnt  on  the  float 
belonging  to  the  owners  of  the  barge, 
which  they  kept  in  the  Albany  basin  for 
the  pnrpose  of  receiving  goods  bronght  by 
their  l)arges,  and  thcTi  transferring  them  to 
the  canal  craft,  which  came  along- side  of 
the  float  to  receive  their  loading.  On  the 
L^th  of  August,  the  agent  of  "  The  At- 
lantic Line"  was  notified,  on  behalf  of  the 
proprietors  of  the  Hudson  River  lino,  that 
there  were  goods  on  their  tloat  for  his  line, 
and  he  was  rciiuestcd  to  call  and  take 
them  away.  The  like  notitieation  t\u(\  re- 
quest were  made  to  him  on  the  next  day, 
and  repeated  again  on  the  17th  August, 
when  the  agent  said  he  was  taking  some 
goods  for  another  line,  and  wiicn  he  got 
them  on  he  wotdd  sh»ve  up  to  the  float  and 
take  those  goods  on.  Hut  on  the  same 
aftennjon,  the  float,  with  the  goods  in 
question,  was  consumed  l)y  lire.  The  court 
lifid  that,  under  the  circumstances,  the 
strict  liability  of  the  defendants,  as  com- 

09* 


mon  carriers,  had  ceased  at  the  time  of  the 
fire,  and  that  they  were  then  holding  the 
goods  as  bailees  in  deposit  merely  ;  and 
the  goods  having  been  destroyed  without 
any  fault  on  their  part,  that  they  were  not 
liable. 

(/)  Storr  r.  Crowlev,  McCIel.  &  Y.  129. 

ij)  Boyle  V.  :McL!Uighlin,  4  H.  &  J. 
291.  But  a  carrier  in  whose  ])ossession 
goods  are  left,  becomes  chargeable  as  a  ilc- 
positary.  Smith  r.  Nashua  &  Lowell  R. 
K.  Co.,  7  Fost.  86. 

(/.■)  Thus,  if  A,  for  whom  goods  arc 
transported  by  a  railroad  company,  au- 
thorizes B  to  receive  the  delivery  thereof, 
and  to  do  all  acts  incident  to  the  delivery 
and  transportation  thereof  to  A,  and  B, 
instead  of  receiving  the  goods  at  the  usual 
place  of  delivery,  recpiests  the  agent  of  the 
company  to  permit  the  car  which  contains 
the  goods,  to  be  hauled  to  a  near  depot  of 
another  railroad  company,  and  such  agent 
assents  theix'to,  and  assists  B  in  hauling 
the  car  to  such  depot,  ancf  B  there  re<piests 
and  obtains  leave  of  that  company  to 
use  its  machinery  to  remove  the  goods 
from  the  car;  then  the  comjiany  that 
transported  the  goods  is  not  answerable  for 
the  want  of  care  or  skill  in  the  persons 
employed  in  so  removing  the  g«Ki<is  from 
the  car,  nor  for  tlie  want  of  strength  in  the 
machinery  used  for  the  removal  of  them, 
and  caimot  be  charged  with  any  loss  that 
may  happen  in  the  course  of  such  delivery 
to  A.     Lewis  r.   The  Western  Railroad 

[701] 


675* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


shipper  may  accept  the  goods  at  some  place  short  of  that  to 
which  they  should  have  been  carried,  and  at  which  by  the  orig- 
inal contract  delivery  should  have  been  made.  And  such  ac- 
ceptance, whatever  be  the  motive  for  it,  discharges  the  carrier, 
if  it  be  voluntary,  and  if  it  be  made  before  any  cause  of  action 
has  arisen  against  the  carrier,  for  non-delivery,  or  other  de- 
fault. (/)  After  such  cause  *exists  by  reason  of  the  injury  that 
has  been  inflicted,  nothing  discharges  the  carrier  but  a  release, 
or  the  receipt  of  something  by  way  of  accord  and  satisfac- 
tion, (w) 

If  the  owner  or  shipper,  by  his  illegal  act,  prevents  or  inter- 
feres with  the  delivery  of  the  goods  by  the  carrier,  the  obligation 
of  delivery  is  at  an  end.  But  only  an  actual  illegality  has  this 
effect,  (n)      An  alleged   one,  if  it  be  not  true  in  fact,  does  not 


Corp.  11  Met.  408.  And  Deivejj,  J.,  said  : 
"  The  duty  of  the  defendants  was  to  trans- 
port the  article,  and  deliver  it  at  their 
depot.  But  this  duty  may  be  modified  as 
to  the  manner  of  its  performance.  The 
omission  of  the  defendants  to  remove 
goods  from  the  cars  and  place  tlicm  in  the 
warehouse,  or  upon  the  platform,  would 
not,  in  all  cases,  subject  them  to  an  action 
for  non-delivery,  or  for  negligence  in  the 
delivery.  Suppose  a  bale  of  goods  was 
transported  by  them,  and,  on  its  arrival  at 
the  depot,  the  owner  should  step  into  the 
car,  and  ask  for  a  delivery  there,  and 
thereupon  the  goods  should  be  passed  over 
to  him,  in  the  car.  The  delivery  would 
be  perfect ;  and  if  any  casualty  should 
subsequently  occur,  in  taking  out  the  bale, 
the  loss  would  be  his.  The  place  and 
manner  of  delivery  may  always  be  varied 
with  tlie  assent  of  the  owner  of  the  prop- 
erty; and  if  he  interferes  to  control  or 
direct  in  the  matter,  he  assumes  the  re- 
sponsil)ility."  See  Scotthorn  v.  South 
Startbrdshire  Railway  Co.  18  E.  L.  &  E. 
553. 

(/)  Parsons  v.  Hardy,  14  Wend.  215  : 
Harris  c.  Hand,  4  New  Hamp.  259,  555 ; 
Welch  L\  Hicks,  G  Cow.  504 ;  Lorent  v. 
Kcntring,  1  N.  &  McC.  132 ;  Hunt  r. 
HaskelC  24  Maine,  339.  But  the  goods 
must  be  voluntarily  received,  llossiter  v. 
Chester,  1  Doug. '  [Mich.]  154.  And  in 
Lowe  V.  Moss,  12  111.  477,  it  was  held  that 
the  receipt  by  tlie  owner  of  a  part  of  a  lot 
of  goods  in  traiisilu,  though  it  would  dis- 
.cluvrge  the  carrier,  from  all  further  liability 

[702] 


as  to  such  part  fvould  not  so  discharge 
him  as  to  the  residue. 

(m)  Willoughby  v.  Backhouse,  2  B.  & 
C.  821  ;  Baylis  r.  Usher,  4  M.  &  P.  790; 
Bowman  v.  Teall,  23  AVeud.  306. 

(ji)  Gosling  !•.  Higgins,  1  Camp.  451. 
Tills  was  an  action  for  the  non-delivery  of 
ten  pipes  of  wine,  shipped  at  the  island  of 
Madeira,  on  board  a  vessel  of  which  the 
defendant  was  owner,  to  be  carried  to  Ja- 
maica, and  from  thence  to  England. 
AVlicn  the  vessel  arrived  off  Jamaica,  she 
w^iis  seized,  with  her  cargo,  for  a  suitposcd 
violation  of  the  revenue  laws,  and  tliei'C 
condemned;  but,  upon  an  appeal  to  the 
Privy  Council  in  England,  the  sentence 
of  condemnation  was  reversed.  Upon 
these  facts.  Lord  Ellenhorough  held  that 
the  defendant  was  liable,  and  must  seek 
his  remedy  against  the  officers  of  govern- 
ment. So  in  Spence  i'.  Cliadvvick,  10  Q. 
B.  517,  wiiich  was  assumpsit  by  a  sliipper 
on  a  contract  of  affreightment.  The  dec- 
laration stated  that  the  plaintiff  had  ship- 
pod  on  l)oard  the  defendant's  shi]),  then  in 
the  bay  of  Gibraltar,  and  bound  for  Lon- 
don, calling  at  Cadiz,  certain  goods  to  be 
safely  conveyed  to  London,  and  there  de- 
livered in  good  order,  the  act  of  God,  tlic 
Queen's  enemies,  tire,  and  all  and  every 
other  dangers  and  accidents  of  the  seas, 
rivers,  and  navigation,  of  whatever  nature 
or  kind  soever,  save  risk  of  boats,  &c.,  ex- 
cepted, the  plaintiff  ])aying  frciglit.  The 
declaration  then  averred  a  promise  by  the 
defendant  so  to  convej''  and  deliver  the 
cargo,  saving  the  above  exceptions;  and 


CH.  XII.] 


BAILMENT. 


♦676 


discharge  the  carrier;  but  if,  though  not  true  in  fact,  or  although 
the  cause  of  a  seizure  or  other  interference  with  the  goods  which 
prevents  their  delivery  is  not  substantiated,  yet  if  there  be  a 
justifiable  cause  for  such  seizure,  it  would  seem  reasonable  that 
the  carrier  should  not  be  held  responsible  for  the  consequences. 
It  would  certainly  be  unjust  to  hold  him  so,  where  it  was  the 
fault  of  the  owner  or  shipper  that  such  apparent  cause  for 
seizure  existed. 

*Nor  is  the  carrier  liable  where  the  goods  are  thrown  over- 
board from  necessity,  to  save  life  or  property ;  (o)  if  to  save 
property,  all  the  property  that  is  saved  must  contribute  to  make 
up  the  loss,  under  what  is  termed  in  the  mercantile  law,  a  gen- 
eral average,  (p)    Nor  if  the  goods  perish  from  inherent  defect, (7) 


alleged  as  a  breacli  that  lie  failed  to  do  so. 
Tlie  defendant  pleaded  tliat  the  ship  in 
the  course  of  her  voyage  called  at  Cadiz, 
and  was  tlien  within  the  jurisdiction  of  tlie 
officers  of  customs  there,  and  of  a  certain 
court  of  Spain,  (descrilied  in  tfce  plea); 
that  while  tlie  sliij)  was  there,  the  goods 
were,  according  to  tiie  law  of  Spain, 
lawfully  taiicn  out  of  the  shij)  by  the 
said  otticers,  against  tiie  will  and  with- 
out the  default  of  tlic  defendant,  on  a 
charge  of  susjiicion  of  tlieir  being  con- 
traband according  to  the  law  of  Sjiain, 
and  were  coiitiscated  by  a  decree  of  the 
said  court,  ujion  tlie  ciiargc  aforesaid. 
Upon  demurrer,  the  court  lickl  tliat  tlie 
plea  alleged  no  excuse  witliin  tlie  express 
exceptions  in  the  contract ;  tliat  tlie  de- 
cree of  confiscation  was  in  itself  no  answer ; 
and  that  it  did  not  appear  by  the  plea  to 
have  been  incurred  through  any  fault  of 
the  plaiiitilf. 

(0)  Mouse's  case,  12  Co.  Rep.  6.3 ; 
Bird  V.  Astcock,  2  Bulst.  280,  2  Kol.  Abr. 
5G7  ;  Ilalwcrson  r.  Cole,  1  Spears,  321. 
In  ivcniig  r.  Eggleston,  Alcyii,  93,  it  is 
said  that  Jiollc,  C.  J.,  cited  one  IJarcrofi's 
Ciise,  "  wlsere  a  box  of  jewels  was  delivered 
to  a  ferryman,  who,  knowing  not  what 
was  in  it,  and  being  in  a  tempest,  threw  it 
overboard  into  the  sea  ;  and  resolved  that 
he  should  answer  for  it."  But  Sir  117/- 
liiiiii  Jdiii.t,  in  commenting  upon  this  case, 
says:  "1  cannot  help  suspecting  that 
there  was  ])roof  in  this  case  of  culpable 
ne(/liijenrr,  and  probably  the  casket  was 
both  siiKill  and  liij/it  enough  to  have  been 


kept  longer  on  board  than  other  goods  ; 
for  in  the  case  of  Gravesend  barge,  cited 
on  the  bench  by  Lord  Coke,  it  appears 
that  the  pack  which  was  thrown  overboard 
in  a  tempest,  and  for  which  tlie  bargeman 
was  held  wA  auswtrable,  was  of  great  value 
and  fjreat  icei;;lti ;  although  this  last  cir- 
cumstance be  omitted  by  Rol/c,  who  says 
only  that  the  mitster  of  "the  vessel  had  no 
ill  for  mat  ion  of  its  contents."  See  Jones  on 
Bailm.  108. 

(/»)  But  the  owners  of  goods  shipped 
on  deck,  and  thrown  overboard  in  a  storm, 
are  not  entitled  to  g/Liiieral  average;  nor  is 
the  owner  of  the  vessel  liable  for  them  as 
carrier,  in  such  case.  Smith  r.  Wright,  1 
Caines,  43  ;  Lenox  r.  United  Ins.  Co.,  3 
Johns.  Cas.  178;  The  Kowena,  Ware, 
322.  But  in  Gillctt  v.  Ellis,  1 1  111.  579, 
where  goods,  stowed  on  the  main  duk  of 
a  propeller,  were  necessarily  cast  overboard 
in  a  tempest  by  the  order  of  the  master,  to 
jneserve  the  vessel  and  crew,  it  was  held 
that  the  owner  of  the  goods  was  entitled 
to  tlie  benefit  of  a  geiiend  average.  And 
per  Treat,  C.  J. :  "It  is  in<i^tcd  that  the 
l)laintifV  cannot  claim  contribution,  be- 
cause his  goods  were  stowed  on  tlie  deck 
of  the  vessel.  The  general  rule  nndoulH- 
cdly  is,  that  tlie  owner  of  the  goods  which 
are  jilaccd  on  the  deck  of  a  shij),  and  are 
swept  overbuard  by  the  action  of  the  wind 
or  waves,  or  cast  into  the  sea  by  com- 
nnuul  of  the  master,  in  order  to  protect 
tlie  ve.s.sel  and  crew,  is  not  entitled  to  the 
benefit  of  a  general  average.  The  cargo 
on  deck,  from  its  situation,  increases  the 


(7)  Farrar  v.  Adams,  Bui.  N.  V.  09;  Clark  v.  Barnwell,  12  How.  272. 

[703] 


677* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


nor  if  the  owner  or  shipper  has  been  *negligent  or  fraudulent  in 
not  disclosing  the  peculiar  nature  of  goods  requiring  peculiar 
care,  by  the  want  of  which  care  they  have  perished  or  suffered 
injury,  (r)  But  the  carrier  is  bound  to  take  all  such  reasonable 
care  of  goods  as  he  knows  or  should  know  to  be  necessary  for 
them. 

If  the  carrier,  on  the  ground  of  his  liability  for  damages  to 
the  goods  he  undertook  to  transport,  pays  for  such  damages, 
it  is  equivalent  to  a  delivery  of  them  in  safety,  and  reestablishes 
his  claim  for  freight,  (s) 


SECTION     X. 


WHERE    A    THIRD    PARTY    CLAIMS    THE    GOODS. 

One  question  in  regard  to  the  carrier's  obligation  to  deliver 
goods  to  the  shipper  or  consignor,  has  been  much  agitated,  and 
perhaps  is  not  quite  settled.  It  arises  in  the  case  of  another 
party  claiming  the  goods  as  owner,  and  taking  them  in  that 
character  from  the  carrier.  Will  such  taking  excuse  the  carrier 
for  non-delivery  ?  If  the  goods  are  demanded  from  him  by  a 
third  party  on  this  ground,  can  he  deliver  the  goods  and  justify 


difficulty  of  navigating  the  ship,  and  is 
more  cxjiosed  to  peril  than  that  which  is 
under  cover;  and,  if  swept  away  or 'cast 
overboard,  tlie  owner  must  bear  the  loss, 
without  contribution  from  the  owners  of 
the  vessel  and  the  cargo  under  hatches. 
But  this  case  does  not  fall  witliin  the  op- 
eration of  this  rule.  Projicllcrs  arc  a 
class  of  vessels  but  recently  introduced 
in  the  navigation  of  the  lakes,  to  which, 
from  the  peculiarity  of  their  construction, 
and  the  general  usage  respecting  them, 
this  general  rule  is  not  applicable.  They 
are  double  deckers,  with  two  holds.  By 
the  general  custom  prevailing  in  reference 
to  them,  goods  stowed  on  the  main  deck, 
or  upper  hold,  arc  regarded  as  under 
hatches,  and  as  safe  as  those  stowed  in  the 
lower  hold,  or  where  the  cargo  in  ordinary 
vessels  is  only  considered  as  under  cover. 
The  master  is  allowed,  by  this  general 
custom,  to  stow  the  cargo  cither  in  the 
hold,  or  on  the  main  deck,  at  his  conven- 

[704] 


ience.  No  distinction  is  made  in  the 
price  of  transportation  bj^  the  carrier,  or 
in  the  rates  of  insurance  by  tlie  under- 
writer. The  cargo  below  and  between 
decks  is  put  on  the  same  footing.  This 
universal  usage,  resulting  from  the  char- 
acter of  the  vessel,  must  govern  the  rights 
and  liabilities  of  the  owners  of  tlie  vessel 
and  cargo.  The  owner  of  goods,  which 
ai"e  stowed  on  the  main  deck  of  a  pro- 
peller, and  necessarily  cast  overboard  by 
the  direction  of  the  master,  to  preserve  the 
vessel  and  crew,  is,  therefore,  entitled  to 
the  benefit  of  a  general  average,  as  much 
as  the  owner  of  goods  that  are  stowed  in 
the  hold  would  be,  under  like  circum- 
stances." 

(r)  Edwards  v.  Sherratt,  1  East,  604 ; 
Titchburne  r.  White,  1  Str.  145;  Batson 
V.  Donovan,  4  B.  &  Aid.  21. 

(s)  Hammond  i\  McClures,  1  Bav, 
101. 


en.  XII.] 


BAILMENT. 


»678 


his  conduct?  It  is  quite  certain  that  the  carrier  cannot  himself 
raise  the  question  of  title  in  a  third  person,  and  on  that  ground 
refuse  delivery  to  the  party  originally  holding  them,  (t)  And  it 
is  undoubtedly  the  general  rule,  that  the  carrier  cannot  deny 
the  title  of  the  party  from  whom  he  has  received  the  goods  for 
transportation.  In  *general,  no  agent  can  defend  against  the 
action  of  his  principal,  by  setting  up  the  jus  tertii  in  his  own 
favor.  (?/)  On  the  other  hand,  if  the  carrier  delivers  them  to  a 
third  party,  and  it  can  be  shown  in  an  action  against  him  that 
•this  third  party  was  the  actual  and  lawful  owner,  and  that  the 
plaintiff,  who  delivered  the  goods  to  the  carrier,  had  no  right  to 
them  whatever,  this  certainly  is  a  suflicient  defence,  [v)     It  is 


(t)  Anon.,  cited  in  Laclouch  v.  Towlc, 
3  Esp.  114.  Tills  was  a  case  tried  before 
Mr.  Justice  Gould,  and  was  to  the  follow- 
ing effect.  A  can-ier  had  a  parcel  of 
goods  delivered  to  him,  to  l)e  carried  from 
Maidstone  to  London.  While  the  goods 
lay  at  his  warehouse,  a  person  came  there 
who  said  the  goods  were  his,  and  claimed 
them  from  the  carrier  ;  the  carrier  said  he 
could  not  deliver  them  ;  hut  that  if  he  was 
indemnified  he  would  keep  them,  and  not 
deliver  them  according  to  order.  An  in- 
demnity was  given  ;  and  the  goods  not 
being  delivered  according  to  order,  the 
party  by  whom  they  were  delivered  to  tlic 
carrier  brouglit  an  action  against  the  car- 
rier. The  learned  judge  would  not  per- 
mit him  to  set  up  any  (|uestion  of  property- 
out  of  the  plaintiff;  and  held  that  he  hav- 
ing received  the  goods  from  him,  was  pre- 
cluded from  questioning  his  title,  or  show- 
ing a  jtroperty  in  any  other  person.  And 
Lord  Koiijon,  before  whom  the  case  was 
cited,  admitted  it  to  be  law.  See  also, 
ante,  p.  G2I,  n.  (z). 

((()  Nickolson  v.  Knowles,  5  Mad.  47; 
Mylcr  r.Fitzpatrick,  G  Mad.  &  Geld.  .360  ; 
Dixson  V.  llainoiul,  2.  U.  &  Aid.  .•JIO; 
Roberts  r.  ( )gill)y,  9  Price,  i;09  ;  Hard- 
man  I'.  Willcock*  9  liing.  382,  n.  («)  ; 
Bates  V.  Stanton,  1  Ducr,  79. 

(v)  This  was  settled,  after  much  con- 
sideration, in  King  v.  Kichards,  (>  Whart. 
418.  The  defendants  in  that  case  were 
common  carriers  of  goods  between  New 
York  and  riiiladelpiiia,  and  had  signed  a 
I'cceipt  for  certain  gixxls  as  received  of  A, 
which  tiiey  jiromised  to  deliver  to  his 
order.  In  trover  iiy  the  indorsees  of  this 
paper,  who    iiad   made   advances  on  the 


goods,  it  was  held  that  the  defendants 
might  prove  that  A  had  no  title  to  the 
goods  ;  that  they  had  been  fraudulently 
obtained  by  him  from  the  true  owner ; 
and  that  upon  demand  made,  they  had 
delivered  them  up  to  the  latter.  Kennedy, 
J.,  said  :  "  It  is  said  that  it  would  be  a 
breach  of  trust  or  an  act  of  treaclicry,  on 
the  part  of  the  bailee,  to  deliver  thp  goods, 
even  on  demand,  to  the  true  owner,  not- 
withstanding he  has  received  them  from  a 
wrongdoer,  because  he  ])romised  to  restore 
the  goods  to  such  wrongdoer.  If  the 
bailee  in  such  case  receive  the  goods  from 
the  bailor  innocently,  under  the  imprcssioa 
made  by  the  bailor  that  he  is  the  owner 
thereof,  or  has  the  right  to  dispose  of  them 
in  the  manner  he  is  doing,  and  therefore 
promises  to  return  the  goods  to  the  bailor, 
it  is  very  obvious  that  such  a  promise 
ought  not  to  be  regarded  as  binding,  be- 
cause obtained  through  a  false  iinjiression, 
made  wilfully  by  the  bailor ;  and  truth, 
which  lies  at  the  foundation  of  justice,  as 
well  as  all  moral  excellence,  would  seem 
to  require,  in  every  such  case,  that  the 
goods  should  be  delivered  up  to  the  true 
owner,  especially  if  he  deman<l  tlie  same, 
instead  of  the  wrongful  bailor.  IJut  if  the 
bailee  knew  at  the  lime  he  received  the 
goods,  and  made  the  promise  to  redeliver 
them  to  the  bailor,  with  a  view  to  favor 
the  bailor,  that  the  latter  iiad  come  wrong- 
fully by  them,  either  by  having  taken  them 
tortiously  or  feloniously  from  the  owner, 
then  the  bailee  thereby  became  a  partici- 
pant in  the  fraud  or  the  felony,  and  it 
would  be  alihorrent  to  every  jirinciplc  of 
justice  that  he  should  be  protected  under 
such  circumstances  aijainst  the  demand  or 

^[705] 


679* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


held,  in  general,  that  if  he  does  not  yield  to  an  adverse  claim 
by  a  third  party,  he  is  liable  to  an  action,  in  case  the  title  of 
this  party  be  good,  {w}  The  carrier  may  have  his  *interpleader 
in  equity  to  ascertain  who  has  the  right ;  but  it  is  not  easy  to 
see  what  adequate  means  of  self-protection  he  has  at  common 
law.  And  yet  he  should  be  permitted,  in  some  way,  to  demand 
security  of  the  party  whose  title  seems  to  him  the  better,  and  to 
whom  he  is  therefore  willing  to  give  the  goods.  And  whenever 
security  is  refused,  there  should  be  no  recovery  against  him, 
unless  the  better  title  of  the  person  claiming  the  goods  wa^ 
obvious  and  certain,  or  there  were  other  circumstances  indi- 
cating that  the  carrier  had  not  acted  with  entire  good  faith  or 
proper  discretion.  But,  in  the  present  state  of  the  authorities, 
it  seems  that  if  the  carrier  be  called  upon  by  such  antagonistic 
claimants,  he  must  decide  between  them  at  his  own  peril. 


claim  of  the  owner.  This  promise,  how- 
ever, of  the  bailee,  is  said  to  be  binding 
on  him  only,  and  is  not  such  as  his  per- 
sonal representatives  are  bound  to  regard  : 
and  the.  reason  assigned  for  this  is  because 
the  goods  have  come  to  their  possession 
by  operation  of  law.  This  doctrine,  if  it 
were  to  be  allowed,  would  certainly  be 
singularly  anomalous,  and  unlike,  in  its 
effect,  to  any  other  promise  recognized  by 
the  law  as  binding."  See  also,  Bates  v. 
Stanton,  1  Ducr,  79. 

(iv)  Wilson  V.  Anderton,  1  B.  &  Ad. 
450.  In  this  case  the  captain  of  a  ship, 
who  had  taken  goods  on  freight,  and  who 
claimed  a  lien  upon  them,  but  whose  claim 
Avas  unfounded,  delivered  them  to  the  de- 
fendant as  his  bailee.  The  plaintiff,  who 
was  tiie  owner  of  the  goods,  demanded 
them  of  the  defendant,  but  he  refused  to 
deliver  them  without  the  directions  of  the 
bailor.  The  court  held  that  the  bailor  not 
having  any  lien  upon  the  goods,  the  re- 
fusal of  the  bailee  was  sufficient  evidence 
of  a  conversion.  Lord  Tenterden,  C.  J., 
said  :  "  A  bailee  can  never  be  in  a  better 
situation  than  the  bailor.  If  the  bailor 
has  no  title,  the  bailee  can  have  none,  for 
the  bailor  can  give  no  better  title  than  he 
has.  The  right  to  the  property  may, 
therefore,  be  tried  in  an  action  against  the 
bailee,  and  a  refusal  like  that  stated  in 
this  case  has  always  been  considered  evi- 
dence of  a  conversion.  The  situation  of 
a  bailee  is  not  one  without  I'emedy.  He 
is  not  bound  to  ascertain  who  has   the 

[706] 


right.  He  may  file  a  bill  of  interpleader 
in  a  court  of  equity.  But  a  bailee  who 
foi'bears  to  adopt  that  mode  of  proceeding, 
and  makes  himself  a  party  by  retaining 
the  goods  for  the  bailor  must  stand  or  fall 
by  his  title."  Littledale,  J.  :  "  The  ques- 
tion is,  whether,  under  the  circumstances 
stated  in  this  case,  the  bailee  can  set  up 
any  title  against  the  real  owner  ?  What 
is  the  situation  of  a  bailee  1  He  has  no 
other  title  except  that  which  the  bailor 
had.  As  to  the  Nisi  Prius  case  before 
Gould,  J.,  [see  ante,  n.  {t],\  it  is  not  appli- 
cable to  the  present  point.  There  the 
carrier,  on  the  goods  being  demanded  by 
a  third  party,  voluntarily  identified  him- 
self with  that  party,  by  proposing  to  re- 
tain tlicm  on  an  indemnity,  and  oifcring 
to  set  up  the  title  of  that  party  on  an  ac- 
tion by  the  bailor.  Now  a  lessee  cannot 
dispute  the  title  of  his  lessor  at  the  time 
of  the  lease,  but  he  may  show  that  the 
lessor's  title  has  been  put  an  end  to  ;  and 
therefore  in  an  action  of  covenant  by  the 
lessoi",  a  plea  of  eviction  by  title  paramount, 
or  that  which  is  equivalent  to  it,  is  a  good 
plea,  and  a  threat  to  distrain  or  bring  an 
ejectment,  by  a  person  having  good  title, 
would  be  equivalent  to  an  actual  eviction. 
So  here  if  the  bailor  brought  an  action 
against  the  defendant  as  bailee,  the  latter 
might,  on  the  same  principle,  show  that 
the  plaintiff  recovered  the  value  of  the 
goods,  or  that,  on  being  threatened  with 
an  action  bj^  a  person  who  had  good  title  to 
the  goods,  he  had  delivered  them  to  him." 


CH.  XII.]  BAILMENT.  *680 

If  the  goods  are  stopped  in  transitu,  this  would  involve  ques- 
tions which  could  be  answered  only  by  the  law  of  "stoppage 
in  iransitu,^^  which  is  elsewhere  considered. 


SECTION    XI. 

COMPENSATION. 

This  is  sometimes  fixed  by  law ;  as  for  incorporated  com- 
panies, ferries,  &c.  Where  it  is  not  so  fixed,  the  carrier  may 
*determine  it  himself.  But  having  adopted  and  made  known  a 
usual  rate,  he  is  so  far  bound  by  it,  that  on  tender  of  this  rate 
he  must  receive  the  goods,  and  can  recover  no  more  if  they  are 
not  prepaid  and  he  carries  them  ;  and  whether  it  be  fixed  by 
law,  or  by  his  own  established  usage,  it  must  be  applied  equally 
and  indifferently;  all  persons  being  charged  the  same  price  for 
carriage  of  the  same  quantity  the  same  distance,  (x)  Where, 
however,  it  is  not  fixed  by  law,  the  carrier  may  change  it  at  his 
discretion,  and  all  parties  are  bound  who  have,  or  might  have 
but  for  their  own  fault,  seasonable  knowledge  of  such  change.  If 
the  hire  to  which  he  is  entitled  be  not  paid,  he  is  not  bound  to 
deliver  the  goods,  and  if  he  now  retains  them  in  his  warehouse 
or  place  of  business,  he  is  liable,  in  case  of  loss  or  injury,  only 
for  negligence.  His  liability  is  no  longer  that  of  a  common 
carrier,  but  that  of  a  depositary  for  hire  or  gratuitously,  as  the 
case  may  be.  (//)  For  he  now  holds  the  goods  by  virtue  of  the 
right  we  shall  now  ])roceed  to  consider. 

(x)  Sec  ante,  p.  G50,  n.  (I).     It  sccins  the  floods  arc  delivered.     Barnes  r.  Mar- 
that  iilthou;^li  a  carrier  need  not  rereive  sliall,  4  E.  L.  &  E.  45. 
goods  until  tlie  price  of  camaire  is  paid,         (//)  Young  v.  Smitli,  3  Dana,  91.     See 
yet  if  he  does  so   receive   them   he   can  miic,  ji.  674,  n.  (/). 
maintain  no  action  for  their  caiTiagc  until 

[707] 


I 


•  • 


681* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


SECTION    XII. 

OF   THE    LIEN    AND    AGENCY    OF    THE    CARRIER;    AND    HIS    RESPONSI- 
BILITY  BEYOND    HIS    OWN   ROUTE. 

Whether  a  private  carrier  has  a  lien  on  the  goods  for  his 
freight,  is  not,  as  we  have  already  said,  determined  by  the 
authorities.  Generally,  perhaps,  it  has  been  considered  that  one 
of  the  distinctions  between  the  private  carrier  and  the  common 
carrier  is,  that  the  first  has  no  such  lien,  while  the  latter  has, 
and  has  had  for  centuries,  (z)  No  part  of  the  law  of  baihnents 
is  more  firmly  established  than  that  the  common  carrier  has  this 
lien.  He  may  not  only  refuse  to  carry  goods  unless  the  freight 
is  paid  to  him,  but  if  he  carry  them,  and  the  freight  is  withheld, 
he  may  retain  the  goods,  and  obtain  his  freight  from  them  in 
any  of  the  ways  in  which  *a  party  enforces  a  lien  on  personal 
property,  (a)  And  while  he  holds  them  on  this  ground,  they 
are  not  at  his  risk  as  a  common  carrier,  for  he  is  responsible 
only  as  any  other  party  who  holds  property  as  security  for 
debt. 

It  has  been  questioned  whether  a  common  carrier,  who  car- 
ries goods  of  a  party,  but  without  his  order  or  knowledge,  can 
maintain  a  lien  for  the  freight.  Generally  the  owner  would 
have  the  right  to  refuse  such  service,  and  to  require  that  the 


(2)  Skinner  v.  Upsliaw,  2  Ld.  Raym. 
752 ;  Hunt  v.  Haskell,  24  Maine,  339  ; 
Hayward  r.  Middleton,  1  So.  Car.  Const. 
Rep.  18G;  Ellis  v.  James,  5  Ohio,  88; 
Bovmian  v.  Hilton,  11  Ohio,  303;  Fuller 
v.  Bradk'V,  25  Penn.  St.  Reps.  120. 

(«)  See  Hunt  v.  Haskell,  24  Maine,  339  ; 
Fox  z'.  MeGre,<j;or,  11  Barb.  41.  — A  re- 
linquishment of  possession  by  a  can-ier,  or 
other  person  who  has  a  lien  on  property, 
is  an  abandonment  of  the  lien.  By  a 
transfer  of  the  possession  the  holder  is 
deemed  to  yield  up  the  security  he  has  by 
means  of  the  custody  of  the  ])roperty, 
and  to  trust  only  to  the  responsibility  of 
the  owner,  or  other  persou  liable  for  the 

[708] 


charge.  Bailey  v.  Quint,  22  Verm.  464; 
Forth  V.  Simpson,  13  Q.  B.  689  ;  Bigelow 
v.  Heaton,  6  Hill,  43,  4  Denio,  496.  But, 
semble,  per  Beardslei/,  J.,  that  the  lien  may 
be  retained  after  delivery  by  the  agreement 
of  tlie  parties.  Id.  And  it  is  so  held  in 
Sawyer  v.  Fisher,  32  Maine,  28.  So  if  a 
carrier  be  induced  to  deliver  goods  to  the 
consignee,  by  a  false  and  fraudulent  prom- 
ise of  the  latter  that  he  will  pay  the  freight 
as  soon  as  they  arc  received,  the  delivery 
will  not  amount  to  a  waiver  of  the  car- 
rier's lien,  but  he  may  disaffirm  the  deliv- 
ery, and  sue  the  consignee  in  rejjlcvin. 
Bigelow  V.  Heaton,  supra. 


CH.  Xri.]  BAILMENT.  *682 

goods  should  be  replaced,  or  he  might  have  his  action  for  inter- 
meddling with  his  property.  But  if  the  facts  were  such  as  to 
leave  to  the  owner  only  the  option  between  receiving  his  goods 
or  rejecting  them,  must  he  either  refuse  the  goods,  or  by  accept- 
ing give  the  carrier  all  the  rights  which  he  would  have  had  if  he 
had  himself  placed  them  in  the  hands  of  the  carrier  ?  If  a  thief 
in  Albany  steals  one  hundred  barrels  of  flour  from  an  owner 
who  intends  to  send  it  to  Boston,  and  the  thief,  for  his  own 
purposes,  sends  it  by  railroad  to  Boston,  and  there  the  owner's 
agent  discovers  the  flour,  and  recognizes  it  by  marks  and  num- 
bers, can  the  owner  or  the  owner's  agent  get  possession  of  the 
flour,  only  by  paying  the  freight,  and  so  discharging  the  lien  of 
the  railroad  ?  If  a  service  has  been  distinctly  rendered  to  the 
owner,  and  he  accepts  that  service  and  holds  the  benefit  of  it, 
on  general  principles  he  must  pay  for  it.  Whether  that  rule 
would  apply  here  would  depend  upon  the  peculiar  circumstan- 
ces of  the  case.  But  if  it  would,  it  does  not  follow  that  the 
carrier  is  entitled  to  his  lien.  He  may  have  a  rightful  claim  for 
freight,  which  he  may  otherwise  enforce,  but  still  have  no  lien 
for  it  on  the  goods  transported.  If  the  lien  be  connected  with 
his  peculiar  obligation  to  carry  for  all  who  *offer,  (6)  and  his 
peculiar  responsibility  as  an  insurer  against  ^very  thing  but  the 
act  of  God  or  the  public  enemy,  these  three,  the  lien,  the  obliga- 
tion, and  the  responsibility,  existing  only  together,  and  in  de- 
pendence on  each  other,  then  it  would  follow  that  he  has  no 
such  lien,  unless  he  was  under  a  legal  obligation  to  carry  the 
goods  for  the  thief.  Such  an  obligation,  in  the  present  exten- 
sion of  onr  internal  interchange  of  property,  and  with  the  exist- 
ing facilities  of  locomotion,  would  make  the  common  carrier 
the  most  efficient  assistant  of  the  thief  We  cannot  doubt  that 
he  may  always  inquire  into  the  title  of  one  who  offers  him 
goods  ;  that  he  must  so  inquire  if  there  be  any  facts  which 
would  excite  suspicion  in  a  man  of  ordinary  intelligence  and 
honesty ;  and  that  if  the  person  offering  the  goods  is  neither  the 


(/^)  "  The  doctrine  of  lien  originated  in  titled  to  retain  tlicm   for  his  indemnity; 

certain  principles  of  the  common  law,  hy  thus  carriLTS  and  imil^ccpers  had,  liy  tlie 

whicli  a  ])arty,  wlio  was  compvUnl  to  re-  common  law,  a  lion  on  the  L'(iod<  intrusted' 

ccive  the  goods  of  anotlicr,  was  also  en-  to  their  charge."  Sinitli's  Mm'.  Law,  553. 

VOL.  I.  GO  [  7UD  ] 


682- 


THE   LAW   OF   CONTRACTS. 


[book  III. 


owner  nor  his  authorized  agent,  the  carrier  is  under  no  obliga- 
tion to  receive  and  carry  them.  And  then  again  it  follows,  that 
if  he  carries  sroods  for  one  who  is  neither  the  owner  nor  his 
agent,  he  carries  what  he  was  under  no  obligation  to  carry, 
and  therefore  cannot  maintain  his  carrier's  lien  for  the  freight. 
This  conclusion  seems  to  us,  on  the  whole,  most  conformable  to 
the  prevailing  principles  of  law,  and  to  the  actual  condition  of 
the  carrier's  business  in  this  country,  and  to  the  present  weight 
of  authority,  (c) 


(c)  Tliis  question  lias  been  considerably 
discussed  witliin  the  last  few  years.  We 
have  already  seen  that  an  innkeeper  in 
such  a  case  has  a  lien.  See  ante,  p.  632, 
n.  [)•).  See  also  Fitch  v.  Newberry,  1 
Doug.  [Mich.]  1,  where  the  court  say: 
"  There  is  an  obvious  ground  of  distinc- 
tion between  the  cases  of  carrijuig  goods 
by  a  common  carrier,  and  the  furnishing 
keeping  for  a  horse  by  an  innkeeper.  In 
tlie  latter  case,  it  is  equally  for  the  benefit 
of  the  owner  to  have  his  horse  fed  by  the 
innkeeper,  in  whose  custody  he  is  placed, 
whether  left  by  a  thief,  or  by  himself  or 
agent ;  in  either  case  food  is  necessary  for 
the  preservation  of  his  horse,  and  the  inn- 
keeper confers  a  benefit  upon  the  owner 
by  feeding  him.  But  can  \t  be  said  that  a 
carrier  confers  a  benefit  on  the  owner  of 
goods  by  carrying  them  to  a  place  where 
perliaps  he  never  designed,  and  does  not 
wish  them  to  go  ?  Or,  as  in  this  case,  is 
the  owner  of  goods  benefited  by  having 
them  taken  and  transported  by  one  trans- 
portation line,  at  their  own  price,  when 
he  had  already  hired  and  paid  another 
to  carry  them  at  a  less  price  ? "  The 
first  case  in  which  the  same  question  arose, 
in  regard  to  a  carrier,  is  that  of  the  Exeter 
carrier,  cited  by  Lord  Holt,  in  Yorke  v. 
Grenaugli,  2  Lord  llaym.  8G6.  Tiiere  it 
appeared  tliat  one  A  stole  goods,  and  de- 
livereil  tlicni  to  the  Exeter  carrier  to  be 
carried  to  Exeter.  The  right  owner  find- 
ing the  goods  in  the  possession  of  the  car- 
rier, demanded  them  of  him  ;  upon  which 
the  carrier  refused  to  deliver,  without 
being  paid  for  the  carriage.  The  owner 
brougiit  trover,  and  it  was  held  that  the 
carrier  might  Justify  detaining  the  goods 
against  the  right  owner  for  the  carriage, 
for  when  A  brought  them  to  him,  he  was 
obliged  to  receive  them  and  carry  them ; 
and  tliercforc,  since  the  law  compelled 
him  to  carry  them,  it  \Vould  give  him  a 

[710] 


remedy  for  the  premium  due  for  the 
carriage.  The  decision  evidently  met 
with  the  approval  of  Lord  Holt.  On 
the  authority  of  this  case,  the  opin- 
ion seems  generally  to  have  prevailed 
in  the  profession  and  among  text-writers, 
that  innkeepers  and  common  carriers 
stand  upon  the  same  ground  in  this  re- 
spect. See  King  v.  Richards,  6  Whart. 
423.  But-  several  late  cases  seem  to  have 
established  the  contrary  doctrine,  in 
this  country  at  least,  in  accordance  with 
what  we  have  stated  in  the  text.  Tiie  first 
case,  since  that  of  the  Exeter  carrier,  in 
which  this  question  has  been  dix-ectly  con- 
sidered, is  Eitch  V.  Newberry,  1  Doug. 
[Mich.]  1,  already  cited.  The  plaintifis  in 
that  case,  by  their  agents,  siiipped  goods 
at  Port  Kent,  on  Lake  Champlain,  con- 
signed to  themselves  at  Marshall,  Michi- 
gan, care  of  H.  C.  &  Co.,  Detroit,  by  the 
New  York  and  Michigan  Line,  who  were 
common  carriers,  and  with  whom  they 
had  previously  contracted  for  the  trans- 
portation of  the  goods  to  Detroit,  and  ])aid 
the  freight  in  advance.  During  their  tran- 
sit, and  before  they  reached  Buffalo,  the 
goods  came  into  the  possession  of  carriers 
doing  business  under  the  nanic  of  the 
Merchants'  Line,  without  the  knowledge 
or  assent  of  the  plaintiffs,  and  were  by 
them  transported  to  Detroit,  consigned  by 
H.  r.  &  C.  of  Buffalo  to  the  care  of  the 
defendants,  and  delivered  to  tlie  defend-, 
ants,  who  were  personally  ignorant  of  the 
manner  in  which  they  came  into  the  pos- 
session of  tiie  Merchants'  Line,  and  of  the 
contract  of  the  plaintiff's  with  the  New 
York  and  Michigan  line,  although  they, 
and  also  H.  P.  &  Co.,  were  agents  for  and 
part  owners  in  the  Merchants'  Line.  The 
defendants,  being  warehouse-men  and  for- 
warders, received  the  goods  and  advanced 
the  freight  upon  them  from  Troy,  N.  Y., 
to  Detroit.     On  demand  of  the  goods  by 


CH.  XIL] 


BAILMENT. 


683-*684 


It  is  settled  that  when  the  carrier  cannot  find  the  consignee, 
or  learns  that  he  is  a  swindler,  and  would  cheat  the  *consignor, 


the  plaintiffs,  the  defendants  refused  to  de- 
liver them,  until  the  froi^^ht  advanced  by 
them,  and  their  charges  for  receiving  and 
storing  the  goods,  were  paid,  claiming  a 
lien  on  the  goods  for  sucii  freight  and 
charges.  The  plaintitls  thercu|)on  broiiglit 
replevin.  And  the  court  after  much  con- 
sideration, held  that  the  plaintitts  were  en- 
titled to  the  possession  of  the  goods  with- 
out payment  to  the  defendant  of  sucii 
freight  and  charges,  and  that  the  defend- 
ants had  no  lien  for  the  same.  This  de- 
cision is  supported  by  the  case  of  Van 
Buskirk  v.  Purrinton,'2  Hall,  .561.  There 
property  was  sold  on  a  condition,  which 
the  l)uyer  failed  to  comi)ly  with,  and 
shipped  tiie  goods  on  boanl  the  defend- 
ant's vessel.  On  the  defendant's  refusal 
to  deliver  the  goods  to  the  owner,  he 
brought  trover,  and  was  allowed  to  recover 
the  value,  although  the  defendant  insisted 
on  his  riirht  of  lien  for  the  freight.  See 
also,  Collman  v.  Collins,  2  Hall,  569. 
The  same  point  arose  directly  in  the  late 
case  of  Koliinson  v.  Baker,  5  Cush.  1.37, 
in  which  F/t-lc/tir,  J.,  after  reviewing  and 
commenting  upon  the  authorities  which 
we  have  cited,  says :  "  Thus  the  case 
stands  upon  direct  and  express  authorities. 
How  does  it  stand  ujjon  general  princi- 
ples ?  In  the  case  of  Saltus  r.  Everett, 
20  Wend.  267,  275,  it  is  said  :  '  The  uni- 
versal and  fundamental  jtrinciple  of  our 
law  of  personal  projjcrty  is,  that  no  man 
can  be  divested  of  his  [iroperty  without 
his  consent,  and  consequently  that  even 
the  honest  jnirchaser  under  a  defective 
title  cannot  hold  against  tlie  true  ]iro)irie- 
tor.'  Tiierc  is  no  case  to  be  found,  or 
any  reason  or  analogy  anywhere  suggested, 
in  the  t)Ooks,  which  would  go  to  showtiiat 
the  real  owner  was  concluded,  by  a  bill  of 
larling  not  given  by  himself,  but  by  some 
third  person,  erroneously  or  fraudulently. 
If  tiie  owner  loses  his  property,  or  i<  robbed 
of  it,  or  it  is  sold  or  jdedged  without  his 
consent,  by  one  who  has  only  a  temporary 
riglit  to  its  use,  by  hiring  or  otherwise,  or 
a  (pialitied  possession  of  it  for  a  specific 
purpose,  as  for  transportation,  or  for  work 
to  be  done  ui)on  it,  the  owner  can  follow 
ami  reclaim  it  in  the  possession  of  any  per- 
son, however  iimocent.  L'pon  this  settlcil 
anil  universal  ])rincii)le,  tiiat  tio  man's 
property  can  be  taken  from  him  without 
his  consent,  express  or  imjilied,  the  books 


are  full  of  cases,  many  of  them  hard  and 
distressing  cases,  where  honest  and  inno- 
cent persons  have  purchased  goods  of 
others,  apparently  the  owners,  and  often 
with  strong  evidence  of  ownership,  but 
who  yet  were  not  the  owners,  and  the  jiur- 
ciiasers  have  been  obliged  to  surrender  the 
goods  to  the  true  owners,  though  wholly 
witliout  remedy  for  the  money  paid. 
There  are  other  hard  and  distressing  cases 
of  advances  made  honestly  and  fairly  by 
auctioneers  and  commission  merchants, 
upon  a  pledge  of  goods  by  persons  appar- 
ently having  the  right  to  pledge,  but  who 
in  fact  had  not  any  such  right,  and  the 
pledgees  have  been  subjected  to  the  loss 
of  them  by  the  claim  of  the  rightfid  owner. 
These  are  hazards  to  which  persons  in 
business  are  continually  exposed  by  the 
operation  of  this  nniversal  principle,  that 
a  man's  property  cannot  be  taken  from 
him  without  his  consent.  Why  should  the 
carrier  be  exempt  from  the  operation  of 
this  universal  principle  ?  Why  should  not 
the  principle  of  caveat  emptor  ap])ly  to 
hint  ?  The  reason,  and  the  only  reason 
given,  is,  that  he  is  obliged  to  receive 
goods  to  carry,  and  should  therefore  have 
a  rigltf  to  detain  the  goods  for  his  i)ay. 
But  he  is  not  bound  to  receive  goods  from 
a  wrongdoer.  He  is  bound  only  to  receive 
goods  from  one  who  may  rightfully  deliver 
them  to  him,  and  he  can  look  to  the  title, 
as  well  as  persons  in  other  pursuits  and 
situations  in  life,  ^;or  is  a  carrier  bound 
to  receive  goods,  unless  the  freight  or  pay 
for  the  carri;ige  is  first  paid  to  him  ;  and 
he  may  in  all  cases  secure  tiie  ]iayment  of 
the  carriage  in  advance.  In  the  case  of 
King  V.  Richards,  6  Whart.  418,  it  was 
decided  that  a  can-ier  may  defend  iiimself 
from  a  claim  for  goods  by  the  person  who 
(lelivered  tliem  to  him,  on  the  ground  that 
the  b.'iilor  was  not  the  true  owner,'  and 
therefore  not  entitled  to  the  goods.  The 
common  carrier  is  responsible  for  the 
wrong  delivery  of  goods,  though  inno- 
cently done,  u|)0u  a  forged  order.  Why 
siioulil  not  his  oliligation  to  receive  goods 
exempt  him  from  the  necessity  of  deter- 
mining the  right  of  the  person  to  whom 
he  delivers  tlie  goods,  as  well  as  from 
the  necessity  of  determining  the  right  of 
the  pei-sons  froni  whom  he  receives  the 
goods  ?  " 

•         [-11] 


684- 


THE   LAW   OF   CONTRACTS. 


[book  III. 


he  is  bound  to  protect  the  owner  and  consignor,  and  for  that 
purpose  to  hold  the  goods,  or  store  them  in  some  proper  way 
for  his  use.  (d) 

The  carrier  may  also  be  a  factor  to  sell  for  the  owner ;  and 
this  by  express  instructions,  or  by  usage  of  trade,  (e)  When 
this  is  the  case,  after  the  carrier  has  transported  the  goods,  and 
is  engaged  in  his  duty  as  factor  for  sale,  he  is  responsible  only 
as  factor,  or  for  his  negligence  or  default,  and .  not  as  carrier. 
But  after  he  has  sold  the  property,  and  has  received  the  price 
which  he  is  to  return  to  the  owner,  his  responsibility  as  a  car- 
rier revives,  and  in  that  capacity  he  is  liable  for  any  loss  of  the 
money.  (/) 


(d)  Steplienson  ?;.  Hart,  4  Bing.  476  ; 
Dufty.  Biuld,  3  Br.  &  Bing.  177. 

(e)  Stone  r.  Waitt,  31  Maine,  409 ; 
Williams  r.  Nichols,  13  Wend.  58;  The 
Waldo,  Davies,  161. 

{/)  Thus,  where  the  owners  of  a  steam- 
boat, which  ran  upon  the  Ohio  River,  took 
produce  to  be  carried  and  sold  by  them 
for  a  certain  freight,  and  were  bringing 
back  in  the  same  vessel  the  money  which 
the}'  obtained  on  the  sale  of  the  produce, 
when  the  vessel  and  the  money  were  acci- 
dentally consumed"  by  fire  ;  it  wq^  held 
that  under  the  usage  of  trade  in  the  west- 
ern waters,  they  wei'e  acting  as  common 
carriers  in  going,  as  factors  in  selling  the 
produce,  and  as  common  carriers  in  bring- 
ing back  the  money,  and  were  liable  for 
its  loss,  notwithstanding  the  accident. 
Harrington  v.  McShane,  2  Watts,  443. 
And  per  Sergeant,  J.  :  "  The  question  of 
the  defendant's  responsibility  in  the  pres- 
ent case  depends  on  the  character  in  which 
they  held  this  money  when  the  loss  oc- 
curred. If  they  were  merely  factors  they 
are  not  responsible  ;  if  tlicy  were  carriers, 
the  reverse  must  be  the  case.  Had  the 
flour  been  lost  in  the  descending  voyage, 
by  a  similar  accident,  there  could  be  no 
doubt  whatever  of  the  defendant's  liability; 
they  were  certainly  transporting  it  in  the 
character  of  carriers.  On  their  arrival  at 
the  port  of  destination,  and  landing  the 
flour  there,  this  character  ceased,  and  the 
duty  of  factor  commenced.  When  the 
flour  was  sold,  and  the  specific  money,  the 
proceeds  of  sale,  separated  from  other 
moneys  in  the  defendants'  hands,  and  set 
apart  for  the  plaintiffs,  was  on  its  retui-n 
to  them  by  the  same  boat,  the  character  of 

[712] 


carrier  reattached.  The  return  of  the 
proceeds  by  the  same  vessel  is  within  the 
scope  of  the  receipt  and  of  the  usage  of 
trade,  as  proved,  and  the  freight  paid  may 
be  deemed  to  have  been  fixed  with  a  view 
to  the  whole  course  of  the  trade,  embracing 
a  reward  for  all  the  duties  of  transporta- 
tion, sale,  and  return.  If  the  defendants, 
instead  of  bringing  the  money  home  in 
their  own  vessel,  had  sent  it  on  freight  by 
another,  there  would  have  been  to  the 
plaintiffs  the  responsibility  of  a  earner, 
and  there  ought  not  to  be  less  if  they  chose 
to  bring  it  themselves.  If  they  had  mixed 
the  money  with  their  own,  they  would 
have  no  excuse  for  non-payment.  The 
defendants  can  be  relieved  from  responsi- 
bility only  by  holding  that  the  character  of 
carrier  never  existed  between  these  parties 
at  all,  or  that  if  it  existed,  on  the  descend- 
ing voyage,  it  ceased  at  its  termination, 
and  that  of  factor  began  and  continued 
during  the  ascending  voyage.  But  if  the 
defendants  bring  back  in  the  same  vessel 
other  property,  the  proceeds  of  the  ship- 
ment, whether  specific  money  or  goods, 
they  do  so  as  carriers,  and  not  merely  as 
factors."  So  where  a  master  of  a  vessel, 
employed  in  the  transportation  of  goods 
between  the  cities  of  Albany  and  New 
York,  received  on  board  a  quantity  of 
fiour  to  be  carried  to  New  York,  and  there 
sold  in  the  usual  course  of  such  business 
for  the  ordinary  freight ;  and  the  flour  was 
sold  by  the  master  at  New  York  for  cash, 
and  while  the  vessel  was  lying  at  the  dock, 
the  cabin  was  broken  open  and  the  money 
stolen  out  of  the  master's  trunk  while  he 
and  the  crew  were  absent ;  it  was  /if/f/that 
the  owners  of  the  vessel  were  answerable 


CII.  xil] 


BAILMENT. 


685-*686 


The  common  principles  of  agency  apply  to  the  carrier;  he  is 
liable  for  the  acts  of  those  whom  he  employs  and  *authorizes  to 
act  for  him.  But  a  party  may  contract  with  the  servant  alone, 
and  then  can  hold  him  only,  (g) 

The  question,  when  the  carrier  is  liable  beyond  his  own  route, 
has  been  recently  much  considered,  and  is  not  yet  quite  settled. 
If  carriers  for  different  routes,  which  connect  together,  associate 
for  the  purpose  of  carrying  parcels  through  the  whole  line,  and 
share  the  profits,  they  are  undoubtedly  partners,  and  each  is 
liable  in  solido  for  the  loss  or  injury  of  goods  which  he  under- 
takes to  carry,  in  whatever  part  of  the  line  it  may  have  hap- 
pened. (//)     If  the  carriers   be  not  so  distinctly  associated,  but 


for  the  money  to  the  shippers  of  the  flour, 
thouiiih  no  comniissions,  or  a  distinct  com- 
pensation, lieyond  the  frcijxht,  were  al- 
loweil  for  the  sale  of  the  j^oods  and  hring- 
inji;  l)ack  the  money,  siicli  l)eing  tlie  dnty 
of  tiie  master,  in  the  usual  course  of  the 
employment,  where  no  special  instructions 
were  piven.  Kemp  v.  Couahtry,  11 
Johns.  107.  \\\(\,  per  cnrimn  :  "  Had  the 
pro])erty  which  was  put  on  hoard  this 
ves.sel  for  transi)ortation  heen  stolen  he- 
fore  it  was  converted  into  money,  there 
could  he  no  douht  the  defendants  would 
have  licen  resjionsihle.  But  the  character 
of  common  carrier  does  not  cease  upon 
the  sale  of  the  )iroperty.  According  to 
the  testimony  in  this  case,  the  sale  of  the 
goods  and  return  of  the  jiroceeds  to  the 
owner  is  a  part  of  the  duty  attached  to  the 
emjjloymeut,  where  no*pecial  instructions 
are  given.  The  contract  hetwcen  the 
parties  is  entire,  and  is  not  fulfilled  on  the 
))art  of  the  carrier  until  he  h.is  complied 
witii  his  orders,  or  has  accounted  with  the 
owner  for  the  ])roceeds,  or  hrought  him- 
self within  one  of  the  exce])ted  cases. 
The  sale  in  this  case  was  actually  made, 
and  tlie  money  received  ;  ami  had  it  been 
invested  in  other  property,  to  he  trans- 
ported from  New  York  to  All)any,  there 
would  he  no  (piestion  hut  the  character  of 
common  carrier  would  have  continued. 
It  can  make  no  dilfereuce  whether  the 
return  cargo  is  in  money  or  goods.  A 
])erson  may  !)e  a  common  carrier  of  money, 
as  well  as  of  other  jiroperty.  Carth.  4S."). 
Although  no  commission  or  distinct  com- 
pensation was  to  he  received  upon  the 
money,  yet  according  to  the  evidence,  it 
ai)pears  to  he  a  i)art  of  tlie  dtUy  attached 

GO* 


to  the  cmplojTTicnt,  and  in  the  usual  and 
ordinary  course  of  the  business,  to  bring 
back  the  money  when  the  cargo  is  sold 
for  cash.  The  freight  of  the  cargo  is  the 
comi)ensation  for  the  whole  ;  it  is  one  en- 
tire concern.  And  the  suit  may  be  brought 
against  the  owners  of  the  vessel.  The 
master  is  considered  their  agent  or  servant, 
and  they  are  responsible  for  the  faithful 
discharge  of  his  trust."  See  also,  Taylor 
r.  Wells,  3  Watts,  6.5  ;  Emery  v.  Ilersey, 
4  Greeni.  407.  —  It  should  be  observed, 
however,  that  Mr.  Justice  Story  has  made 
some  strictures  upon  the  case  of  Kemp  v. 
Conglitry,  for  which  see  Storv  on  Bailin. 
§§  .')47,  548. 

(ij)   Sec  ante,  p.  650,  n.  (/;). 

(/()  Thus,  where  A  and  B  were  jointly 
interested  in  the  profits  of  a  common 
statre-wagon,  but,  by  a  private  agreement 
between  themselves,  each  imilertook  the 
conducting  and  management  of  the  wagon, 
with  his  own  drivers  and  horses,  for  speci- 
fied distances  ;  it  was  /«/</,  notwithstand- 
ing this  private  agreement,  that  they  were 
joimly  responsilile  to  third  ])ersons  for  the 
negligeiu-e  of  their  drivers  throughout  the 
whole  distance.  Waland  v.  Klkins,  I 
Stark.  27i>,  S.  C.  uom.  Weyland  r.  El- 
kins,  Holt,  N.  p.  227.  See  also,  Fromont 
V.  Coiipland,  2  Bing.  170;  Helsby  i-. 
Mcars,  5  B.  &  C.  504.  So  where  an  asso- 
ciation was  formed  between  shipjiers  on 
Lake  Ontario,  and  the  owners  of  camil 
boats  on  the  Erie  Canal,  for  the  transpor- 
tation of  goods  and  nurchandise  between 
the  city  of  New  York  and  the  ])orts  and 
])laces  on  Lake  ( )ntario  and  the  liiver  St. 
Lawrence,  and  a  contract  was  entered  into 
bv  the  agent  of  such  association,  for  the 

[713] 


687*-688* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


are  so  far  connected  that  they  undertake,  or  authorize  the  public 
to  sup|)ose  that  they  undertake,  for  the  whole  line,  they  should 
be  responsible  as  before,  (i)  But  undoubtedly  a  carrier  may 
receive  a  parcel  to  carry  as  far  as  he  goes,  and  then  to  send  it 
farther  by  another  carrier.  And  where  this  is  clearly  the  case, 
his  responsibilities  as  carrier  and  as  forwarder  are  entirely  dis- 
tinct. (J)  The  difficulty  is  in  determining  between  these  cases  ; 
the  weight  of  authority  until  recently  seemed  to  be  in  favor  of 
the  rule,  that  a  carrier  who  knowingly  received  a  parcel  directed 
or  consigned  to  any  particular  place,  undertook  to  carry  it  there 
himself,  unless  he  made  known  a  different  purpose  and  under- 
taking *to  the  owner.  This  is  perhaps  still  the  English  doctrine. 
But  recent  American  decisions  have  importantly  qualified,  if 
they  have  not  overthrown,  the  English  authorities.  *The  pre- 
vailing rule  in  this  country  may  now  be  said  to  cast  upon  the 
carrier  no  responsibility  as  a  carrier  beyond  his  own  route,  (re- 
quiring, of  course,  due  care  in  forwarding  the  parcel,)  unless  the 
usage  of  the  business,  or  of  the  carrier,  or  his  conduct  or  lan- 
guage, shows  that  he  takes  the  parcel,  as  carrier,  for  the  whole 
route,  (k)  And  his  receipt  of  payment  for  the  whole  route, 
would  be   evidence  going  far   to    prove   such    undertaking.  (/) 


transportation  of  goods  from  the  city  of 
New  York  to  Ogdensbm-g,  on  tlie  River 
St.  Lawrence,  and  tlie  goods  were  lost  on 
Lake  Ontario ;  it  was  /((/(/,  that  all  the 
■defendants  were  answerable  for  the  loss, 
althouah  some  of  them  had  no  interest  in 
the  vessel  navigating  the  lake,  in  which 
the  goods  were  shipped.  Fairchild  v. 
Slocum,  19  Wend.  329,  7  Hill,  292. 

(/)  Weed  V.  The  S.  &  S.  Railroad  Co., 
19  Wend.  534. 

(  /)  Garside  v.  Trent  &  Mersey  Navi- 
gation Co.,  4  T.  R.  581  ;  Ackley  v.  Kel- 
logg, 8  Cow.  223. 

(k)  The  leading  English  case  upon  this 
point  is  Muschamp  v.  The  L.  &  P.  Junc- 
tion Railway  Co.,  8  M.  &  W.  421.  The 
defendants  were  the  proprietors  of  the 
Lancaster  and  Preston  Junction  Railway, 
and  carried  on  business  on  their  line  be- 
:tween  Lancaster  and  Preston,  as  common 
carriers.     At  Preston,  the  defendants'  line 


joined  that  of  the  North  Union  Railwaj-. 
The  plaintiff,  a  stone  mason,  living  at 
Lancaster,  had  gone  into  Derbyshire  in 
search  of  work,  leaving  his  liox  of  tools  to 
be  sent  after  him.  His  mother  according- 
ly took  the  box  to  tlie  railway  station  at 
LaiKaster,  directed  to  the  plaintiif  at  a 
place  beyond  Preston,  in  Derbyshire,  and 
requested  the  clerk  at  the  station  to  book 
it.  She  offered  to  pay  the  carriage  in  ad- 
vance for  the  whole  distance,  but  was  told 
by  the  clerk  that  it  had  better  l>e  paid  at 
the  place  of  delivery.  It  appeared  that 
the  box  ai-rived  safely  at  Preston,  but  was 
lost  after  it  was  despatched  from  thence 
by  the  North  Union  Railway.  The  plain- 
tiif brought  this  action  to  recover  for  the 
loss  of  the  box.  Rolfe,  B.,  liefore  whom 
the  case  was  tried,  stated  to  tlie  jury,  in 
summing  up,  that  where  a  common  carrier 
takes  into  his  care  a  parcel  directed  to  a 
particular  place,  and  does  not  by  positive 


(/)  See  preceding  note  ;   and  especially     plain  Transportation  Company,  23  Verm. 
[Farmers  and  Mechanics  Bank  v.  Cham-     186,  209. 

[714] 


CH.  XII.] 


BAILMENT. 


689-*690 


How  far  the  carrier  can  lessen  his  responsibility  by  his  own 
acts,  and  especially  by  notices  defining  or  entirely  *withdrawing 


agreement  limit  his  responsibility  to  apart 
only  of  the  distance,  that  is  prima  facie 
evidence  of  an  luulertakiny  to  carry  the 
parcel  to  tiie  place  to  which  it  is  directed ; 
and  that  the  same  rule  ajjplied,  althoufrh 
that  place  were  l)eyond  the  limits  witliin 
which  he  in  general  i)rofessed  to  carry  on 
his  trade  of  a  carrier.  On  a  motion  for  a 
new  trial,  the  Conrt  of  Exchequer  held 
the  instruction  to  he  correct.  Lord  Ahin- 
ger  said  :  "  It  is  adtnitted  I)y  the  defend- 
ants' counsel,  that  the  defendants'  contract 
to  do  something  more  with  the  parcel  than 
merely  to  carry  it  to  Preston  ;  they  say 
the  engairemcnt  is  to  carry  to  Preston,  and 
there  to  deliver  it  to  an  agent,  who  is  to 
carry  it  further,  who  is  afterwards  to  be 
replaced  by  another,  ami  so  on  until  the 
end  of  the  journey.  Now  that  is- a  very 
elaitorate  kiml  of  contract ;  it  is  in  sub- 
stance giving  to  the  carriers  a  general 
power,  along  the  whole  line  of  route,  to 
make  at  their  pleasure  fresh  contracts, 
wiiich  shall  Ije  binding  upon  the  ])rincipal 
who  employed  them.  Hut  if,  as  it  is  ad- 
mitted on  both  sides,  it  is  clear  tiiat  some- 
thing more  was  meant  to  be  done  by  the 
defendants,  than  carrying  as  fiir  as  Pres- 
ton, is  it  not  for  the  juiy  to  say  what  is 
the  contract,  and  lioir  ntnc/i  more  was-  un- 
dertaken to  be  done  by  them  ?  Now,  it 
certainly  might  be  true  that  the  contract 
between  tliese  parties  was  such  as  that 
suggested  by  the  counsel  for  the  defend- 
ants ;  but  other  views  of  the  ca.se  may  be 
suggested  quite  as  probable  ;  such,  for 
instance,  as  that  these  railway  comjjanies, 
though  se])arate  in  themselves,  are  in  the 
liabit,  for  their  own  advantage,  of  making- 
contracts,  of  which  this  was  one,  to  con- 
vey goods  along  the  whole  line,  to  the 
ultimate  terminus,  each  of  them  being 
agents  of  the  other  to  carry  them  forward, 
and  each  receiving  its  sliare  of  the  jirof- 
its  from  the  la.st.  The  fact  that,  accord- 
ing to  the  agreement  proveil,  the  car- 
riage was  to  be  paid  at  the  end  of  the 
journey,  rather  confirms  the  notion  that 
the  persons  who  were  to  cany  the  goods 
from  Preston  U)  their  final  destination 
were  under  the  control  of  the  defendants, 
who  consetiueiitiy  exercised  some  iuHu- 
encc  and  agency  beyond  tiie  immediate 
terminus  of  their  own  railway.  Is  it  not, 
then,  a  question  for  the  jury  to  say  what 
the  nature  of  this  contract  was  ;  and  is  it 
not  as  reasonable  an  inference  for  them  to 


draw,  that  the  whole  was  one  contract,  as 
the  contrary  ?  I  hardly  think  tiiey  would 
be  likely  to  infer  so  elaborate  a  contract 
as  that  which  the  defendants'  counsel  sug- 
gest, namely,  that  as  the  line  of  the  de- 
fendants' railway  terminates  at  Preston, 
it  is  to  be  ])resumed  that  the  plaintiff,  who 
intrusted  the  goods  to  them,  made  it  part 
of  his  bargain  that  they  should  employ  for 
him  a  fresh  agent  both  at  that  place  and 
at  every  subse(|ucnt  ciiange  of  railway  or 
conveyance,  and  on  each  shifting  of  the 
goods  give  such  a  docuinent  to  the  new 
agent  as  should  render  him  responsible. 
Suppose  the  owner  of  goods  sent  under 
such  circumstances,  when  he  finds  they 
do  not  come  to  hand,  comes  to  the  rail- 
way oftice  and  makes  a  com|)!aint,  then, 
if  the  defendants'  argument  in  tiiis  case  be 
well  founded,  unless  tiie  railway  company 
refuse  to  su])ply  him  with  the  name  of  tlic 
new  agent,  they  break  their  contract.  It 
is  true  that,  practically,  it  might  make  no 
great  difference  to  the  ])roprietor  of  the 
goods  which  was  the  real  contract,  if  their 
not  immediately  furnishing  him  with  a 
name  would  entitle  him  to  bring  an  action 
against  thetn.  But  the  question  is,  why 
should  the  jury  infer  one  of  these  contracts 
rather  than  tlie  other  ?  Which  of  the  two 
is  the  most  natural,  the_  most  usual,  the 
most  ]M-obable  ?  Besiiles,  the  carriage- 
money  being  in  this  case  one  undivided 
sum,  rather  supjjorts  the  inference  that 
althougli  these  carriers  carry  only  a  cer- 
tain distance  with  their  own  vehicles,  they 
make  subordinate  contracts  with  the  other 
carriers,  and  are  partners  Inttr  se  as  to  the 
can'iage-nioney  ;  a  fact  of  wiiich  the  owner 
of  the  goods  could  know  nothing,  as  he 
only  pays  the  one  entire  sum  at  the  end  of 
the  journey,  which  they  afterwards  divide 
as  they  please.  Not  only,  therefore,  is 
there  some  evidence  of  this  being  the  na- 
ture of  the  contract,  but  it  is  the  most 
likely  contract  under  the  circumstances ; 
for  it  is  admitted  that  the  defendants  un- 
dertook to  do  more  than  simply  to  carry 
the  goods  from  Lancaster  to  Preston. 
The  whole  matter  is  therefore  a  question 
for  the  jury,  to  determine  wliat  tlie  con- 
tract was,  on  the  evidence  I)efore  them.  .  .  . 
In  cases  like  the  present,  particular  cir- 
cum-itances  might  no  doubt  be  adduced 
to  rebut  the  inference  which  /nima  J'ucie 
must  i)e  made  of  the  defeintants'  having 
undertaken  to  carrv  the  goods  the  whole 

■   [715] 


690- 


TUE   LAW    OF   CONTRACTS. 


[book  III. 


As  much  the  greater 


his   liability,  has   been  much  disputed 

part  of  the  cases  in  which  this  question  occurs,  or  is  likely  to 


way.  The  taking  charge  of  the  parcel  is 
not  put 'as  conclusive  evidence  of  the  con- 
tract sued  on  hy  the  phiintitf ;  it  is  only 
prima,  facie  evidence  of  it ;  and  it  is  useful 
and  reasonable  for  the  benefit  of  tlie  public 
that  it  should  be  so  considered.  It  is 
better  that  those  who  undertake  the  car- 
riage of  parcels,  for  their  mutual  benefit, 
should  arrange  matters  of  this  kind  inter 
se,  and  should  be  taken  each  to  have  made 
the  others  tiieir  agents  to  carry  forward." 
This  case  is  fully  a]:)]jrovcd  and  confirmed 
by  the  late  case  of  Watson  v.  The  A.,  N., 
&  B.  llailway  Co.,  3  E.  L.  &  E.  497,  in 
the  Queen's  Bench.  That  was  an  action 
for  the  recovery  of  damages  sustained  l)y 
the  plaintiff,  by  reason  of  the  non-delivery, 
in  proper  time,  of  plans  and  models  sent 
by  liim  from  Grantham  to  Cardiff.  Tlie 
defendants'  railway  extended  only  as  far 
as  Nottingham,  where  it  was  Joined  by 
anotlier  railway,  which  was  continued  to 
Bristol.  It  ajjpeared  that  a  person  of  the 
name  of  Chevins  had  been  appointed  by 
the  defendants  as  their  station-master  at 
Grantham,  to  receive  and  deliver  parcels 
to  be  sent  by  the  railway  from  tliat  place, 
and  that  in  such  capacity  he  liad  received 
the  package  in  question,  which  was  di- 
rected to  Cardiff;  and  there  was  some 
evidence  to  show  that  Chevins  had  told 
the  ]>laintiff  that  the  package  would  arrive 
at  Cardiff  in  time.  The  station-master 
had  said,  when  the  package  was  delivered 
to  him,  that  he  could  receive  payment  for 
it  only  so  far  as  Nottingham,  as  he  had 
no  rates  of  payment  beyond  ;  and  there- 
upon tlie  words  on  the  jjackage,  "  paid  to 
Bristol,"  were  erased,  and  the  words, 
"  paid  -  to  Nottingham,"  substituted  by 
Chevins,  l)ut  this  was  done  without  tlie 
knowledge  of  the  plaintiff,  and  the  original 
direction  was  left  on  the  package,  wiiich, 
being  detained  at  Bristol,  did  not  arrive  at 
Cardiff  in  due  time.  The  court  held  that 
the  defendants  were  liable.  Patteson,  J., 
said  :  "  The  case  of  Muschnmp  c.  Tiie 
Lancaster  and  Preston  Junction  Railway 
Co.,  is  directly  in  point;  and  if  carriers 
receive  a  package  to  carry  to  a  particular 
place,  whether  they  themselves  carry  it  all 
the  way  or  not,  they  must  be  said  to  have 
the  conveying  of  it  to  the  end  of  the  jour- 
ney, aiul  the  other  parties  to  wliom  they 
may  liand  it  over  are  tlieir  agents.  We 
must  adhere  to  this  principle,  and  the 
company  are  clearly  liable,  unless  the  facts 

[716] 


show  that  their  responsibility  has  deter- 
mined. Their  not  having  taken  the 
amount  of  the  carriage  is  immaterial,  and 
is  explained  by  the  fact  of  their  not  know- 
ing what  that  amount  would  be.  Chevins 
appears  to  have  been  the  agent  of  tiie  de- 
fendants ;  he  receives  the  parcel  to  carry 
it  to  Cardiff,  and  makes  out  an  invoice, 
which  the  defendants  have  refused  to  pro- 
duce. Now,  putting  these  circumstances 
together,  there  is  abundant  evidence  that 
they  contracted  to  carry  tlie  package  to 
Cardiff,  and  they  were  guilty  of  negligence 
in  detaining  it  at  Bristol."  And  per 
Erie,  J. :  "  The  first  question  is,  whether 
tliere  is  any  evidence  of  the  defendants 
having  contracted  :  and  I  think  the  person 
to  whom  the  package  was  delivered  must 
be  taken  to  be  the  agent  of  the  company. 
Then,  having  received  a  parcel  to  be  con- 
veyed to  Cardiff,  when  their  line  only  ex- 
tends to  Nottingham,  do  they  make  them- 
selves liable  for  its  carriage  bej'ond  their 
own  line  ?  This  question  was  much  con- 
sidered in  Muschamp  v.  The  Lancaster 
and  Preston  Junction  Railway  Co.,  and  I 
think  it  was  there  properly  decided,  that 
where  goods  are  received  at  one  terminus 
for  conveyance  to  another,  the  company 
are  -answerable  for  all  the  intermediate 
termini,  and  the  receipt  of  such  goods  is 
prima  facie  evidence  of  such  liability." 
The  same  doctrine  was  declared  by  the 
Supreme  Court  of  New  York,  in  the  case 
of  St.  John  V.  Van  Santvoord,  25  Wend. 
6G0.  But  tlieir  judgment  in  that  case  was 
reversed  by  the  Court  for  the  Correction 
of  Errors.  *  See  6  Hill,  157.  The  English 
rule  is  said  also  to  have  been  adopted  in 
Bennett  i:  Filyaw,  1  Florida,  403.  See 
Aug.  Com.  Car.  100.  A  somewluit 
similar  question  arose  in  tlie  late  ease  of 
■\Vik-ox  V.  Parmelee,  3  Sandf.  610.  There 
the  plaintiff  purchased  in  the  city  of  New 
York  a  ([uantity  of  merciiandise,  which 
the  defendant  undertook  to  forward  from 
thence  to  Fairjjort,  Ohio,  by  a  written 
agreement,  for  fifty  cents  by  vessel,  and 
sixty-five  cents  per  100  lbs.  liy  steam. 
Those  goods  marked  "  steam,"  to  go  by 
steam,  all  other  goods  "to  be  shipped  by 
vessel  from  Buffalo."  Certain  goods 
were  marked  to  go  by  steam,  but  they 
were  sent  forward  from  Bufl'alo  in  a  sail- 
ing vessel,  and  were  lost  in  a  gale  on  Lake 
Erie.  It  appeared  that  the  defendant 
owned   a  line  of  boats  on  the  canal  be- 


CH.  XIL] 


BAILMENT. 


-690 


occur,  is  in  relation  to  the  property  of  passengers,  we  will  con- 
sider this  question  under  our  next  topic. 


twcen  Albany  and  Buffalo,  but  that 
lie  had  no  vessels  on  Lake  Eric. 
Held,  tliat  the  defendant,  by  the  terms 
of  his  contract,  was  a  common  car- 
rier, from  New  York  to  Fairport,  and  not 
merely  on  the  canal ;  and  that  he  was 
liable  for  the  loss. — The  English  rule  is 
condemned  in  very  .sti-ong  terms  by  Mr. 
Justiie  Uidjii'hl,  in  the  case  of  Farmers'  & 
ilecliaincs'  JJank  v.  Champlain  Transfjor- 
tation  Co.,  2.3  Verm.  18G,  209.  In  speak- 
ing of  the  obligation  of  the  carrier  to  make 
a  personal  delivery,  the  learned  judge 
says  :  "  There  has  been  an  attempt  to 
push  one  department  of  the  law  of  car- 
riers into  an  absurd  extreme,  as  it  seems 
to  us,  by  a  misapplication  of  this  rule  of 
the  carrier  being  bound  to  make  a  personal 
delivery.  That  is,  by  holding  the  first 
carrier,  upon  a  route  consisting  of  a  suc- 
cession of  carriers,  liable  for  the  safe  de- 
livery of  all  articles  at  their  ultimate  des- 
tination. Muschamp  r.  The  L.  &  P. 
Railway  Co.,  8  M.  &  W.  421,  is  the  only 
English  case  much  relied  ujiou  in  favor  of 
any  such  proposifion,  and  that  case  is,  by 
the  court,  put  ujion  tlie  ground  of  the  par- 
ticular contract  in  tlie  case  ;  and  also,  that 
'  All  convenience  is  '  in  favor  of  such  a 
rule,  '  and  tiiere  is  no  autliority  against  it,' 
as  said  by  IJaron  Rolfe,  in  giving  judgment. 
St.  John  V.  Van  Santvoord,  2,')  Wend. 
660,  assumed  similar  ground.  But  this 
com-t,  in  this  same  case,  (16  Venn.  52,) 
did  not  consider  that  decision  as  sound 
law,  or  good  sense  ;  and  it  has  since  been 
rcvcrscfl  in  the  Court  of  Errors,  Van 
Santvoord  v.  St.  John,  6  Hill,  1  .')8,  iind 
this  last  decision  is  expressly  recognized 
by  this  court,  18  Verm.  1.31.  Weed  v. 
Schencct.  &  Sar.  Railroad  Co.,  10  Wend. 
534,  is  considered  by  many  as  having 
adopted  the  same  view  of  tlie  subject. 
But  that  case  is  readily  reconciled  witli 
the  general  rule  upon  this  subject,  that 
each  carrier  is  only  bouiul  to  the  end  of 
his  own  route,  and  for  a  delivery  to  tlic 
next  carrier,  by  the  consideration  that  in 
this  case  there  was  a  kind  of  ])artiK'rship 
connection  between  the  first  coini)any  and 
the  other  companies,  constituting  the  en- 
tire route,  and  also  that  the  fii-st  carriers 
took  pay  and  gave  a  ticket  through,  which 
is  most  relied  upon  by  the  court.  But 
sec  0|iiniou  of  \\'<iliroiili,  Cii.,  in  Van 
Santvoord  r.  St.  John,  6  Hill,  1.^)8.  And 
in  such  cases,  where  the  first  company 
gives  a  ticket  and  takes  jiay  through,  it 


may  be  fairly  considered  equivalent  to  an 
undertaking  to  be  responsible  throughout 
tlie  entire  route.  The  case  of  Bennett  r. 
Filyaw,  1  Florida,  403,  is  referred  to  in 
Angell  on  Carriers,  §  95,  note  1,  as  favor- 
ing this  view  of  the  sulijcct.  The  rule 
laid  down  in  Garsidc  r.  Trent  &  ^Icr.sey 
Nav.  Co.,  4  T.  R.  581,  tliat  each  carrier, 
in  the  absence  of  special  contract,  is  only 
liable  for  the  extent  of  his  own  route,  and 
tlie  safe  storage  and  delivery  to  the  next 
carrier,  is  undoubtedly  the  better,  tlie 
more  just  and  rational,  and  the  more 
gcnerallv  recognized  rule  upon  the  sub- 
ject. Ackley  v.  Kellogg,  8  Cow.  223. 
This  is  the  case  of  goods  carried  by  water 
from  New  York  to  Troy,  to  be  put  on 
board  a  canal  boat  at  that  place,  and  for- 
warded to  the  north,  and  the  goods  were 
lost,  by  the  upsetting  of  the  canal  boat, 
and  the  defendants  were  held  not  liable 
for  the  loss  beyond  their  own  route.  The 
cases  all  seem  to  regard  this  as  the  gen- 
eral rule  upon  this  sul)ject,  with  the  ex- 
ception of  those  above  referred  to  ;  one  of 
which  (8  INI.  &  W.  421,)  considers  it 
chiefly  a  matter  of  fact,  to  be  determined 
by  the  jury  as  to  the  extent  of  the  under- 
taking ;  one,  (25  Wend.  660,)  has  been 
disregarded  by  this  court,  and  reversed  by 
their  own  Court  of  Errors,  (6  Hill,  158)  ; 
one,  (19  Wend. -534,)  is  the  case  of  ticket- 
ing througli,  upon  connected  lines ;  and 
one,  (I  Florida,  403,)  I  iiave  not  seen." 
And  in  Nutting  r.  Conn.  River  I^  R. 
Co.,  1  Gray,  502,  it  was  held  that  a 
railroad  corporation,  receiving  goods  for 
transportation  to  a  ])lace,  situated  beyond 
the  line  of  their  road,  on  another  railroad, 
which  connects  with  theirs,  but  with  the 
]iroprictors  of  which  they  have  no  connec- 
tion in  business,  and  taking  \K\y  for  the 
trans])ortation  over  their  own  road  only, 
is  not  liable,  in  the  absence  of  any  special 
contract,  for  the  loss  of  tlie  goods,  after 
their  delivery  to  the  pro])rietors  of  the 
other  railroad.  And  J/c/cd//",  J.,  deliver- 
ing the  opinion  of  the  court,  said  :  "  On 
the  facts  of  this  case,  we  are  of  opinion 
that  there  must  be  judgment  for  the  de- 
fendants. Springfield  is  the  southern  ter- 
minus of  their  road  ;  and  no  connection  in 
business  is  shown  between  them  and  any 
other  railroad  company.  When  they 
carry  goods  tiiat  arc  ilcstined  beyond  that 
terminus,  they  take  ])ay  only  for  tiie  trans- 
portation over  their  own  road.  Wiiat, 
then,  is  the  obligation  imposed  on  them 
[717] 


-690 


THE   LAW    OF   CONTRACTS. 


[book   III. 


SECTION    XIII. 


COMMON   CARRIERS    OF   PASSENGERS. 

The  carrier  of  passengers  is  not  liaT3le  for  them  in  the  same 
way  in  which  the  carrier  of  goods  is  liable.  The  rule,  the  ex- 
ception, the  limitation  of  the  exception  and  reason  of  it,  are  now 
all  perfectly  well  settled.  By  the  general  rule,  the  liability  of 
the  common  carrier  does  not  depend  upon  his  negligence,  be- 
cause he  insures  the  owners  of  all  the  goods  he  carries  against 
all  loss  or  injury  that  does  not  come  from  the  act  of  God  or  the 


by  law,  in  the  absence  of  any  special  con- 
tract by  them,  wlicn  they  receive  goods  at 
their  depot  in  Northampton,  wliich  are 
marked  with  tlie  names  of  consignees  in 
the  city  of  New  York  ?  In  onr  judgment, 
that  obligation  is  nothing  more  than  to 
transport  the  goods  safely  to  the  end  of 
their  road,  and  there  deliver  them  to  the 
proper  carriers,  to  be  forwarded  towards 
their  ultimate  destination.  This  the  de- 
fendants did,  in  the  present  case,  and  in 
so  doing,  performed  their  full  legal  duty. 
If  they  can  be  Iield  liable  for  a  loss  that 
happens  on  any  railroad  besides  their  own, 
we  know  not  what  is  the  limit  of  their 
liability.  If  they  are  liable  in  tliis  case, 
we  do  not  see  why  they  would  not  also  be 
liable  if  the  boxes  liad  been  marked  for 
consignees  in  Chicago,  and  had  been  lost 
between  tliat  place  and  Detroit,  on  a  road 
with  which  they  had  no  more  connection 
than    they   have    with    any   railroad    in 

Europe The  plaintiff's  counsel  relied 

on  the  case  of  Muschamp  v.  Lancaster  & 
Preston  Junction  Railway,  8  M.  &  W. 
421,  in  wliich  it  was  decided  by  the  Court 
of  Exchequer,  that  when  a  railway  com- 
pany take  into  their  care  a  parcel  directed 
to  a  particular  place,  and  do  not  by  posi- 
tive agreement  limit  their  res])onsibility  to 
a  part  only  of  the  distance,  that  is  prlmd 
facie  evidence  of  an  undertaking  to  carry 
the  parcel  to  the  place  to  which  it  is  di- 
rected, although  that  place  be  bej^ond  the 
limits  within  which  the  company  in  gen- 
eral profess  to  carr_y  on  tiieir  business  of 
carriers.  And  two  justices  of  the  Queen's 
Bencli  subsequently  made  a  like  decision. 
■  Watson  I'.  Ambergate,  Nottingliam,  & 
Boston  Kailwav,  3  E.  L.  &  E.  407.     We 

[718] 


cannot  concur  in  that  view  of  the  law ; 
and  we  are  sustained,  in  our  dissent  from 
it,  by  the  Court  of  Errors  in  New  York, 
and  by  the  Supreme  Courts  of  Vermont 
and  Connecticut.  Van  Santvoord  v.  St. 
John,  6  Hill,  157  ;  Farmers'  &  Mechanics' 
Bank  v.  Champlain  Transportation  Co., 
18  Verm.  140,  and  23  Verm.  209  ;  Hood 
V.  New  York  &  New  Haven  Railroad,  22 
Conn.  1.  In  these  cases,  the  decision  in 
Weed  V.  Saratoga  &  Schenectady  Rail- 
road, 19  Wend.  534,  (which  was  cited  by 
the  present  plaintifi''s  counsel,)  was  said 
to  be  distinguishable  from  such  a  case  as 
this,  and  to  be  reconcilable  witii  tlie  rule, 
that  each  carrier  is  bound  only  to  the  end 
of  his  route,  unless  he  makes  a  special 
contract  that  binds  him  further."  See 
also  on  this  subject,  Fowles  v.  Great  West- 
ern Railway  Co.,  16  E.  L.  &  E.  531  ; 
Scottliorn  v.  South  Staffordshire  Railway 
Co.,  18  id.  553;  Wilson  r.  York,  New- 
castle, &  Berwick  Railway  Co.,  id.  557  ; 
Walker  v.  York  &  North  Midland  Railway 
Co.,  22  id.  315;  Hellaby  v.  Weaver,  17 
Law  Times  Reps.  In  the  case  of  Hood 
V.  New  York  &  New  Haven  Railroad  Co., 
22  Conn.  1,  S.  C.  id.  502,  it  was  held  that 
the  corporate  power  of  a  railroad  did  not 
cjitend  to  a  contract  for  the  carriage  of  a 
person  by  staging  beyond  their  own  length 
of  road,  and  that  the  fact  tiiat  they  had 
been  for  a  long  time  in  the  habit  of  mak- 
ing and  executing  sucli  contracts,  could 
not  estop  them  from  setting  \^^  this  lack 
of  power  when  sued  by  a  person  to  whom 
they  had  given  a  ticket  for  conveyance 
beyond  their  line  of  route,  and  who  was 
injured  on  such  passage. 


CH.  XII.] 


BAILMENT. 


*691 


public  enemy.  The  exception  to  this,  in  the  case  of  the  carrier 
of  passengers,  is,  that  he  is  liable  only  where  the  injury  has 
arisen  from  his  own  negligence ;  and  the  limitation  to  this  ex- 
ception is,  that  he  is  thus  liable  for  injuries  resulting  from  the 
slightest  negligence  on  his  part,  (m)    *Whether  he  is  thus  liable, 


(m)  Derwort )-.  Loomer,  21  Conn.  246  ; 
Fuller  ?•.  NaufTiituck  Kailroad  Co.  id.  558; 
Caldwell  v.  Murphy,  1  Duer,  233  ;  He<;e- 
uian  V.  Western  li.K.  Corp.  16  Barl).  353  ; 
Nashville  &  C.  K.  11.  Co.  v.  ^Icssino, 
1  Snced,  220.  This  wa.s  very  authorita- 
tively declared  by  Lord  Cliict'  Justice  Eyre 
in  the  case  of  Aston  v.  Heavan,  2  Esp. 
533.  That  was  an  action  against  the  de- 
fendants, as  proprietors  of  a  stage-coach, 
to  recover  damages  received  i)y  the  plain- 
tiff in  consequence  of  the  upsetting  of  the 
defendants''  coach.  The  defence  relied 
upon  wa.s,  that  the  coach  was  driving  at  a 
regular  pace  on  the  Ilanimersmitli  road, 
hut  that  on  the  side  was  a  pump  of  con- 
siderahle  height,  from  w-hence  the  water 
was  falling  into  a  tub  below  ;  that  the  sun 
shone  brightly,  and  l)eing  reflected  strongly 
froin^tlie  water,  the  horses  had  taken  fright 
and  run  against  the  bank  at  tlie  oiipositc 
side,  where  the  coach  was  overset.  And 
per  J\i/re,  C.  J.  :  "  This  action  is  founded 
entirely  in  negligence.  It  has  been  said 
by  the  counsel  for  the  plaintiff,  that 
wlierever  a  case  happens,  even  where  there 
has  ])een  no  negligence,  he  would  take  the 
opinion  of  the  court  whether  defendants 
circumstanced  as  the  present,  that  is,  coach 
owners,  should  not  be  liable  in  all  cases, 
exce|)t  where  the  injury  hajipcns  from  the 
act  of  God  or  the  king's  enemies.  I  am 
of  opinion  the  cases  of  the  loss  of  goods 
by  can'iers  and  the  present,  are  totally  un- 
like. When  that  case  docs  occur,  he  will 
be  told  that  carriers  of  goods  are  liable  by 
the  custom,  to  guard  against  frauds  they 
might  be  tempted  to  commit  by  taking 
goods  intrusted  to  them  to  carry,  and  then 
pretending  tliey  had  lost  or  been  robbed  of 
them  :  anil  because  they  can  jjrotect  them- 
selves ;  but  there  is  no  such  rule  in  the 
case  of  the  carriage  of  the  persons.  This 
action  stands  on  the  ground  of  negligence 
only."  To  the  same  cti'cct  is  the  ruling 
of  Sir  James  Mausfulil  in  Christie  ?■. 
CJriggs,  2  Camp.  79.  That  was  an  action 
of  assumpsit  against  the  defendant  as 
owner  of  the  IJlackwall  stage,  on  which 
the  jilaintitf,  a  pilot,  was  travelling  to  Lon- 
don, when    it   broke   down    and   he  was 


greatly  bruised.  The  first  count  imputed 
the  accident  to  the  negligence  of  the  driver; 
the  second  to  the  insufliciency  of  the  axle- 
tree  of  the  carriage.  The  defendant  in- 
troduced evidence  to  show  that  the  axle- 
tree  had  been  examined  a  few  days  before 
it  broke,  without  any  flaw  being  discovered 
in  it;  and  that  when  the  accident  happen- 
ed, the  coachman,  a  very  skilful  driver, 
was  driving  in  the  usual  track,  and  at  a 
moderate  pace.  And,  per  Mansjitid,  C.  J., 
in  summing  up  to  the  jury:  "As  the 
driver  has  been  cleared  of  every  thing  like 
negligence,  the  question  for  the  Jury  will 
be  as  to  the  sutiicicncy  of  the  coach.  If 
the  axletrec  was  sound,  as  far  as  human 
eye  could  discover,  the  defendant  is  not 
liable.  There  is  a  difierence  between  a 
contract  to  carry  goods  and  a  contract  to 
carry  passengers.  For  the  goods  the  car- 
rier is  answeralde  at  all  events.  But  he 
docs  not  warrant  the  safety  of  the  passen- 
gers. His  undertaking  as  to  them  goes 
no  further  than  this,  that  as  far  as  humaa 
care  and  foresight  can  go  he  will  ])rovide 
for  their  safe  conveyance.  Therefore,  if 
the  breaking  down  of  the  coach  was  pure- 
ly accidental,  the  plaintiff  has  no  remedy 
for  the  misfortune  he  has  encountered." 
See  also,  Harris  v.  Costar,  1  C.  &  V.  636 ; 
AVhite  V.  Boulton,  Peakc's  Cas.  81  ;  Crofts 
V.  Waterhousc,  3  Bing.  319.  Such  also 
has  been  repeatedly  declared  to  be  the  law 
in  this  country.  Thus,  in  the  case  of 
Derwort  v.  Loomer,  21  Conn.  245,  one  of 
the  latest  cases  on  this  subject,  Ellsworth, 
J.,  says  :  "  The  rule  of  law  on  this  subject 
is  fully  establisheil  in  our  own  courts  and 
elsewhere,  and  is  not  controverted  by  the 
learned  counsel  in  this  case.  The  princi- 
ple is  that  in  the  case  of  common  carriers 
of  passengci-s,  the  highest  degree  of  caro 
which  a  reasonable  man  would  use,  is  re- 
quired. This  rule  applies  alike  to  the 
character  of  the  vehicle,  the  horses  and 
harness,  the  skill  and  sobriety  of  the  driver, 
and  to  the  maimer  of  coixlucting  the  stage 
under  every  emergency  or  diflicidty.  The 
driver  must,  of  course,  be  attentive  and 
watchful.  He  has,  for  the  time  being, 
committed  to  his  trust,  the  safetv  and  lives 

[719]" 


692*-693* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


to  a  passenger  to  whom  he  has  *g'iven  passage,  and  from  whom 
he  has  therefore  no  right  to  *demand  fare,  is  not  so  certain  ;  but 


of  people,  old  and  young,  women  and 
children,  locked  up  as  it  were  in  the  coach 
or  rail-car,  ignorant,  helpless,  and  having 
no  eyes,  or  ears,  or  power  to  guard  against 
dangers,  and  who  look  to  him  for  safety 
in  their  transportation.  The  contract  to 
carry  passengers  differs,  it  is  true,  from  a 
contract  to  carry  freight ;  but  in  both  cases 
the  rule  is  rigorous  and  imperative  ;  in  the 
latter  the  canier  is  answerable  at  all  events 
except  for  the  act  of  God  and  the  pnlilic 
enemy ;  while  in  the  former  the  most  per- 
fect care  of  prudent  and  cautious  men  is 
demanded  and  required.  Tlie  stage-owner 
does  not  tvarrant  the  safety  of  passengers ; 
yet  his  undertaking  and  liability  as  to 
them  go  to  this  extent,  that  he  or  his  agent 
shall  possess  competent  skill,  and  that  as 
far  as  human  foresight  and  care  can  rea- 
sonably go,  he  will  transport  them  safeh-. 
He  is  not  liable  for  injuries  happening  to 
passengers,  from  sheer  accident  or  misfoi'- 
tune,  where  there  is  no  negligence  or  fault, 
and  where  no  want  of  caution,  foresight, 
or  judgment  would  prevent  the  injury. 
But  he  is  liable  for  the  smallest  negligence 
in  himself  or  his  driver."  See  also.  Fuller 
V.  The  Naugatuck  Railroad  Co.  21  Conn. 
557  ;  Hall  v.  Connecticut  River  Steamboat 
Co.  13    Conn.  319;    McKinney  v.  Neil, 

1  McLean,    540;    Maury   v.   Talmadge, 

2  id.  157;  Farish  v.  ileigle,  11  Grat- 
tan,  697  ;  Stokes  v.  Saltonstall,  13  Pet. 
181  ;  Stockton  v.  Frev,  4  Gill,  406  ;  Cam- 
den &  Amboy  R.  li.  Co.  v.  Burke,  13 
Wend.  626  ;  Hollister  v.  Nowlen,  1 9  Wend. 
236. — In  the  case  of  Boyce  v.  Anderson, 
2  Pet.  150,  the  question  arose  whether 
the  rule  applicable  to  the  carriage  of  goods 
or  that  a])plicable  to  the  carriage  of  pas- 
sengers sliould  be  applied  to  the  case  of 
negro  slaves.  That  was  an  action  brought 
by  the  owner  of  slaves,  against  the  pro- 
prietor of  a  steamboat  on  tlie  Mississippi, 
to  recover  damages  for  the  loss  of  the 
slaves,  alleged  to  have  lieen  caused  by  the 
negligence  or  mismanagement  of  the  cap- 
tain and  commandant  of  the  boat.  The 
case  came  up  on  error  from  the  Circuit 
Court  for  the  District  of  Kentucky.  The 
court  below  instructed  the  jury,  among 
other  things,  "  that  tlie  doctrine  of  com- 
mon carriers  did  not  apply  to  the  case  of 
carrying  intelligent  beings,  such  as  ne- 
groes ; "  and  the  Supreme  Court  held  this 
instniction  to  be  correct.  Marshall,  C.  J., 
said:  "There  being  no   special   contract 

[720] 


between  the  parties  in  this  case,  the  prin- 
cipal question  arises  on  the  opinion  ex- 
pressed by  the  court,  '  that  the  doctrine  of 
common  carriers  does  not  apjjly  to  the 
case  of  carrying  intelligent  beings  such  as 
negroes.'  That  doctrine  is,  that  the  car- 
rier is  responsible  for  every  loss  which  is 
not  produced  by  inevitable  accident.  It 
has  been  pressed  beyond  the  general  prin- 
ciples which  govern  the  law  of  bailment, 
by  considerations  of  policy.  Can  a  sound 
distinction  be  taken  between  a  human 
being  in  Avhose  person  another  has  an  in- 
terest, and  inanimate  property  ?  A  slave 
has  volition  ami  has  feelings  which  cannot 
be  entirely  disregarded.  These  i)roperties 
cannot  be  overlooked  in  conveying  him 
from  place  to  j)lace.  He  cannot  be  stowed 
away  as  a  common  package.  Not  only 
does  humanity  forbid  this  proceeding,  but 
it  might  endanger  his  life  or  health.  Con- 
sequently this  rigorous  mode  of  proceed- 
ing cannot  safely  be  adopted,  unless  stipu- 
lated for  by  special  contract.  Being  left 
at  liberty,  he  may  escape.  Tlie  carrier 
has  not  and  cannot  have  tiie  same  absglute 
control  over  him  that  he  has  over  inani- 
mate matter.  In  the  nature  of  things, 
and  in  his  chai'acter,  he  resembles  a  pas- 
senger, not  a  package  of  goods.  It  would 
seem  reasonable,  therefore,  that  the  respon- 
sibility of  the  carrier  should  be  measured 
by  the  law  which  is  applicable  to  passen- 
gers, rather  than  by  that  which  is  applica- 
ble to  the  carriage  of  common  goods. 
There  ai-e  no  slaves  in  England,  but  there 
ai-e  persons  in  whose  service  another  has 
a  temporary  interest.  We  believe  that 
the  responsibility  of  a  carrier  for  injury 
which  such  person  may  sustain,  lias  never 
been  placed  on  the  same  principle  with 
his  I'csponsibility  for  a  bale  of  goods.  He 
is  undoulitedly  answerable  for  any  injury 
sustained  in  consequence  of  his  negligence 
or  want  of  skill ;  but  we  have  never  under- 
stood that  he  is  resix)nsible  further.  The 
law  applicable  to  common  carriers  is  one 
of  great  rigor.  Though  to  the  extent  to 
which  it  has  been  carried,  and  in  tlie  cases 
to  which  it  has  ])cen  applied,  we  admit  its 
necessity  and  its  jjolicy,  wc  do  not  think 
it  ought  to  be  carried  further,  or  a]iplied  to 
new  cases.  We  think  it  has  not  l)ccn  ap- 
plied to  living  men,  and  that  it  ought  not 
to  be  applied  to  them."  Tlie  learned 
judge,  in  a  subsequent  part  of  his  opinion, 
intimated  that  the  carrier  of  passengers 


CH.  xil]  bailment.  *694 

he  would  certainly  be  liable  for  *  gross  negligence,  and  probably 


was  bound  only  to  ordinan-  dilif^cnce ; 
but  whatever  he  said  to  that  effect  cannot 
he  considered  as  hnw,  and  was  virtually 
overruled  in  the  suljsefjucjit  case  of  Stokes 
r.  Saltonstall,  1.3  Pet.  181, 192.  Sec  also, 
as  to  the  liahilitv  of  a  carrier  of  slaves, 
Clark  V.  McDonald,  4  MeCord,  223  ;  Wil- 
liams V.  Taylor,  4  Porter,  234.  If  any 
portion  of  a  can-ier's  route  is  attended 
with  peculiar  danj^jer,  he  is  bound  to  give 
his  passengers  notice  thereof.  Thus,  in 
Laing  v.  Colder,  8  Barr,  479,  which  was 
an  action  on  the  case  for  negligence, 
whereby  the  plaintiff's  arm  was  broken 
whilst  he  was  travelling  in  the  railroad  car 
of  the  defendants,  it  appeared  that  the  ac- 
cident occurred  whilst  the  car  was  passing 
over  a  bridge,  which  was  so  narrow  that 
the  plaintiff's  hand,  lying  outside  of  the 
car-window,  was  caught  by  the  bridge  and 
his  arm  broken.  Tiie  defendants  gave 
evidence  to  show  that  during  the  journey 
warning  had  been  given  by  their  agent  to 
a  passenger  named  Long,  of  the  danger  of 
putting  his  feet  or  arms  out  of  the  window, 
and  that  he  sat  so  near  the  plaintiff  that 
the  warnings  must  have  been  lieard  by  the 
latter.  They  also  proved  that  jjrinted 
notices  were  put  up  in  the  cars  warning 
passengers  not  to  put  their  arms  or  heads 
outside  the  windows,  and  lliat,  immedi- 
ately before  reaching  the  bridge,  notice 
was  given  in  a  loud  voice  for  the  passen- 
gei"s  to  keep  their  heads  and  arms  inside 
the  car.  Upon  this  evidence  Khired,  P.  J., 
instructed  tlie  jury,'"  that  a  carrier  of  pas- 
sengers was  I)ound  to  furnish  suitable  con- 
veyances, such  as  with  due  care  and  proper 
attention  would  carry  passengers  safely, 
unless  interrupted  by  some  accident  which 
no  human  wisdom  could  foresee.  That 
he  must  give  notice  of  approaching  dan- 
ger, or  of  the  dangerous  places  on  the 
route,  if  some  are  more  dangerous  than 
others.  This  notice  must  be  full  and 
comi»lete  to  all  persons  who  travel,  whether 
learned  or  unlearned.  The  slightest  neg- 
ligence in  any  of  these  particulai-s  makes 
him  liable  for  all  damages.  That  in  the 
jiresent  case,  the  presumption  was  there 
had  been  negligence,  and  it  was  for  the  de- 
fendants to  show  they  liad  done  every 
thing  in  their  power  to  relieve  themselves, 
or  that  it  resulted  from  the  ])laintiff 's  neg- 
ligence and  folly.  That  a  printed  notice 
of  the  danger  of  passengers  putting  their 
hands  out  of  the  windiiws  was  not  sulli- 
cient ;    but   if    they   had  given    plaintiff 

•  VOL.   1.  Gl 


sufficient  warning  as  they  approached  the 
bridge,  this  would  discharge  them."  The 
case  was  carried  uj)  to  the  Supreme  Court 
of  Pennsylvania,  and  that  court  held  the 
instruction  to  be  correct.  BM,  J.,  in  de- 
livering the  judgment  said :  "  It  is  long 
since  settled,  that  the  common  law  respon- 
sibilities that  attach  to  carriers  of  goods 
for  hire,  do  not,  as  a  whole,  extend  to 
passenger  earners.  Like  the  former,  the 
latter  are  not  insurers  against  all  such  ac- 
cidents and  injuries  as  are  not  occasioned 
by  the  act  of  God  or  the  public  enemy. 
But  though  in  legal  contemjilation  they 
do  not  warrant  the  absolute  safety  of  their 
passengers,  they  are  yet  bound  to  the  exer- 
cise of  the  utmost  degree  of  diligence  and 
care.  The  slightest  neglect  against  which 
human  prudence  and  foresight  may  guard, 
and  by  which  hurt  or  loss  is  occasioned, 
will  render  them  liable  to  answer  in  dam- 
ages. Nay,  the  mere  happening  of  an 
injurious  accident,  raises  prima,  facie,  a 
presumption  of  neglect,  and  throws  upon 
the  carrier  the  onus  of  showing  it  did  not 
exist.  This  punctilious  attention  to  the 
safety  of  the  passenger  embraces  the  duty 
of  providing  strong  and  sufficient  car- 
riages, or  other  conveyances  for  the  jour- 
ney, in  every  respect,  sea,  road,  and  river- 
worthy,  safe  and  steady  horses,  or  other 
means  of  ])rogression  ;  and  skilful  drivers, 
conductors,  and  other  agents,  whose  duty 
it  is  to  use  every  precaution  against  dan- 
ger. Should  there  be  the  least  failure  in 
any  of  these  things,  the  proprietors  have 
failed  of  the  discharge  of  their  legal  obli- 
gations. Above  all,  if  there  be  in  any 
part  of  the  road  a  ])articular  ])assage  more 
than  ordinarily  dangerous,  or  requiring 
superior  circumspection  on  the  part  of  the 
passenger,  the  conductor  of  the  vehicle  is 
bound  to  give  due  notice  of  it,  and  a  fail- 
ure to  do  so  will  make  his  principal  re- 
sponsible. Were  these  i)rinci|)les  suffi- 
ciently indicated  to  the  jury  by  the  charge 
of  the  court  '.  It  is  imjiossible  to  read  it 
and  not  perceive  the  sedulous  anxiety  with 
which  the  court  repeatedly  jjressed  on  the 
juiy  the  extreme  care  and  watchfulness 
the  law  exacts  at  the  hands  of  a  carrier  of 
persons.  'J'he  instruction  n])oti  this  liead 
was  not  only  cm])hatically  given,  liut  re- 
peate<l  so  that  men  of  ordinary  intelligence 
could  not  fail  to  be  impressed  with  it." 
See  also,  Dudley  i-.  Smith,  1  Camp.  107  ; 
Derwort  t>.  Loonier,  21  Conn.  24,') ;  Maurv 
1-.  Talmadge,    2    McLean,    157.      So,    If 

[721] 


695* 


THE  LAW   OF  CONTRACTS. 


[book   III. 


liable  for  any  negligence,  (ww)     *The  reason  of  the  difference 
between  his  liability  as  to  passengers,  and  as  to  goods,  is  this. 


through  the  default  of  a  coach-proprietor 
in  neglecting  to  provide  proper  means  of 
conveyance,  a  passenger  be  placed  in  so 
perilous  a  situation  as  to  render  it  prudent 
for  him  to  leap  from  the  coach,  whereby 
his  leg  is  broken,  the  proprietor  will  be  re- 
sponsible in  damages  although  the  coach 
Avas   not  actually   overturned.     Jones   v. 
Boyce,  1  Stark.  493.    This  case  was  much 
considered  in  Stokes  v.  Saltonstall,  13  Pet. 
181,  and  the  doctrine  it  contains  fully  con- 
firmed.     Sec   also   to   the    same    effect, 
Ingalls  V.  Bills,  9   Met.  1  ;   Eldridgc   v. 
Long  Island   Kailroad   Co.  1   Sandf.  87. 
As  to  what  will  constitute  that  degree  of 
negligence  for  which  a  carrier  of  passen- 
gers will  be  held  liable,  it  must  of  course 
depend  upon  the   circumstances  of  each 
case  ;  and  is  principally  a  question  of  fact 
for  the  jury,  with  proper  instructions  from 
the   court.     See  Derwort   v.   Loonier,  21 
Conn.  245.     In  Crofts  r.  Waterhouse,  3 
Bing.  319,   the   driver  of  a  stage-coach 
gathered   a  bank,  and   upset   the   coach. 
He  had  passed  the  spot  where  the  accident 
happened  twelve  hours  before,  but  in  the 
interval  a  landmark  had  been  removed. 
In   an   action  for  an  injury  sustained  by 
this  accident,  LiltJedale,  J.,  before  whom 
tlic  cause  was  tried,  told  the  jury,  that  as 
there  was  no  obstruction  in  the  road,  the 
driver  ought  to  have  kept  within  the  limits 
of  it ;  and  that  the  accident  having  been 
occasioned  by  his  deviation,  the  plaintiff 
was  entitled  to  a  verdict.     A  verdict  hav- 
ing been  returned  accordingly,  the  Court 
of  Common  Pleas  granted  a  new  trial,  on 
tlie  ground  that  the  jury  should  have  been 
directed  to  consider  whether  or  not  the 
deviation  was   tlie    effect   of   negligence. 
And   per  Bvst,  C.  J. :    "  The   coachman 
was  bound  to  keep  in  the  road  if  he  could  ; 
and  the  jury  might,  from  his  having  gone 
out  of  the  road,  have  presumed  negligence, 
and  on  tliat  presumption  have  found  a  ver- 
dict  for   the    ])laintitr.     But   the    learned 
judge,  instead  of  leaving  it  to  the  jury  to 
liud  whether  tliere  was   any  negligence, 
told  them  that  the  coachman  having  gone 
out  of  tlie  road,  the  plaintiff  was  entitled 
to  a  verdict.     Tliis  action  cannot  be  main- 
tained unless  negligence  be  jirovcd ;    and 
whether  it  be  ])rovcd  or  not  is  lor  tlie  de- 
termination of  the  jury,  to  whom  in  this 
case  it  was  not  submitted." 

(mm)  This   question   arose   in  the  late 

[722] 


case  of  the  Philadelphia  &  Reading  Rail- 
road Co.  V.  Derby,  14  How.  468,  in  the 
Supreme  Court  of  the  United  States,  but 
was   not  decided.     The   court,   however, 
strongly  intimated  an  opinion  in  tlie  af- 
firmative.    The  circumstances  of  the  case 
were  these.     The  action  was  brought  to 
recover  damages  for  an  injury  sutl'ered  by 
the  plaintiff  on  the  railroad  of  the  defend- 
ants.    The  plaintiff  was  himself  a  stock- 
holder in   the  defendants'  railroad  com- 
pany, and  the  president  of  another.  He  was 
on  the  road  of  the  defendants  by  invitation 
of  the  president  of  the  company,  not  in  the 
usual  passenger  cars,  but  in  a  small  loco- 
motive car  used  for  the  convenience  of  the 
officers  of  the  company,  and  paid  no  fare 
for  his  transportation.     Tlic  injury  to  his 
person  was  occasioned  by  coming  into  col- 
lision with  a  locomotive  and  tender,  in  the 
charge  of  an  agent  or  servant  of  the  com- 
pany, which  was  on  the  same  track,  and 
moving   in   an   opposite   direction.     An- 
other agent  of  the  company,  in  the  exer- 
cise of  proper  care  and  caution,  had  given 
orders  to  keep  this  track  clear.  Tlie  driver 
of  the  colliding  engine  acted  in  disobedi- 
ence and  disregard  of  these  orders,  and 
thus  caused  the  collision.     The  court  be- 
low instructed  the  jury,  that  if  tlie  plaintiff 
was  lawfully  on  the  road  at  the  time  of 
the  collision,  and  the  collision  and  conse- 
quent injuries  to  him  were  caused  by  the 
gross  nrtjilgence  of  one  of  the  servants  of 
the  defendants,  then  and  there  cm]iloyed 
on  the  road,  he  was   entitled  to  recover, 
notwithstanding  the  circumstances  given 
in  evidence,  and  relied  upon  by  the  de- 
fendants' counsel,  as  forming  a  defence  to 
the  action  ;  namely,  tliat  tlic  plaintiff  was 
a  stockholder  in  the  company,  riding  by 
the  invitation  of  the  president,  paying  no 
fare,  and  not  in  the  usual  passenger  cars, 
&c.    The  Supreme  Court  held  this  instruc- 
tion to  be  correct,  and  Grier,  J.,  in  speak- 
ing of  the   grounds  of  a   carrier's  duty, 
said  :   "  This  duty  does  not  result  alone 
from  the  consideration  paid  for  the  service. 
It  is  imposed  by  the  law,  even  where  the 
service   is   gratuitous.      '  The   confidence 
induced   by   undertaking  any  service  for 
another,  is  a  sufficient  legal  consideration 
to  create  a  duty  in  the  performance  of  it.' 
See  Coggs  v.  Bernard,  and  cases  cited  in 
1  Smith's  Leading  Cases,  95.     It  is  true 
a  distinction  has  been  taken  in  some  cases 


CH.    XII.] 


BAILMENT. 


-695 


The  carrier  of  goods  has  absolute  control  over  them  while  they 
are  in  his  hands;  he  can  fasten  them  with  ropes,  or  box  them 
up,  or  put  them  under  lock  and  key.  But  the  carrier  of  passen- 
gers must  leave  to  them  some  power  of  self-direction,  some  free- 
dom of  motion,  some  care  of  themselves.  It  would  be  wrong, 
therefore,  to  hold  him  to  as  absolute  a  responsibility  as  in  the 
case  of  goods.  But  still  the  policy  of  law  applies  to  the  carrier 
of  passengers  as  to  the  carriers  of  goods.  It  admits  only  so 
much  mitigation  of  the  rule,  as  that  he  is  liable  only  when  he  is 
guilty  of  negligence ;  but  if  in  the  least  degree  negligent,  he  is 
liable,  because  the  law  holds  him  to  do  all  that  care  and  skill 
can  do  for  the  safety  of  his  passengers.  Only  when  all  this  is 
done,  and  he  can  show  that  the  injury  complained  of  is  not  to 
be  attributed  to  any  default  whatever  on  his  part,  or  on  the  part 
of  any  one  for  whom  he  is  responsible,  is  he  discharged  from 
his  liability.  It  seems  to  have  been  held  decidedly,  that  the 
onus,  to  prove  that  he  is  not  in  fault,  rests  on  him.  (n)     Some 


between  simple  negligence  and  great  or 
gross  negligence,  and  it  is  said  that  one 
who  acts  gratuitously  is  liable  only  for  the 
latter.  But  this  case  docs  not  call  upon 
us  to  define  tlie  dift'eronce,  (if  it  be  capalile 
of  definition,)  as  the  verdict  has  found  this 
to  be  a  case  of  gross  ncgligeucc.  AVhcn 
carriers  undertake  to  convey  persons  by 
the  powerful  but  dangerous  agency  of 
steam,  ])ulilic  ])olicy  and  safety  recjuire 
that  they  be  held  to  the  greatest  .possiI)le 
care  and  diligence.  And  whether  tlic  con- 
sideration for  such  trans])ortation  be  pecun- 
iary or  otherwise,  the  personal  safety  of 
tlic  jtasscngers  should  not  be  left  to  the 
spoit  of  chance  or  the  negligence  of  care- 
less iigcnts.  Any  negligence  in  such  cases 
may  well  deserve  the  ejiithet  of  'gross.'" 
And  tlie  doctrine  laid  down  in  that  case 
was  reatlii  ined  as  not  only  resting  on  pub- 
lic i)olicv,  buton'souiul  prim-iple  in  Steam- 
boat New  World  r.  King,  IG  Howard,  S. 
C.  4G9.  But  sec  Boyce  v.  Anderson,  2 
Tet.  150,  156,  whei-e"  it  is  said  that  the 
carrier  of  a  slave  without  reward  would 
be  liable  only  for  gross  negligence.  Sec 
also,  Williams  r.  Tavlor,  4  I'orter,  2.34.  In 
Fay  r.  Steamer  New  World,  1  Calaf  .'348, 
it  was  decided  that  a  common  carrier 
transporting  gold  dust  gratuitously  was 
not  liable  in  case  of  loss,  unless  negligent, 
(n)  Christie   v.    Griggs,   2    Camp.    79. 


This  was  an  action  of  assumpsit  against 
the  defendant  as  owner  of  the  Blaekwall 
stage,  on  which  the  jdaintiff,  a  jnlot,  was 
travelling  to  London,  when  it  broke  down 
and  he  was  greatly  l)ruised.  Tlic  tirst 
count  imputed  the  accident  to  the  negli- 
gence of  the  driver;  the  second,  to  the  in- 
suftieiency  of  the  axletree  of  the  carriage. 
The  jilaintiff  having  proved  tliat  the  a.xle- 
tree  snapped  asunder  at  a  place  where 
tliere  was  a  slight  descent,  from  the  ken- 
nel crossing  the  road  ;  that  he  was  in  con- 
sequence precipitated  from  the  top  of  the 
coach  ;  and  that  the  bruises  he  received 
confined  him  several  weeks  to  his  bed, 
there  rested  his  case.  Best,  Sergeant, 
contended  strenuou^^ly  that  the  plaintift' 
was  Iiound  to  proceed  further,  and  give 
evidence,  either  of  the  driver  being  unskil- 
ful, or  of  the  coach  being  insufficient. 
But  per  Mansfield,  C.  J. :  "I  think  tlie 
plaintiff  has  made  a  jirimu  fucie  case  by 
proving  his  going  on  the  coach,  tlie  acci- 
dent, and  the  damage  he  has  suffered.  It 
now  lies  on  tiie  other  side  to  show  that  the 
coach  was  as  good  a  coach  as  could  be 
nuiile,  and  tiiat  the  driver  was  as  skilful  a 
driver  as  could  anywhere  be  found.  What 
other  evidence  can  the  plaintiff  give  ?  The 
passengers  were  ])ro!)ably  all  sailors  like 
himself;  and  how  do  they  know  whether 
the  coach  was  well  Iniiit  or  whether  the 

[7231 


696*-697* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


question,  however,  may  exist  on  this  point.  We  should  express 
our  own  view  of  the  law  thus.  The  plaintiff  must  not  prove 
merely  that  he  has  sustained  injury ;  but  must  go  so  much  fur- 
ther as  to  show  that  he  suffered  from  such  accident,  or  from 
such  other  cause  as  may  with  reasonable  probability  be  attrib- 
uted to  the  neo^liojence  of  the  defendants.  Thus  far  the  onus  is 
on  the  plaintiff.  But  then  it  shifts,  and  the  defendants  must 
prove  an  absence  of  negligence  or  of  default  on  his  part.  And  if 
the  plaintiff  has  made  out  his  primd  facie  case,  and  the  evi- 
dence offered  in  defence  leaves  it  uncertain  whether  there  was 
negligence  or  not,  the  plaintiff  must  prevail,  (mi) 

*It  is  his  duty  to  receive  all  passengers  who  offer ;  (o)  to  *carry 


coachman  drove  skilfully?  In  many 
other  cases  of  this  sort  it  must  he  equally 
impossihle  for  the  plauUiff  to  ^ive  the  evi- 
dence required.  But  when  the  hreaking 
down  or  overturning  of  a  coach  is  proved, 
negligence  on  the  part  of  the  owner  is  im- 
plied. He  has  always  the  means  to  rebut 
this  presumption,  if  it  be  unfounded,  and 
it  is  now  incumbent  on  the  defendant  to 
make  out,  that  the  damage  in  this  case 
arose  from  what  the  law  considers  a  mere 
accident."  The  same  point  was  ruled  by 
Lord  Denman  at  Nisi  Prius,  in  Carpuo  v. 
The  L.  &  13.  Railway  Co.,  5  Q.  13.  747 ; 
it  was  decided  by  the  Court  of  Exchequer 
in  Skinner  v.  London,  Brighton,  and 
South-coast  Railway  Co.  2  E.  L.  &  E. 
360,  and  has  been  repeatedly  confirmed  in 
this  country.  Thus,  in  Ware  v.  Gay,  11 
Pick.  106,  it  was  held,  that  if  in  an  action 
by  a  passenger  against  the  proprietors  of  a 
stage-coach,  for  an  injury  occasioned  by 
the  insufficiency  of  the  coach,  the  plaintiff 
proves  that  while  the  coach  was  driven  at 
a  moderate  rate  upon  a  plain  and  level 
road,  without  coming  in  contact  with  any 
other  object,  one  of  tlic  wheels  came  off 
and  the  coach  overset,  whereby  the  ]3lain- 
tiff  was  hurt,  the  law  will  imply  negli- 
gence, and  the  burden  of  proof  will  rest 
upon  the  defendants  to  rebut  this  legal  in- 
ference, by  showing  that  the  coach  was 
properly  fitted  out  and  provided.  To  the 
same  effect  are  Stokes  v.  Saitonstall,  13 
Pet.  181  ;  Stockton  v.  Frey,  4  Gill,  406; 
McKcmicy  v.  Neil,  1  McLean,  540 ;  Par- 
ish V.  Reigle,  1 1  Grattan,  697. 

{nn)   We   consider  that   the   view  ex- 
pressed in  the  text  accords  with  the  recent 

[724] 


case   of  liolbrook  v.  The  Utica  &  Sche- 
nectady R.  R.  Co.,  2  Kernan,  236. 

(o)  iiennett  v.  Button,  10  N.  H.  481 ; 
Jencks  v.  Coleman,  2  Sumn.  221.  This 
question  was  much  discussed  in  Ben- 
nett r.  The  P.  &  0.  Steamboat  Co.  6  C. 
B.  775,  but  the  case  went  off  finally  on  a 
question  of  pleading.  —  This  obligation  of 
the  passenger  carrier  is,  however,  subject 
to  some  limitation.  Thus,  he  may  right- 
fully exclude  all  persons  of  bad  character 
or  habits  ;  all  whose  objects  are  to  inter- 
fere in  any  way  with  his  interests,  or  to 
disturb  his  line  of  patronage  ;  and  all  who 
refuse  to  obey  the  reasonable  regulations 
which  are  made  for  the  government  of  the 
line ;  and  he  may  rightfully  inquire  into 
the  habits  or  motives  of  passengers  who 
offer  themselves.  Jencks  v.  Coleman,  2 
Sumn.  221.  This  was  an  action  against 
the  projn'ietor  of  a  steamboat,  running 
from  New  York  to  Providence,  for  refus- 
ing to  receive  the  plaintiff  on  board  as  a 
passenger.  The  plaintiff  was  the  known 
agent  of  the  Treraont  line  of  stage-coaches. 
Tbe  propi-ietors  of  the  steamboats  Presi- 
dent and  Benjamin  Franklin  had,  as  the 
plaintift'knew,  entered  into  a  contract  with 
another  line  called  the  Citizens'  Stage- 
coach Company,  to  carry  passengers  be- 
tween Boston  and  Providence,  in  connec- 
tion with  the  boats.  The  plaintiff  had 
been  in  the  habit  of  coming  on  board  the 
steamboats  at  Providence  and  Newport, 
for  the  purpose  of  soliciting  passengers  for 
the  Tremont  line,  which  the  proprietors  of 
the  President  and  Benjamin  Franklin  had 
prohibited.  It  was  licld  that  if  the  jury 
should  be  of  opinion  that  the  above  con- 


en.  xir.] 


BAILMENT. 


-697 


them  the  whole  route  ;  (p)  to  demand  no   more  than  the  usual 
and  established  compensation  ;  to  treat  all  his  passengers  alike  ; 


tract  was  reasonable  cindliondjidi',  and  not 
entered  into  for  the  purpose  oF  an  opjjrcs- 
sivc  niono])oly,  and  tliat  the  cxchision  of 
the  phiintirt'was  a  reasonable  regulation  in 
order  to  earry  this  contract  into  effect,  tiie 
proprietors  of  the  steamboat  would  be 
justified  in  refusing  to  take  the  plaintiff  on 
board.  Story,  J.,  said :  "  The  right  of 
passengers  to  a  passage  on  board  of  a 
steamboat  is  not  an  unlimited  right.  But 
it  is  subject  to  such  reasonable  regulations 
as  the  ])ro])rietors  nniy  prescribe  for  the 
due  accommodation  of  jjassengers,  and  for 
the  due  arrangement  of  tlieir  business. 
The  ])ro])rietors  have  not  only  this  right, 
but  the  further  right  to  consult  and  ])ro- 
vide  for  their  own  interests  in  the  manage- 
ment of  such  iioats,  as  a  common  incident 
to  their  right  of  property.  They  arc  not 
bound  to  admit  passengers  on  l)oard,  wlio 
refuse  to  obey  the  reasointble  regulations 
of  the  iioat,  or  who  are  guilty  of  gross  and 
vulgar  habits  of  conduct;  or  who  make 
disturbances  on  I)oard,  or  whose  characters 
are  doubtful,  or  dissolute,  or  suspicious  ; 
and  a  for/iori  whose  characters  are  un- 
equivocally bad.  Nor  arc  they  bound  to 
admit  passengers  on  board,  whose  object 
is  to  interfere  witii  the  interests  or  patron- 
age of  tiie  projjrictors  so  as  to  make  tiie 
business  less  lucrative  to  them."  So  in 
Connnomvealth  r.  Power,  7  Met.  .590,  it 
was  held  that  if  an  innkeeper,  who  has 
frequently  entered  a  railroad  dejjot  and 
annoyed  passengers  by  soliciting  them  to 
go  to  his  inn,  receives  notice  from  the 
superintendent  of  tiic  dejiot  that  he  must  do 
so  no  more,  and  he  nevertiielessrejieatedly 
enti-rs  the  de])Ot  for  tlie  same  iiurjiose, 
and  afterwards  obtains  ;i  ticket  for  a  pas- 
sage in  the  cars  with  a  bond  Jide  inten- 
tion of  entering  the  cars  as  a  passen- 
ger, and  goes  into  the  depot  on  his  way  to 
the  cars,  and  tiie  superintendent,  l)elieving 
that  he  had  entered  the  depot  to  solicit 
passengers,  orders  him  to  go  out,  and  he 
does  not  exhibit  his  ticket  nor  give  notice 
of  his  real  intention,  but  presses  forward 
towards  the  cars,  and  the  superintendent 
and  his  assistants  thereupon  forcil)ly  re- 
move him  from  the  dei)ot,  using  no  more 
force  than  is  necessary  for  that  jiiirpuse, 
such  removal  is  justiliable,  ami  not  an 
indictal)ie  assault  and  battery.  Hut  in 
Bennett  r.  Dutton,  10  N.  H."  481,  it  was 
//(/(/  tliat  the  pr()])rietors  of  a  stage-coacli, 
who  hold  themselves  out  as  common  car- 

61* 


riers  of  passengers,  arc  bound  to  receive 
all  who  require  a  passage,  so  long  as  they 
have  room,  and  there  is  no  legal  excuse 
for  a  refusal ;  and  that  it  was  not  a  lawful 
excuse  that  they  ran  their  coach  in  connec- 
tion with  another  coach,  which  extended 
the  line  to  a  certain  jilace,  and  iiad  agreed 
with  the  proprietor  of  such  other  coach 
not  to  receive  passengers  who  came  from 
that  place  on  certain  days,  unless  they 
came  in  his  coach.  Tlie  defendant  was 
one  of  the  pro])rietors  and  the  driver  of  a 
stage-coach  running  daily  between  Am- 
herst and  Nashua,  which' connected  at  the 
latter  place  with  another  coach,  running 
between  Nashua  and  Lowell,  and  thus 
forms  a  continuous  mail  and  jiassenger 
line  from  Lowell  to  Andicrst  and  onward 
to  Francestown.  A  third  person  r;ux  a 
coach  to  and  from  Nashua  and  Lowell, 
and  the  defendant  agreed  with  tiie  proprie- 
tor of  the  coach  connecting  with  his  line, 
that  he  would  not  receive  passengers  who 
came  from  Lowell  to  Nashua  in  the  coach 
of  such  third  person  on  the  same  day  that 
they  applied  for  passage  to  ]>laces  above 
Nashua.  The  jdaintiff  was  notilicd  at 
Lowell  of  this  arrangement,  but  notwith- 
standing came  from  l/owell  to  Nashua  in 
that  coach,  and  then  demanded  a  ])assage 
in  tlie  defendants'  coach  to  Amherst,  ten- 
dering the  regular  fare.  Ifdd,  that  tiie  de- 
fendant was  bound  to  receive  him,  there 
Iteing  sutHcient  room,  and  no  evidence 
that  the  j)laintiff  was  an  unfit  person  to  be 
admitted,  or  that  he  had  any  design  of  in- 
juring the  defendant'^  business. 

(/*)  Dudley  r.  Smith,  1  Camji.  167. 
In  this  case  tiie  ]ilaiiitifi'took  a  seat  on  the 
outside  of  the  defendants'  coach  to  be  con- 
veyed from  a  place  called  the  Red  Lion, 
in  the  Strand,  to  Chelsea.  It  ajipearcd 
that  siie  was  so  conveyed  safely  as  far  as 
tlie  Cross  Keys  Inn,  at  Chelsea,  where  the 
coach  was  accustomed  to  stop.  When  the 
coach  arrived  i)cfore  the  gateway  of  this 
inn,  leading  to  the  stable-yard,  the  coach- 
man recpiested  the  plaintiff  to  alight  there, 
as  the  passage  into  tiie  yard  was  rcn/  nwh- 
ivard.  She  said,  as  the  road  was  ilirty, 
she  would  rather  be  driven  into  the  yard. 
He  then  advised  her  to  stoop,  and  drove 
on.  The  consecpicnce  was,  that  she  was 
struck  violently  on  the  shoulders  and  i>aek 
by  a  low  archway  in  the  passage,  by  which 
she  was  severely  injured.  It  appeared 
in  evidence  that  the  archwav  was   only 

[725] 


i 


698*-699* 


THE   LAW    OF   CONTRACTS. 


[eOOK  III. 


to  behave  to  all  with  civility  and  propriety ;  (q)  *to  provide  suit- 
able carriages  and  means  of  transport;  (r)  to  *niaintain  a  rea- 


twelvc  inches  higher  than  the  top  of  the 
coach.  Upon  tliis  evidence,  Lord  Ellen- 
borough,  in  summing  up  to  tlie  jury,  said  : 
"  Tlic  defendant  was  bound  to  cany  the 
ph^intiif  from  the  usual  ]ilace  of  taking  up 
to  tlic  usual  place  of  setting  down.  As 
coacli  owner,  therefore,  he  was  answerable 
for  the  negligent  acts  of  his  sei'vant,  till 
the  plaintiff  was  set  down  at  the  usual 
place  for  passengers  alighting  at  Chelsea. 
This  appears,  for  the  inside  passengers  at 
least,  to  have  been  the  yard.  If  the  coach- 
man had  said  to  her,  '  the  others  will  be 
safe  in  proceeding,  but  you  must  go  down 
here,  as  j'ou  cannot  remain  upon  the  coach 
without  danger  to  your  life,'  she  could 
only  have  blamed  her  own  imprudence  for 
what  followed.  But  he  should  have  given 
her  the  materials  to  judge,  if  he  was  to 
leave  her  to  make  her  election.  He  told 
her  the  passage  was  awkward  ;  whereas, 
according  to  the  evidence  it  was  imprac- 
ticable." See  also,  Massiter  v.  Cooper,  4 
Esp.  260.  In  Coppin  v.  Braithwaite,  8 
Jur.  875,  it  is  said  to  have  been  ruled  by 
Rolfe,  B.,  at  Nisi  Priiitt,  that  a  carrier  hav- 
ing received  a  pickpocket,  as  a  passenger, 
on  board  his  vessel  and  taken  his  fare,  he 
cannot  ])ut  him  on  shore  at  an  intermedi- 
ate place,  so  long  as  he  is  not  guilty  of 
any  im])ropricty.  But  see  preceding  note. 
—  In  Ker  v.  INlountain,  1  Esp.  27,  it  was 
ruled  b}-  Lord  Kcnijon,  that  if  a  person  en- 
gages a  seat  in  a  stage-coach,  and  pays  at 
the  same  time  only  a  deposit,  as  half  the 
fare  for  example,  and  is  not  at  the  inn 
ready  to  take  his  scat  when  the  coach  is 
setting  o^',  the  proprietor  of  the  coach  is  at 
liberty  to  fill  up  his  place  with  another 
passenger;  but  if,  at  the  time  of  engaging 
his  seat,  he  pays  the  whole  of  the  fare,  in 
such  case  the  proprietor  cannot  dispose  of 
his  place,  but  he  may  take  it  at  any  stage 
of  the  journey  that  he  thinks  fit. 

(q)  Chaniljerlain  v.  Chandler,  3  Ma- 
son, 242. 

(?•)  Christie  v.  Griggs,  2  Camp.  79 ; 
Curtis  V.  Drinkwater,  2  B.  &  Ad.  169; 
Bremner  v.  Williams,  1  C.  &  P.  414  ;  Is- 
rael V.  Clark,  4  Esp.  259  ;  Crofts  v.  Water- 
house,  3  Bing.  319  ;  Sharp  i\  Grey,  9  Bing. 
457.  An  opinion  seems  to  be  intimated 
in  several  of  the  cases  that  the  carrier  is 
bound  to  warrant  the  sufficiency  of  his 
coach.  Thus  in  Israel  v.  Clark,  4  Esp. 
259,  Lord  Ei/cnborourjh  is  reported  to  have 
said  that  carriers  were  bound  by  law  to 

[726] 


provide  sufficient  carriages  for  the  safe 
conveyance  of  the  public  who  had  occasion 
to  travel  l)y  them  ;  and  that  at  all  events 
he  should  expect  a  clear  landworthiness  in 
the  carriage  to  be  established.  So  in 
Bremner  v.  Williams,  1  C.  &  P.  414,  Best, 
C.  J.,  says  he  considers  that  every  coach- 
proprietor  ivarrants  to  the  public  that  his 
stage-coach  is  equal  to  tiie  journey  it  un- 
dertakes. And  finally  in  Sharj)  v.  Grey, 
9  Bing.  457,  Bosanquet,  J.,  says  that  if  a 
coach,  when  it  starts  upon  its  journey,  is 
not  roadworthi/,  the  proprietor  is  liable  for 
the  consequences  upon  the  same  principle 
as  a  ship-owner  who  furnishes  a  vessel 
which  is  not  seaworthy.  And  in  Benett 
V.  The  P.  &  0.  Steamboat  Comjxiny,  6  C. 
B.  775,  782,  upon  Sharp  v.  Grey,  being 
cited  by  Sir  John  Jervis,  attorney -general, 
who  said  it  decided,  in  substance,  that  a 
coach-proprietor  is  bound  to  use  all  ordi- 
nary care  and  diligence  to  provide  a  safe 
A'chiele,  Cressicell,  J.,  interrupting  him, 
said  :  "It  goes  a  little  further  tlian  that; 
it  lays  down  that  he  is  bound  at  all  events 
to  provide  a  sound  coach."  But  the  con- 
trary doctrine  was  ruled  in  Christie  v. 
Griggs,  2  Camp.  79,  by  Sir  James  Alans- 
field,  who  held  that  only  the  same  meas- 
ure of  diligence  was  required  of  a  passen- 
ger carrier  in  the  construction  and  care  of 
his  coach,  as  in  all  other  matters  apper- 
taining to  the  conveyance  of  his  passen- 
gers. See  the  case  stated  with  the  learned 
judge's  opinion,  ante,  p.  691,  n.  (m).  And 
the  doctrine  of  this  case  was  clearly 
establislied  as  the  law  in  this  country  by 
the  case  of  Ingalls  v.  Bills,  9  Met.  1. 
That  was  an  action  to  recover  damages 
for  an  injurv  received  by  the  ]jlaintift' from 
a  defect  in  the  defendants'  coach.  The 
defendants  introduced  evidence  tending  to 
prove  that  they  had  taken  all  possible  care, 
and  incurred  extraordinary  expense,  in 
order  that  the  coach  should  be  of  the  best 
materials  and  workmanship ;  that  at  the 
time  of  the  accident,  the  coach,  so  far  as 
could  be  discovered  from  the  most  careful 
inspection  and  examination  externally, 
was  strong,  sound,  and  sufficient  for  the 
journey;  and  that  they  had  imiformly 
exercised  the  utmost  vigilance  and  care  to 
preserve  and  keep  the  same  in  a  safe  and 
roadworthy  condition.  But  the  evidence 
further  tended  to  prove  that  there  was  an 
internal  defect  or  flaw  in  the  iron  of  the 
axletrce,  at  the  place  whei-e  it  was  broken, 


en.  XII.] 


BAILMENT. 


699 


sonable  degree  of  speed  ;  (s)  and  to   have  servants  and  agents 
competent  to  their  several  employments,  and   for  the  default  of 


about  three  ei^litlis  of  an  inch  in  length, 
and  wide  enoiijih  to  insert  the  point  of  a 
fine  needle  or  ])in ;  wliieh  defect  or  flaw 
appeared  to  have  arisen  from  the  forixing 
of  the  iron,  and  which  might  have  been 
the  cause  of  the  breaking ;  that  the  said 
defect  was  entirely  surrounded  by  sound 
iron  one  quarter  of  an  inch  thick ;  and 
that  tiie  ilaw  or  defect  could  not  possibly 
have  been  discovered  by  inspection  and 
examination  externally.  The  learned 
judge,  before  whom  the  cause  was  tried, 
instructed  the  jury  that  tlie  defendants 
were  bound  by  law,  and  an  implied  prom- 
ise on  their  ]>art,  to  provide  a  coach,  not 
only  a]iparcntly,  but  really,  roadworthy  ; 
that  they  were  liable  for  any  injury  that 
might  arise  to  a  passenger  from  a  defect 
in  the  original  construction  of  the  coach, 
although  the  imperfection  was  not  visible, 
and  could  not  be  discovered  upon  inspec- 
tion and  examination.  The  defenilant 
exce])tcd  and  moved  for  a  new  trial,  wliich 
was  granted.  Hubbard,  J.,  after  a  very 
thorough  and  able  examination  of  the 
cases,  concluded  liis  ojtinion  thus  :  "The 
result  to  whicii  we  have  arrived,  from  the 
cxamimition  of  the  case  before  us,  is  this  : 
That  carriers  of  ])asscngers  for  hire  arc 
bound  to  use  the  utmost  care  and  diligence 
in  the  providing  of  safe,  sufficient,  and  suit- 
able coaches,  harnesses,  horses,  and  coach- 
men, in  order  to  prevent  those  injuries 
which  human  care  and  foresight  can  guard 
against ;  and  that  if  an  accident  happens 
from  a  defect  in  the  coach,  which  nngiit 
have  been  discovered  and  remedied  upon 
the  most  careful  and  thorough  examina- 
tion of  the  coach,  such  accident  must  be 
ascrii)ed  to  negligence,  for  which  the 
owner  is  lialdc  in  case  of  injury  to  a  pas- 
senger hajipcning  by  reason  of  such  acci- 
dent. On  the  other  hand,  where  the 
accident  arises  from  a  hidden  and  inicrnal 
defect,  whicii  a  careful  and  thorough  ex- 
amination would  not  disclose,  and  wliich 
could  not  be  guarded  against  by  the  exer- 
cise of  a  sound  judgment  ancl  tlie  most 
vigilant  oversight,  then  the  projjrietor  is 
not  liable  for  the  injury,  but  the  misfor- 
tune n\w<t  be  iiornc  liy  the  sutVcrer,  as  (ine 
of  that  class  of  injuries  for  whicii  the  law 
can  aflbrd   no  redress  in  the  form  of  a 


pecuniai-y  recompense."  Such  also  would 
seem,  from  the  late  case  of  Grote  v.  The 
C.  &  H.  Railway  Company,  2  Exch.  251, 
to  be  the  doctrine  now  lield  in  England. 
That  was  an  action  against  a  railway 
company  to  recover  comj)ensation  for  an 
injury  received  by  the  plaintiff  by  the 
breaking  down  of  a  bridge,  over  which  he 
was  ]iassing  in  a  passenger  train.  It  ap- 
peared at  the  trial  that  tlie  services  of  an 
eminent  engineer  had  been  en;:aged  in  the 
construction  of  the  work.  Williams,  J., 
before  whom  the  cause  was  tried,  told  the 
jury  that  the  question  was,  whether  the 
hf-idge  was  constructed  and  maintained 
with  sufficient  care  and  skill,  and  of  rcason- 
al)ly  jn-oper  strength  with  regard  to  the 
purposes  for  which  it  was  made ;  and  that, 
if  they  should  tliink  not,  and  that  the  ac- 
cident was  attributable  to  any  such  defi- 
ciency, the  plaintiff  would  be  entitled  to 
recover.  The  counsel  for  tlie  dei'endants 
objected,  that  the  defendants  would  not  be 
liable  unless  they  had  been  guilty  of  neg- 
ligence either  in  constructing  or  maintain- 
ing the  bridge.  His  lordship,  however, 
left  the  ([uestion  to  the  jury,  sulyect  to  his 
previous  direction.  Ujion  an  ajiplication 
to  the  Court  of  Exche(iii.er  for  a  new  trial. 
Pollock,  C.  13.,  said :  "  It  does  not  at 
j)resent  distinctly  appear  whether  or  not 
the  attention  of  the  jury  was  directed  to 
the  ])roi)osition  that  if  a  party  in  the  same 
situation  as  that  in  whicii  the  defendants 
are,  employ  a  person  who  is  fully  compe- 
tent to  the  work,  and  the  best  metiiod  is 
adopted  and  the  best  materials  are  used, 
such  ]iarty  is  not  liable  for  the  accident. 
Jf  the  jury  have  been  directed  in  con- 
formity with  this  rule,  there  is  no  ground 
for  the  present  ai)|dicatioii.  It  cannot  be 
contended  that  the  defendants  arc  not  re- 
sponsible for  tlie  accident  merely  on  the 
ground  that  tliey  liave  employed  a  compe- 
tent person  to  construct  the  liridge.  Upon 
this  point  we  will  consult  our  learned 
brother."  On  a  suiiscqucnt  day  the  Chief 
IJaron  said  that  they  had  consulted  the 
learned  judge,  who  reported  to  them  that 
he  had  directed  the  jury  in  conformity 
with  the  above  ])ropositioii,  and  that  there- 
fore there  wt)uld  be  no  rule.  This  case, 
however,  siiows  that  it  would  not  be  suffi- 


(s)  See  Mavor  r.  Humphries,  1  C.&.P.     C.  J.,  to  the   grand  jurv,  8  C.  &  P.  694, 
251  ;  Cari)ue  r.  The  L.  &  15.  Kailway  Co.     n.  (b). 
.")  Q.  B.  747.     See  also,  the  charge  of /ie^V, 

[727] 


700* 


THE   LAW   OF   CONTRACTS. 


[book  III. 


his  servants  or  agents,  in  any  of  the  above  particulars,  or  gener- 
ally, in  any  other  points  of  duty,  the  carrier  is  directly  respon- 
sible, (/)  And  he  is  liable  for  *tlie  acts  of  partners,  or  quasi  part- 
ners, in  the  same  manner  that  the  carrier  of  goods  is  liable,  (w) 

The  carrier,  whether  of  goods  or  passengers,  is  liable  for  an 
injury  to  strangers,  if  this  be  caused  by  the  negligence  of  the 
driver  or  conductor ;  [v)  as  if  he  runs  over  one,  or  otherwise  in- 


cicnt  to  exempt  a  coach-proprietor  from 
liability,  that  he  had  emplovcd  a  skilful 
workman  to  construct  his  coacli ;  it  must 
appear  that  it  was  actually  constructed 
with  all  possible  care  and  skill. — So  a  pas- 
senger carrier  will  be  held  to  the  greatest 
vigilance  in  examining  and  inspecting  his 
vehicles  from  time  to  time.  Tims,  in 
Bremner  r.  Williams,  1  C.  &  P.  414,  it 
was  ruled  ])y  Best,  C.  J.,  that  a  coach-pro- 
prietor ought  to  examine  the  sufficiency  of 
his  coach  jirevious  to  each  joui"ney  ;  and  if 
he  does  not,  and  by  the  insecurity  of  the 
coach  a  passenger  is  injured,  an  action  is 
maintainable  against  the  coach-proprietor 
for  negligence,  though  the  coach  had  been 
examined  previous  to  the  second  journey 
before  the  accident ;  and  though  it  had 
been  repaired  at  the  coach-maker's  only 
tlu'ee  or  four  days  before.  And  see  New 
Jersev  Kailroad  Company  v.  Kennard, 
21  Penn.  St.  Reps.  203. 

(t)  The  owner  is  liable  for  an  accident 
which  ha])pcns  from  the  driver's  intoxica- 
tion ;  but  not  if  from  his  physical  disabil- 
ity, arising  without  his  fault  from  extreme 
and  unusual  cold  which  rendered  him  in- 
cajiable  for  the  time  of  doing  his  duty. 
Stokes  V.  Saltonstall,  13  Peters,  181.  See 
also,  McKinney  v.  Neil,  1  McLean,  550 ; 
Peck  v..  Neil,  3  id.  24.  The  rule  stated  in 
the  text  received  a  very  strong  application 
in  the  late  case  of  JMcElroy  v.  Nashua 
&  Lowell  R.  R.  Corporation,  4  Cush.  400. 
It  was  an  action  on  the  case  to  recover 
damages  of  the  defendants  for  an  injury 
alleged  to  have  liccn  sustained  by  the 
female  plaintitl',  while  riding  as  a  passen- 
ger in  the  defendants'  cars  from  Lowell  to 
Nashua.  The  alleged  injury  happened 
in  consequence  of  the  careless  manage- 
ment of  a  switch,  by  which  the  Concord 
Railroad  connected  with  and  entered  upon 
the  defendants'  road.  Tlie  switch  was 
provided  l)y  the  proprietors  of  the  Concord 
Railroad,  and  attended  by  one  of  their  ser- 
vants, at  their  expense.  It  was  lidd  that 
the  defendants  were  liable.  And  Shaw, 
C.  J.,  said  :    "  The  court  are  of  opinion 

[728] 


upon  the  facts  agreed  that  the  defendants 
are  liable  to  the  plaintiflfs  for  the  damage 
sustained  by  the  wife  whilst  travelling  in 
their  cars.  As  passenger  carriers  the  de- 
fendants were  bound  to  the  most  exact 
care  and  diligence,  not  only  in  the  man- 
agement of  the  trains  and  cai«,  but  also 
in  the  structure  iind  care  of  the  track  and 
in  all  the  subsidiary  arrangements  neces- 
sary to  the  safety  of  passengers.  The 
wife  having  contracted  with  the  defendants 
and  paid  fare  to  them,  the  plaintitfs  had  a 
right  to  look  to  them,  in  the  first  instance, 
for  the  use  of  all  necessary  care  and  skill. 
The  switch  in  question,  in  the  careless  or 
^legligent  management  of  which  the  dam- 
age occurred,  was  a  part  of  the  defend- 
ants' road,  over  which  they  must  neces- 
sarily carry  all  their  passengers,  and  al- 
though provided  for,  and  attended  by,  a 
servant  of  the  Concord  Railroad  Corpora- 
tion, and  at  their  expense,  yet  it  was  still 
a  part  of  the  Nashua  &  Lowell  Railroad, 
and  it  was  within  the  scope  of  their  duty 
to  see  that  the  switch  was  rightly  con- 
structed, attended,  and  managed  before 
they  were  justified  in  carrying  passengers 
over  it."  See  also,  Nashville  &  C.  Rail- 
road Co.  V.  Messino,  1  Sneed,  220  ;  Grote 
V.  The  C.  &  H.  Railway  Co.  2  Exch.  251, 
cited  ante,  p.  699,  n.  (/•). 

(u)  Dwight  V.  Brewster,  1  Pick.  50; 
Champion  v.  Bostwick,  11  Wend.  571  ; 
18  id.  175;  Waland  v.  Elkins,  1  Stark. 
277  ;  Fromont  r.  Coupland,  9  Moore,  319  ; 
Cobb  V.  Abl)0t,  14  Pick.  289  ;  Wetmore 
V.  Baker,  9  Johns.  307  ;  Green  v.  Becslcy, 
2  Bing.  N.  C.  108;  Stockton  v.  Prey,  4 
Gill,  406. 

(«,-)  Stables  v.  Elev,  1  C.  &  P.  614; 
Sleath  v.  Wilson,  9  id.  607  ;  Joel  v.  Mori- 
son,  6  id.  501.  And  if  a  horse  and  cart 
are  left  in  the  street,  without  any  person 
to  watch  them,  the  owner  is  liable  for  any 
damage  done  by  them,  though  it  be  oc- 
casioned by  the  act  of  a  passer-by,  in 
striking  the  horse.  lUidge  v.  Goodwin,  5 
C.  &  P.  190.  See  also,  Lyncli  v.  Nurdin, 
1  Q.  B.  29. 


CH. 


XII.] 


BAILMENT. 


*701 


jures  him,  while  he  is  walking  on  a  public  w^ay.  (iv)  And 
where  such  an  injury  results  in  death,  if  an  action  is  given  by 
statute  to  the  personal  representatives  of  the  deceased,  the 
damages  therein  must  be  wholly  confined  to  pecuniary  injuries, 
and  will  not  extend  to  mental  sufl'ering  occasioned  to  the  sur- 
vivors, (ww)  Nor  is  it  a  defence  for  the  carrier  that  the  road  was 
out  of  order,  nor  that  the  reins  or  harness  broke,  for  he  should 
have  had  better  ones,  (x)  But  if  the  person  injured  in  some 
degree  caused  the  injury  by  his  own  negligence,  and  was  capa- 
ble of  ordinary  care  and  caution,  he  cannot  recover  damages, 
unless  the  negligence  of  the  party  who  did  the  injury  was  so 
extreme/as  to  imply  malice.  (//)     So  the  carrier  is  liable  for  in- 


(w)  Boss  V.  Litton,  5  C.  &  P.  407  ; 
Cottcrill  V.  Starkey,  8  id.  G91  ;  Iliiwkins 
V.  Cooper,  id.  473;  Wyun  v.  Allard,  5 
W.  &  S.  524. 

(ivw)  Blake,  Adm'x,  v.  Midland  Rail- 
way Co.  10  E.  L.  &  E.  437. 

(x)  Cottcrill  V.  Starkey,  8  C.  &  T.  G9I; 
Wclsli  V.  Lawrence,  2  Chit.  2G2. 

iy)  Woolf  V.  Beard,  8  C.  &  P.  373; 
Cotterill  V.  Starkey,  id.  691 ;  Wynn  v. 
Allard,  .'>  W.  &  S.  524 ;  Cook  v.  Cham- 
plain  Transportation  Co.,  1  Denio,  91  ; 
Brownell  r.  Flajrler,  5  Hill,  282  ;  Barnes 
V.  Cole,  21  Wend.  188;  Bathlnin  r. 
Payne,  19  id.  399  ;  Perkins  ;,•.  Eastern  & 
B.  &  M.  K.  11.  Co.,  29  Maine,  307 ;  May 
V.  Princeton,  11  Met.  442;  Parker  v. 
Adams,  12  id.  415;  Tonawanda  II.  11. 
Co.  I'.  M linger,  5  Denio,  255,  4  Comst. 
349  ;  Brown  v.  I\IaxwelI,  G  Hill,  592  ; 
Tro\v  !■.  Verm.  Central  K.  K.  Co.,  G  Law 
Hep.  N.  S.  83  ;  N.  Y.  &  E.  Hallway  r. 
Skinner,  Supreme  Court  of  Pcnnsyhania, 
Am.  Law  Ke},nster,  Vol.  I,  No.  2,  p.  97. 
Sec  also,  White  r.  Winnissiinmet  Co.,  7 
Cusli.  IGO;  Willetts  ;•.  Buffalo  &  Roches- 
ter K.  B.  Co.,  14  Barh.  585  ;  IMurch  v. 
Concord  Railroad  Corporation,  9  Post.  9  ; 
Damont  r.  N.  ().  &  Carrollton  R.  R.  Co., 
9  Louis.  Ann.  Reps.  441  ;  Kerwiiaker  r. 
Cleycland  C.  &  C.  R.  R.  Co.,  3  Ohio  State 
Reps.  172  ;  (ialcna  &  Ciiicafjo  Union  R.  R. 
Co.  V.  Yarwood.  15  111.  4G8  ;  Ridiardson 
I'.AVil.  &  Man.  R.  R.  Co.,  8  \l\ch.  Law,120. 
And  see  the  late  and  instructive  case  of 
Railroad  Co.  r.  As])cll,  23  I'cnn.  St.  Rej)s. 
147.  Willouslii)y  r.  llorrid-xe,  IG  E.  L. 
&  E.  437.  But  if  the  injury  he  yolnntary 
and  intentional,  the  party  comniittin;^  it 
Avill  he  liaiilc,  iiotwithstaudin;j;  tlic  party 
injured  was  guilty  of  negligence.     There- 


fore, where  the  plaintiff",  being  the  owner 
of  a  lamb,  allowed  it  to  escape  into  the 
highway,  where  it  mingled  with  a  flock  of 
sheep  wliich  the  defendant  was  driving 
along ;  and  he,  knowing  this  fact,  made 
no  attempt  to  separate  the  lamb  from  tiie 
flock,  liut  delivered  the  whole  to  a  drover 
in  ])ursuance  of  a  sale  i)reyiou.sly  made, 
by  whom  they  were  taken  oft"  to  market ; 
it  was  III  Id  that  these  facts  were  sufticient 
to  authorize  a  verdict  in  favor  of  the  plain- 
tiff' for  the  value  of  the  lamb,  though  it 
^vas  not  included  in  the  sale  to  the  drover, 
and  the  defendant  received  nothing  on  ac- 
count of  it.  Brownell  v.  Elagler,  5  Hill, 
282.  See  also,  Tonawanda  R.  R.  Co.  v. 
Munger,  5  Denio,  255,  2G7,  ])Qr  Btardslcy, 
C.  J. ;  Cook  V.  The  Chainplain  Trans- 
portation Co.,  1  id.  91  ;  Wynn  v.  Allard, 
5  W.  &  S.  524;  Rathbun  v.  Pavne,  19 
Wend.  399;  Clay  r.  Wood,  5  Esp.  44. 
So  where  the  party  injured  is  a  child  of 
tender  3'ears  or  otherwise  incapable  of  or- 
diiuiiT  care  and  caution.  Lynch  r.  Nur- 
din,  i  Q.  B.  29.  In  this  case  the  defend- 
ant left  his  horse  and  cart  unattended  in 
the  street.  The  plaintitf,  a  child  seven 
years  old,  got  upon  the  cart  in  jilay  ;  an- 
other ciiild  incautiously  led  the  iiorse  on  ; 
and  the  plaintiff' was  thereby  thrown  down 
and  hurt.  It  was  /i</<l  tiiat  the  defendant 
was  liaiilein  an  action  on  the  case,  though 
the  jilaintiff"  was  a  trespa.<ser,  and  con- 
tributed to  the  injury  by  his  own  act.  This 
case  is  contirmcd  liy  Birge  v.  Gardiner,  19 
Conn.  507,  and  Robinson  i-.  Cone,  22 
Verm.  213.  But  see  contra,  llartfltld  i". 
Roi)er,  21  Wend.  615,  confnmed  by 
Brown  r.  Ma.xwcll,  6  Hill,  592,  and  Mun- 
ger V.  Tonawanda  R.  R.  Co.,  4  Comst. 
349. 

[729] 


702* 


THE   LAW   OF   CONTRACTS. 


[book  m. 


jury  done  to  property  by  the  way-side,  unless  he  can  discharge 
himself  from  want  of  care,  (z) 

In  cases  of  injury  by  collision,  he  whose  negligence  causes 
the  injury  is  responsible.  What  is  called  the  law  of  the  road, 
is  in  this  country,  little  more  than  that  each  party  shall  keep  to 
the  right ;  in  England  to  the  left.  At  sea,  a  vessel  going  free 
must  give  way  to  the  one  on  the  wind  ;  one  on  the  larboard 
tack  gives  way  to  one  on  the  starboard  tack.  And  steamers 
must  give  way  to  sailing  vessels.  These  rules,  as  to  vessels, 
are  based  upon  the  simple  principle,  that  the  vessel  which  can 
alter  her  course  most  easily  must  do  so ;  and  they  are  often 
qualified  by  an  application  of  this  principle,  [a)  An  observance 
of  these  rules,  or  a  disregard  of  them,  is  often  very  important  in 
determining  the  question  of  negligence  ;  especially  where  the 
parties  meet  very  suddenly.  *But  the  law  of  the  road  alone 
does  not  decide  this  question;  for  a  violation  of  it  may  be  for 
good  cause,  or  under  circumstances  which  negative  the  pre- 
sumption of  negligence  which  might  otherwise  arise  from  it.  (b) 
It  is  said  that  he  who  suffers  injury  from  collision,  caused  by 
the  negligence  of  another,  cannot  recover  damages  if  he  was 
himself  at  all  negligent,  and  if  his  negligence  helped  to  cause 
the  injury.  In  some  cases  this  principle  has  been  applied  with 
great  rigor,  and  asserted  in  very  broad  terms  ;  but  it  is  obvious, 
that,  as  a  general  rule,  it  must  be  considerably  modified.  It  is 
impossible  that  he  who  seeks  redress  for  a  wrong  which  he  has 
sustained  by  the  negligence  of  another,  should  always  lose  all 
right,  where  he  has  himself  been  in  any  way  negligent.  There 
must  be  some  comparison  of  the  negligence  of  the  one  party 
with  that  of  the  other,  as  to  its  intensity,  or  the  circumstances 
which  excuse  it,  or  the  degree  in  which  it  enters  as  a  cause  into 
the  production  of  the  injury  complained  of.  In  each  case  it 
must  be  a  question  of  mixed  law  and  fact,  in  which  the  jury, 


(~)  Davies  v.  Mann,  10  M.  &  W.  546;     Chaplin  v.  Hawes,  3  C.  &  P.  554  ;  Clay 
Cook  V.  The  Champlain  Transportation    v.  Wood,  5  Esp.  44  ;  Wayde  v.  CaiT,  2 


Co.,  1  Dcnio,  91. 

(a)  Lowry  v.  The  Steamboat  Portland, 
1  Law  Reporter,  (1839,)  p.  313;  Lock- 
wood  V.  Lashell,  5  Law  Rep.  N.  S.  390. 

(b)  Sec  Pluckwell  v.  Wilson,  5  C.  &  P. 
375 ;  Kcunard  v.  Burton,  25  Maine,  39  ; 

[730] 


D.  &  R.  255;  Buttcrricld  r.  Forrester,  11 
East,  60;  Turlev  v.  Thomas,  8  C.  &  P. 
103;  Wordsworth  v.  Willan,  5  Esp.  273; 
Mayhew  v.  Boyce,  1  Stark.  423  ;  McLeaa 
V.  Sharpe,  2  Haning.  481. 


CH.  XII.]  BAILMENT.  *703 

under  the  direction  of  the  court,  will  inquire  whether  the  de- 
fendant was  guilty  of  so  great  a  degree  of  negligence  as,  in  the 
particular  case,  will  render  him  liable,  and  then,  whether  the 
plaintiff  was  also  guilty  of  so  much  negligence  as  to  defeat  his 
claim,  (c) 


♦SECTION     XIV. 

OF   SPECIAL  AGREEMENTS   AND    NOTICES. 

We  have  seen  how  severe  a  responsibility  is  cast  upon  the 
common  carrier  by  the  law ;  and  it  is  a  very  interesting  ques- 
tion, how  far  he  may  remove  it  or  lessen  it,  with  or  without  the 
concurrence  of  the  other  party.  Can  the  carrier  do  this  by  a 
special  contract  with  the  owner  of  the  goods ;  and  if  so,  is  a 
notice  by  the  carrier  brought  home  to  the  owner  equivalent  to 
such  contract ;  and  if  the  carrier  cannot  in  this  way  relieve  him- 
self entirely  from  his  responsibility,  can  he  lessen  and  qualify  it  ? 
Some  of  these  questions  are  not  yet  definitely  settled. 

There  is  no  doubt  that,  originally,  this  responsibility  was  con- 
sidered as  beyond  the  reach  of  the  carrier  himself.  It  is  but 
about  fifty  years  since  he  was  permitted  to  qualify  or  control  it 
by  his  own  act.  And  courts  have  been  influenced  in  their 
opinion  of  his  rights  in  this  respect,  by  the  view  they  have 
taken  of  the  nature  of  his  responsibility.  The  more  they  have 
regarded  it  as  created  by  the  law  for  public  reasons,  the  less 
willing  have  they  been  that  it  should  be  placed  within  the  con- 
trol of  one  or  of  both  parties  to  be  modified  at  their  pleasure. 

The  first  question  is,  can  the  peculiar  responsibility  of  the 
common  carrier  be  destroyed  by  express  contract  between  him- 

(c)  See  Ri<rl)y  i'.  Hewitt,  5  Exrli.  240  ;  244  ;  Davics  v.  Mann,  10  id.  54G  ;  Robin- 
Greenland  r.  Chaplin,  id.  243;  Tlioiofrood  .son  i>.  Cone,  22  Verm.  213  ;  Moore  r.  In- 
V.  Brj-an,  8  C.  I?.  11.')  ;  Keiinard  ?•.  15ur-  habitants  of  Ahhot,  32  Maine,  46  ;  Mun- 
ton,  25  Maine,  39 ;  Marriott  r.  Stanley,  1  roe  v.  Leaeh,  7  ^let.  274  ;  Chnnliill  v. 
M.  &  Gr.  .568;  Clavards  7-.  Detliiek"  12  Koscheck,  1.")  Conn.  359;  Canoll  v.  N. 
Q.  B.  439  ;  Beatty  ;"•.  Gilmore,  16  I'enn.  Y.  &  N.  II.  K.  U.  Co.,  6  Law  Kop.  N.  S. 
State  Bep.  463  ;  Trow  r.  Verm.  Central  101,  1  Diier,  571 ;  Trow  i-.  Verm.  Cen- 
K.  K.  Co.,  6  Law  Kep.  N.  S.  83  ;  Cattlin  tral  R.  R.  Co.,  24  Verm.  487.  See  also 
I'.  Hills,  8  C.  B.  123;  Bridjjc  r.  The  ante,  p.  701,  n.  (y). 
Grand  Junction  Railway  Co.,  3  M.  &  W. 

[731] 


703- 


THE   LAW    OF   CONTRACTS. 


[book  III. 


self  and  one  who  sends  goods  or  takes  th'em  with  him,  so  as  to 
reduce  the  carrier's  liability  to  that  of  a  private  carrier,  and 
make  him  liable  only  for  his  own  default  ?  It  seems  to  be  well 
settled  by  the  weight  of  authority  that  this  may  be  done ;  {d 


{d)  It  seems  now  to  be  perfectly  settled 
in  this  country  iind  in  England  that  a 
special  contract  between  the  owner  of 
goods  and  a  carrier,  limiting  the  common 
law  liability  of  the  latter,  is  valid.  It  is 
wholly  unnecessary  to  cite  authorities  to 
show  that  such  is  the  case  in  England ;  for, 
although,  as  we  shall  presently  see,  scarcely 
a  volume  of  English  reports  appears  which 
does  not  contain  more  or  less  cases  con- 
cerning contracts  of  this  description,  no 
question  is  ever  made  as  to  their  validity. 
Nor  do  we  conceive  this  to  be  a  departure 
from  the  ancient  principles  of  the  common 
law ;  for  it  nowhere  appears  that  such 
contracts  were  ever  prohibited  as  contra- 
vening the  policy  of  the  law.  "  Tiiere  is 
no  case,"  savs  Lord  EUenhorouqh,  in 
Nicholson  v.  Willan,  5  East,  507,  ''to  be 
met  with  in  the  books  in  which  the  right  of 
a  cai-rier  thus  to  limit  by  special  contract 
his  own  responsibility,  has  ever  been  by 
express  decision  denied."  It  should  be 
observed,  moreover,  that  this  question  is 
not  at  all  attccted  by  the  Carriers  Act,  1 1 
G.  IV.  &  1  Will.  IV.  c.  68,  for  by  the 
6th  section  of  that  act  it  is  provided  that 
notliing  in  the  act  contained  shall  in  any- 
wise affect  any  special  contract  for  the 
conveyance  of  goods  and  merchandises. 
See  tlie  act  fully  stated, /wsf,  p.  711,  n.  (A). 
On  this  side  of  the  Atlantic  we  are  not 
awai'e  of  any  case  in  which  the  validity  of 
such  contracts  is  denied  until  Cole  v. 
Goodwin,  19  "Wend.  2.51,  (1838).  There 
the  defendants,  who  were  stage-coach  pro- 
prietors, had  published  a  notice  to  the 
effect  that  all  baggage  sent  by  their  line 
would  be  at  the  risk  of  the  owners.  The 
question  was,  whether  such  notice,  brought 
home  to  the  knowledge  of  the  plaintiff, 
should  exempt  the  defendants  from  their 
common-law  liability.  And  it  was  held 
that  it  should  not.  And  Mr.  Justice 
C'oioen,  who  delivered  the  opinion,  declared 
that  there  was  no  difference  lietween  such 
notice  brought  to  the  plaintiff's  knowledge 
and  an  express  contract ;  that  both  were 
evidence  of  an  agreement  between  the 
parties  to  limit  the  carrier's  liability  ;  but 
that  both  were  void  as  contravening  the 
policy  of  the  law.  In  1840,  the  case  of 
Joues  V.  Voorhees,  10  Ohio,  145,  was  de- 

[732] 


cided  by  the  Supreme  Court  of  Ohio. 
That  case  raised  precisely  the  same  ques- 
tion that  was  raised  in  Cole  v.  Goodwin  ; 
and,  although  the  decision  went  no  fur- 
ther than  to  declare  that  a  notice  brought 
to  the  plaintiff's  knowledge  did  not  ex- 
empt the  defendant  from  his  common  law 
liability.  Wood,  J.,  who  delivered  the 
opinion  of  the  court,  manifested  a  strong 
inclination  to  adopt  the  views  of  Mr.  Jus- 
tice Cotcen,  in  their  full  extent.  In  1842 
came  the  case  of  Gould  t'.  Hill,  2  Hill, 
623.  That  was  an  action  brought  in  the 
Superior  Court  of  the  city  of  New  York, 
against  the  defendants,  as  common  carri- 
ers, to  recover  the  value  of  certain  goods 
delivered  to  them  to  be  transported  from 
New  York  to  Philadelphia.  On  deliver- 
ing the  goods  in  question  to  the  defend- 
ants, tiiey  gave  the  plaintiffs  a  memoran- 
dum, which  stated,  among  other  things, 
that  the  defendants  would  not  hold  them- 
selves responsible  in  case  of  loss  by  fire. 
The  goods  were  destroyed  by  fire  on  their 
passage;  and  evidence  was  given  tending 
to  show  that  the  loss  was  not  occasioned 
by  the  negligence  or  want  of  care  of  the 
defendants.  The  court  charged  the  jury 
that  under  the  circumstances  the  defend- 
ants were  chargeable  only  for  a  loss  result- 
ing from  negligence.  The  plaintiff  ex- 
cepted, and  the  jury  having  returned  a  ver- 
dict for  the  defendants,  upon  which  judg- 
ment was  rendered,  a  writ  of  error  was 
sued  out  from  the  Supreme  Court.  And 
per  Cowen,  J.  :  "  In  this  case  the  common 
carriers,  instead  of  alleging  a  general 
notice  restricting  their  liability  to  the 
plaintiffs  and  all  others,  furnished  them 
with  a  special  acceptance  in  writing,  which 
they  received,  and  delivered  the  goods  ac- 
cordingly. This  constitutes  undoubted 
evidence  of  assent  on  their  part.  One  ex- 
ception was,  of  casualties  occasioned  by 
tire ;  and  the  loss  arose  from  that  cause. 
The  servants  of  the  defendants  were  called 
as  witnesses  to  make  out  a  case  of  care ; 
and  the  jury,  under  the  charge  of  the 
court,  allowed  this  as  a  defence.  For  my- 
self I  shall  do  little  more  than  refer  to  my 
opinion  in  Cole  v.  Goodwin,  (li)  Wend. 
281,)  and  the  reason  for  such  opinion  as 
stated  in  that  case.   It  was  to  the  eifect,  that 


en.  XII.] 


BAILMENT. 


704-*705 


although  in  some  of  the  cases  in  which  it  is  *allowecl,  it  is  inti- 
mated that  this  is  a  departure  from  the  *ancient  principles  of  the 


I  could  no  more  regard  a  special  accept- 
ance as  operating  to  talvc  from  the  duty  of 
the  common  carrier,  than  a  general  one. 
I  collect  what  would  l)e  a  contract  from 
both  instances,  ])rovided  it  he  lawful  for 
the  carrier  to  insist  on  it ;  and  such  is  the 
construction  wliich  has  heen  given  to  l)oth 
by  all  the  courts.  The  only  dilference  lies 
in  the  different  kinds  of  evidence  by  which 
the  contract  is  made  out.  When  the  jury 
have  found  that  the  goods  were  delivered 
witli  intent  to  abide  the  terms  of  the  gen- 
eral notice,  I  understand  a  contract  to  be 
as  effectually  fastened  u])on  tlie  bailor  as 
if  he  had  reduced  it  to  writing.  Indeed, 
the  contrary  construetion  would,  I  tliink, 
be  to  tolerate  a  fraud  on  the  part  of  the 
bailor.  Tiie  true  ground  for  repudiating 
the  general  notice,  is,  therefore,  its  being 
against  public  jjolicy  ;  and  this  ground 
goes  not  oidy  to  the  evidence  —  the  mode 
in  wliicli  you  arc  to  prove  the  assent  —  but 
to  the  contract  itself.  After  forl)idding  the 
carrier  to  impose  it  under  tlie  form  of  a 
general  notice,  therefore,  we  cannot  con- 
sistcntl}-  allow  lum  to  do  the  same  thing  in 
the  form  of  a  sjiecial  notice  or  receipt. 
The  conse(|Ucnces  to  the  pulilic  would  l)C 
the  same,  wjjether  we  allow  one  form  or 
tlie  other."  The  judgment  was  accord- 
ingly revei-scd ;  Nelson,  C.  J.,  dissentiiit/. 
We  are  not  aware  that  this  decision  has 
ever  been  sanctioned  l)y  ain-  court  in  this 
country.  It  received  the  ap])roliation  of 
Mr.  Justice  Xisliet  in  Fish  i\  Chajnnan,  2 
Geo.  :U9,  but  that  case  did  not  call  for 
any  decision  upon  the  question.  On  tiie 
other  hand,  in  i848,  the  Supreme  Court 
of  th(!  United  States,  in  the  case  of  Tlie 
isew  Jersey  Steam  Nav.  Co.  r.  Merchants' 
Bank,  G  How.  ."544,  deined  the  authority 
of  (louhlr.  Hill,  and  /«/</  such  a  eontract 
to  be  valid.  Xi/suii,  J.,  said:  "As  the 
extraordinary  duties  annexed  to  his  em- 
ployment concern  only,  in  the  ]»arlicular 
instance,  the  jiarties  to  the  transaction,  in- 
volving simply  rights  of  property,  —  tlie 
safe  custody  and  ilelivery  of  the  goods, — 
we  are'  unahle  to  perceive  any  well-founded 
objection  to  the  restriction,  or  any  stronger 
reasons  forbidding  it  than  exist  in  the  case 
of  any  other  insurer  of  goods,  to  wliich 
his  obligation  is  analogous  ;  and  wliieh 
depends  altogether  urion  the  contract  be- 
tween the  ])arties.  The  owner,  by  enter- 
ing into  the  contract,  virtually  agrees,  that, 

VOL.  I.  62 


in  respect  to  the  particular  transaction,  the 
carrier  is  not  to  be  regarded  as  in  tlie  ex- 
ercise of  his  pulilie  emjiloyment ;  but  as  a 
private  person  who  incurs  no  resi)onsiI)il- 
ity  beyond  that  of  an  ordinary  bailee  for 
hire,  and  answerable  only  for  misconduct 
or  negligence.  The  right  thus  to  restrict 
the  obligation  is  admitted  in  a  large  class 
of  cases  founded  on  l)ills  of  lading  and 
charter-parties,  where  the  cxccjition  to  the 
common  law  liability  (other  than  tiiat  of 
inevitable  accident)  has  been,  from  time 
to  time,  enlarged,  and  the  risk  diminished, 
by  the  cx]nx'ss  stijnilation  of  the  ])arties. 
The  right  of  the  carrier  thus  to  limit  his 
liability  in  the  shipment  of  goods  has,  wc 
think,  never  been  doubted."  Since  that 
time,  Gould  ?•.  Hill  has  been  expressly  - 
overruled  ia  New  York  in  three  cases  ;  one 
in  the  Supreme  Court,  and  two  in  the 
Su])erior  Court  of  the  city  of  New  York. 
We  allude  to  Parsons  v'.  Monteath,  13 
Barb.  3.53  ;  Dorr  v.  N.  J.  Steam  Nav.  Co., 
4  Sandf.  136,  and  Stoddard  v.  The  Long 
Island  K.  K.  Co.,  5  Sandf.  180;  Dorr  r. 
New  Jersey  Steam  Nav.  Co.,  1  Kern. 
485  ;  The  "Mercantile  Mutual  Ins.  Co.  i-. 
Ciiase,  1  E.  D.  Smith,  11.'3.  Dorr  r.  N. 
J.  Steam  Nav.  Co.  was  an  action  against 
the  defendants  as  common  carriers  u])on 
the  Long  Island  Sound,  between  New 
York  and  Stonington,  to  recover  damages 
for  the  loss  of  goods.  The  declaration 
averred  that  the  plaintiti's,  wIkj  were 
merchants  in  New  York,  shipjicd  the 
goods  ia  question  on  board  the  steamer 
Lexington,  in  the  defendants'  line,  to  be 
carried  to  Stonington ;  that  on  the  same 
evening,  the  steamer  was  consumed  by 
fire  on  her  passage,  and  tlie  plaintiffs' 
goods  destroyed,.  The  defendants  jdeaded 
that  the  goods  in  question  were  received 
by  them  under  a  special  contract,  by  rea- 
son of  a  clause  and  notice  inserted  in  their 
bill  of  lading,  which  was  set  forth  in  the 
])Ica,  and  which  contained,  among  other 
things,  that  the  goods  in  (|uestion  were  to  be 
transported  to  .Stonin;:ton  ;  ddiii/n-  <;f\/irf, 
i\r.,  escr-jiUd.  The  plea  then  averrc<l  that 
the  liability  of  the  defemlants  was  restrict- 
ed by  the  exception  of  the  casualties  men- 
tioned in  the  bill  of  lading,  and  that  the 
loss  in  ([ucstion  was  occasioned  by  one  of 
the  excepted  casualties,  and  was  without 
the  fault  or  negligence  of  the  defendants. 
To  this  pica  the  plaintiffs  demurred.    And 

[733] 


706*-707* 


THE    LAW    OF    CONTRACTS. 


[book  III. 


common  law.     It  has  also  been  said  *in  some  late  cases  in  this 
country,  particularly  in  one  in  New  *York5  (e)  that  no  such  con- 


CampbelJ,  J.,  in  pronouncing  judgment 
upon  the  demurrer  in  favor  of  the  defend- 
ants, said  :  "  The  question  presented  for 
our  consideration  is,  whether  common 
carriers  can,  by  special  contract,  restrict 
their  liabilities  for  losses  which  occur  other- 
wise than  by  the  act  of  God  or  the  public 
enemies.  If  the  point  were  now  for  the 
first  time  raised,  we  should  have  consid- 
ered it,  if  not  entirely  free  from  difficulty, 
at  least  as  not  leaving  much  room  for 
doubt  as  to  the  correctness  of  the  conclu- 
sion at  which  we  have  anived.  The 
judgment  of  a  majority  of  the  late  Su- 
preme Court,  pronounced  in  the  case  of 
Gould  V.  Hill,  2  Hill's  R.  623,  was  cited 
and  urged  on  the  part  of  the  plaintiffs  as 
settling  the  law  in  this  State,  that  a  com- 
mon carrier  cannot,  by  s]iecial  contract, 
limit  his  lialiility.  Though  the  court  was 
divided  in  opinion,  the  cause  does  not 
seem  to  have  been  carried  to  the  court  for 
the  correction  of  errors,  and  we  arc  not 
therefore  sure  of  what  would  have  been 
the  decision  of  tiie  court  of  last  resort. 
But  the  clear  conviction  of  all  of  us,  that 
the  case  of  Gould  v.  Hill  was  not  correctly 
decided,  supported  as  we  are  by  the  Su- 
preme Court  of  the  United  States,  (Mer- 
chants' Bank  v.  New  Jersey  Steam  Naviga- 
tion Company,  G  Howard,  344,)  and  the 
great  imi)ortance  of  the  question  to  a 
commercial  people,  especially  the  im]3or- 
tance  of  uniformity  between  the  courts  of 
the  State  and  Union,  in  the  rules  of  law 
regulating  commercial  transactions,  com- 
pel ns  respectfully  to  dissent  from  the 
judgment  in  that  case."  Stoddard  v.  Long- 
Island  li.  R.  Co.  is  to  the  same  effect.  In 
Parsons  r.  Monteath,  tlie  defendants  being 
common  carriers  on  the  Erie  Canal,  be- 
tween All)any  and  Bulfalo,  and  occupying 
a  warcliouse  on  the  pier  at  Albany,  their 
agent  in  New  York  received  goods  there, 
belonging  to  the  plaintiff,  and  gave  a 
receipt  or  shipping-bill  therefor,  in  the 
name  of  the  defendants,  by  which  they 
agreed  to  transport  the  goods  to  Brighton 
Locks,  "the  danger  of  the  lakes,  of  fire, 
&c.,  and  acts  of  Pi'ovidcnce  excepted." 
The  goods  reached  AUiany  on  the  morning 
of  August  17,  1848,  and  were  taken  from 
the  tow-boats  into  the  defendants'  ware- 


house on  the  pier.  On  the  same  day  a 
fire  broke  out  in  the  city  of  All)any,  by 
which  tlic  warehouse  was  consumed  ;  and 
the  plaintiff's  goods,  being  removed  by 
the  defendants'  agent  into  a  canal  boat  in 
the  basin,  were  destroyed  by  the  fire. 
Held,  that  the  defendants  sustained  the  re- 
lation of  common  carriers  of  the  goods,  at 
the  time  the  fire  broke  oat,  and  when  the 
goods  were  destroyed ;  and  that  the  rules 
of  law  incident  to  that  I'clation  ajjplicd  to 
them  ;  but  that  they  had  a  right  to  cir- 
cumscribe or  limit  their  common  law  lia- 
bility as  common  carriers,  by  agreement ; 
and  that  having  expressly  excepted  the 
risk  of  loss  by  ^fire,  they  were  not  liable 
for  the  value  of  the  goods.  Wells,  J., 
said :  "  Were  it  not  for  the  late  case  of 
Gould  V.  Hill,  (2  Hill,  623,)  I  should  have 
no  hesitation  in  holding  the  contract  be- 
tween the  parties  as  valid  and  binding, 
and  one  to  whicli  we  were  bound  to  give 
effect.  To  do  so  would  be  in  accordance 
with  a  long  and  unbroken  course  of  de- 
cision in  England  and  in  many  of  our 
sister  states,  and  in  all  of  them,  I  believe, 
where  the  question  has  arisen,  excepting 
Ohio  ;  and  would  be  in  harmony  with  the 
views  of  all  the  elementary  writers  on  the 
subject.  It  is  unnecessary  to  go  into  a 
particular  examination  of  the  autliorities 
cited.  I  content  myself  with  the  remark, 
that  the  doctrine  is  fully  asserted  by  Story, 
Chitty,  Kent,  and  Angell,  and  most 
al)undantly  sustained  by  tlie  authorities  to 
which  they  refer.  But  in  the  case  of 
Gould  V.  Hill,  {sifjva,)  Justice  Cutven  held 
a  contrary  doctrine ;  that  it  was  not  compe- 
tent for  a  common  carrier  to  restrict,  by  spe- 
cial contract,  his  common  law  liability;  and 
that  where  the  defendant,  being  a  common 
carrier,  on  I'eceiving  the  plaintiff' 's  goods 
for  transportation,  gave  him  a  memoran- 
dum l)y  ^^'hich  he  promised  to  forward  the 
goods  to  their  place  of  destination,  damjer 
of  fire,  &c.,  excepted,  the  defendant  was 
liable  for  a  loss  b}'  fire  although  not  result- 
ing from  negligence.  The  learned  justice 
puts  his  decision  wholly  on  the  ground  of 
])ublic  policy  ;  and  refers  to  his  reasoning 
in  the  case  of  Cole  v.  Goodwin,  (19  Wend. 
2.51,)  the  substance  of  which  is  (p.  281) 
that  a  common  carrier's  business  is  of  a 


[734] 


(e)  Gould  1-.  Hill,  2  Hill,  G23. 


CH.  XII.] 


BAILMENT. 


-707 


tract  is  valid,  ov  has  any  efficacy.  But  this  case  seems  to  rest 
upon  a  previous  decision,  (/)  that  the  carrier's  responsibility  is 
not  affected  by  a  notice  from  him  made  known  to  the  other 
party;  and  upon  the  difficulty  of  distinguishing  this  from  an 
express  contract. 

Undoubtedly  it  may  be   difficult  to  discriminate  very  clearly 


public  nature  ;  that  lie  is  a  puhlic  servant 
and  bound  to  iieiform  the  duties  of  his 
office,  and  that  lie  slioukl  no  more  be  per- 
mitted to  limit  or  vary  his  oblijiations  or 
liabilities  by  contract,  than  a  sheriff',  or 
jailer,  or  any  other  officer  appointed  by 
law.  The  only  question  with  me  is,  how 
far  we  arc  bound  by  the  case  of  Gould  v. 
Hill,  and  whether  the  maxim,  stam  decisis, 
in  consequence  of  it,  is  to  govern  the  pres- 
ent case.  It  is  tjje  only  reported  case 
where  this  precise  question  has  been  de- 
cided in  that  way  in  this  State.  No  case 
that  I  am  aware  of,  has  followed  it,  affirm- 
ing tlie  doctrine.  Nelson,  then  chief  jus- 
tice of  this  court,  dissented  from  the  decis- 
ion, lam  disposed  therefore  to  think,  in 
view  of  the  great  imj)ortance  of  the  ques- 
tion and  its  connection  with  so  large  a 
branch  of  the  commerce  of  the  country, 
that  we  ought  to  take  the  res])onsibility  of 
oveiTuling  it,  ])roviding  we  tliink  it  not  in 
accordance  with  the  settled  law  of  the 
land.  It  is  a  question  in  relation  to  which, 
almost  above  all  others,  the  law  sliould  be 
uniform  throughout  the  commercial  world, 
especially  among  the  different  t^tates  of 
the  Union.  It  relates  to  transactions, 
whidi,  in  their  nature,  exjiand  themselves 
over  and  tin-ough  extensive  districts  of 
country,  and  to  places  widely  separated 
from  each  other.  No  one  can  fail  to  per- 
ceive the  great  inconvenience  that  must 
result  from  having  different  and  hostile 
rules  on  the  subject,  prevailing  between 
the  different  Atlantic  cities,  or  lietwcen 
them  and  the  Western  States.  If  it  be 
true,  as  I  think  is  undeniable,  that  by  the 
law  as  entirely  .settled  in  England,  and  in 
most  of  the  United  States,  and  as  held  by 
the  most  eminent  jurists  of  the  country,  a 
common  carrier  may,  by  sjiccial  contract 
vvitii  his  employer,  limit  his  liai)ility  and 
relax  the  rigor  of  the  common  law  rule 
applical)lc  to  his  position,  I  think  wc 
ought  not  to  hesitate  in  giving  the  law,  so 
declared,  effect  in  the  case  at  bar,  notwith- 
standing the  isolated  authority  in  this 
court,  wjiich  staiuls  opposed  to  it.  I  think 
the  rule  as  laid  down  by  Justice  Cowcn, 


should  be  regarded  as  a  deviation  from  the 
true  one,  from  which  the  court  shoidd  re- 
turn at  the  earliest  o])portunity,  and  that, 
too,  notwithstanding  we  might,  were  the 
question  entirely  open,  prefer  a  different 
one."  The  learned  judge  then  )n"oceeds 
to  declare  Ills  disajiproval  of  Gould  v. 
Hill  upon  principle,  admitting  the  (pies- 
tion  to  l)e  still  an  open  one,  and  con- 
cludes :  "  In  every  light  that  I  have  been 
able  to  view  the  question,  I  am  forced  to 
the  conclusion  that  the  rule  in  Gould  v. 
Hill,  is  not,  and  ought  not  to  be,  the  law. 
That  it  is  o])j)osed  to  reason  as  well  as  to 
authority,  and  ought  not  to  be  followed." 
And  in  the  late  case  of  Moore  v.  Evans, 
14  Barb.  524,  Gould  v.  Hill  is  again  cx- 
])licitly  overruled.  See  also,  Stoddard  v. 
Long 'Island  K.  R.  Co.,  5  Sandf.  180; 
Dorr  V.  The  New  Jersey  Steam  Naviga- 
tion Co.,  1  Kcrnan,  485.  The  result  is 
that  there  is  no  case,  which  is  any  longer 
to  be  regarded  as  an  authority,  that  de- 
cides that  an  express  contract  between  the 
owner  of  goods  and  a  carrier,  limiting  the 
liability  of  the  latter,  is  void.  For  cases, 
besides  those  already  cited,  which  hold 
that  such  a  lontract  is  valid  and  binding, 
see  the  following  :  Swindler  r.  Hilliard,  2 
Rich.  286;  Camden  and  Amboy  Railroad 
Co.  f.  Baldauf,  IC  I'enn.  State  Kep.  C7  ; 
Bingham  v.  Rogers,  G  W.  &  S.  495  ;  Beck- 
man  i\  Shouse,  5  Rawle,  179;  Reno  ?•. 
Hogan,  12  B.  Monr.  G.'5 ;  Farmers'  and  Me- 
chanics' Bank  r.  Cham])lain  Transporta- 
tion Co.,  2.J  Verm.  186;  Kimball  >•.  Rut- 
land &B.  R.  R.  Co.,  26  Vt.  247  ;  Sager  r. 
The  rortsniouth,  &c.,  R.  R.  Co.,  31  ^Slainc, 
228 ;  Walker  v.  York  &  No.  Midland 
Railway,  :i  Carr.  &  Kir.  279.  See  also, 
the  editors'  notes  to  ..Austin  v.  The  M., 
S.,  &  L.  Railway  Co.,  11  E.  L.  &  E.  50G, 
and  Can-  r.  The  L.  &  Y.  Railway  Co.,  14 
E.  L.  &  E.  340,  where  the  cases  are  col- 
lected. And  Slim  r.  The  Nortliern  Rail- 
way Co.,  26  E.  L.  &.  E.  297.  To  wliat  ex- 
tent a  carrier  nmy  thus  exempt  iiimself 
fnun  his  comnKin  law  liability,  we  shall  in- 
quire in  another  note. 

( /")  Cole  r.  Goodwin,  18  Wend.  251. 

[735] 


708* 


THE    LAW   OF    CONTRACTS. 


[book  III. 


between  the  case  where  the  carrier  and  the  sender  expressly 
agree  that  the  carrier  shall  not  be  responsible  for  the  property, 
and  that  in  which  the  carrier  says  to  the  sender,  "  If  you  send 
goods  by  me,  I  will  not  be  responsible  for  them,"  and  the  sender 
thereafter,  without  reply,  sends  goods  by  him.  But  we  think 
there  is  a  real  difference.  The  rule  of  law,  derived  from  public 
policy,  may  not  go  so  far  as  to  *say  that  the  carrier  and  the 
sender  shall  not  agree  upon  the  terms  on  which  the  goods  are 
to  be  transported ;  but  it  may  nevertheless  say,  that  the  carrier 
has  neither  the  right  to  force  such  an  agreement  on  the  sender, 
nor  to  infer,  mereli/  from  his  silence,  ihsit  he  accepts  the  proposed 
terms.  He  may  be  silent  either  because  he  assents  to  them,  or 
because  he  disregards  them,  and  chooses  to  stand  upon  the 
rights  which  the  law  secures  to  him.  The  sender,  who  may  be 
a  passenger  about  to  enter  a  boat  or  a  car  witR  his  baggage, 
learns  by  reading  the  ticket  which  he  buys  that  if  he  puts  that 
baggage  on  board  it  will  be  all  the  way  at  his  own  risk.  He 
has  a  right  to  disregard  such  notice  ;  to  say  it  is  not  true  ;  to 
deliver  his  baggage  to  the  proper  person,  placing  it  under  the 
responsibilities  which  lie  upon  the  carrier  by  the  general  law. 
To  hold  otherwise  would  be  to  say,  not  merely  that  carrier  and 
sender  may  agree  to  relieve  the  carrier  from  his  peculiar  liability, 
but  that  the  carrier  has  a  right  to  force  this  agreement  on  the 
sender ;  which  is  a  very  different  thing,  (g) 


{(j)  The  question  whether  a  public  no- 
tice, broup;ht  to  the  knowledge  of  the 
bailor,  will  constitute  such  special  contract, 
or  be  equivalent  thereto,  is  perhaps  not 
entirely  settled,  but  the  decided  weight  of 
authority  is  that  it  will  not.  The  first 
case  in  which  it  was  expressly  ruled  that 
such  a  notice  was  valid  and  binding,  is 
that  of  Having  v.  Todd,  1  Stark.  72,  de- 
cided in  1815.  For  several  years  pre- 
vious to  this,  as  we  shall  presently  see, 
carriers  had  been  in  the  habit  of  publishing 
notices  to  the  ctfcct  that  they  would  not 
be  responsible  for  goods  beyond  a  certain 
value,  unless  their  true  value  was  disclosed, 
and  freight  paid  accordingly ;  and  these 
notices  had  received  the  sanction  of  the 
courts.  In  the  case  of  Ellis  v.  Turner,  8 
T.  R.  531,  decided  in  1800,  a  notice  of  a 
different  character  made  its  appearance. 

["736] 


It  was  an  action  against  the  defendants  as 
ship-owners  for  the  loss  of  goods.  They 
had  published  a  notice  to  the  effect  that 
they  would  not  be  answerable  for  any  loss 
or  damage  that  might  happen  to  any 
cargo,  unless  such  loss  or  damage  should 
be  occasioned  by  the  want  of  ordinary 
care  and  diligence  in  the  master  and  crew, 
in  which  case  they  would  pay  £\0  per 
cent,  upon  the  loss  or  damage,  provided 
such  payment  did  not  exceed  the  value  of 
the  vessel ;  but  that  they  were  willing  to 
insure  against  all  accidents,  on  receiving 
extra  freight  in  proportion  to  the  value. 
The  case,  however,  went  off  upon  another 
point,  so  that  the  validitj^  of  the  notice  did 
not  come  in  question.  In  1804  came  the 
case  of  Lyon  v.  Mells,  8  East,  428,  in 
which  a  notice  of  the  same  import  had 
been  given.     But  this  case  also  went  off 


en.  XII.] 


BAILMENT. 


709-*710 


But  although  the  common  carrier  cannot  by  such  notice  ex- 
tinguish his  peculiar  liability,  yet  he  can  in  this  way  'materially 


without  drawing  in  question  the  validity 
of  the  notice.  In  1813,  in  the  case  of 
Evans  v.  Soule,  2  M.  &  S.  1,  a  notice  ap- 
peared wliicli  extended  tlie  exemption  of 
the  carrier  still  further.  That  also  was  an 
action  aj^ainst  the  owner  of  a  vessel.  He 
had  f^iven  notice  tliat  he  should  not  con- 
sider himself  liable  to  make  good  to  any 
extent  any  loss  or  damage  arising  from 
any  accident  or  misfortune  whatever,  un- 
less occasioned  by  the  actual  negligence 
of  the  master  or  mariners.  The  plaintiffs 
counsel  did  not  deny  the  validit}'  of  the 
notice,  but  contended  that  it  had  been 
waived.  The  court  merely  decided  that 
it  had  not  been  waived,  and  gave  judg- 
meiit  for  the  defendant.  Thus  stood  the 
cases  when  Maving  i:  Todd  came  up,  in 
1815.  This  was  an  action  against  the  de- 
fendants, who  were  lightermen,  for  the 
loss  of  goods  intrusted  to  them  to  carr}'. 
It  appeared  that  the  goods,  whilst  in  the 
defendants'  custody,  had  been  accidentally 
destroyed  by  lire,  and  the  (piestion  was, 
whether  they  were  lial)le  for  the  loss.  It 
appeared  that  they  had  so  limited  their 
responsibility  by  a  notice  that  it  did  not 
extend  to  a  loss  by  fire.  Ilulroijd,  for  the 
plaintiff,  sul)mittcd  "whether  the  defend- 
ants c(ju!d  exclude  their  resjionsibility 
altogether.  This  was  going  further  than 
had  been  done  in  the  case  of  carriers,  who 
luid  only  limited  their  responsibility  to  a 
certain  amoiuit."  But,  per  Lord  Elleii- 
boioii(//i :  "  Since  they  can  limit  it  to  a 
particular  sum,  I  think  they  nniy  exclude 
it  altogether,  aiul  that  they  may  say,  wc 
will  ha\c  nothing  to  do  with  tire."  IIol- 
royd :  "  Tliey  were  bound  to  receive  the 
goods."  Lord  Kllcnhoromih :  "  Yes,  but 
they  may  make  tlieir  own  terms.  I  am 
sorry  the  law  is  so  ;  it  leads  to  very  great 
negligence."  The  next  year  came  the 
case  of  Lieson  r.  Holt,  1  Stark.  180.  Tiie 
plaintiff  in  this  case  had  sent  souk^  chairs 
by  the  defendant,  who  was  a  common 
carrier.  The  defendant  hail  given  a  no- 
tice to  the  eflect  that  all //oi(.s7/iti'(//»ni/V(/re 
sent  by  liim  would  be  entirely  at  the  risk 
of  the  owner  as  to  damage,  breakage,  &c. 
Loril  Kill  iilioromih,  in  summing  u]>  to  the 
jury,  said  :  "  If  this  action  hail  l)een 
brought  twenty  years  ago,  the  defendant 
would  have  been  liable,  since,  by  the  com- 
mon law,  a  carrier  is  lialtle  in  all  cases 
except  two  ;  where  the  loss  is  occasioned 

02* 


by  the  act  of  God,  or  of  the  king's  enemies 
using  an  overwhelming  force,  which  per- 
sons with  ordinary  means  of  resistance 
cannot  guard  against.  It  was  found,  that 
the  common  law  imposed  upon  carriers  a 
liability  of  ruinous  extent,  and  in  conse- 
quence, qmdifications  and  limitations  of 
that  liability  have  been  introduced  from 
time  to  time,  till,  as  in  the  present  case, 
they  seem  to  have  excluded  all  responsi- 
bility whatsoever,  so  tliat  under  the  terms 
of  the  present  notice,  if  a  servant  of  the 
carrier's  had,  in  the  most  wilful  and  wanton 
manner,  destroyed  the  furniture  intrusted 
to  them,  the  principals  would  not  have 
been  liable.  If  the  parties  in  the  present 
case  have  so  contracted,  the  plaintiff  must 
abide  by  the  agreement,  and  he  must  be 
taken  to  have  .so  contracted,  if  he  chooses 
to  send  his  goods  to  be  carried  after  no- 
tice of  the  conditions.  The  question  then 
is,  whether  there  was  a  special  contract. 
If  tiie  carriers  notified  their  terms  to  the 
person  bringing  the  goods,  by  an  adver- 
tisement, which,  in  all  probability,  must 
have  attracted  the  attention  of  the  ])crson 
who  brought  the  goods,  they  were  deliver- 
ed upon  those  terms  ;  but  the  question  in 
these  cases  always  is,  whether  the  deliv- 
ery was  upon  a  s])ecial  contract."  This 
is  the  last  that  we  hear  of  notices  of  this 
character  in  England,  until  they  were 
finally  jiut  an  end  to  by  the  Carriers'  Act 
already  alluded  to.  See  t!ie  Act,  ;;o.s7,  p. 
711,  n.  (A).  On  this  side  of  the  Atlantic 
these  notices  were  extensively  discussed 
for  the  first  time  in  Ilollistcr  v.  Nowlen, 
19  Wend.  234,  and  Cole  r.  Goodwin,  id. 
2.51.  These  cases  were  decided  in  1838. 
The  defendants  in  liotli  cases  were  coach 
])roprietors,  and  had  published  notices  to 
the  effect  that  all  baggage  sent  by  their 
lines  would  be  at  the  risk  of  the  owners. 
The  Supreme  Court  of  New  York,  after  a 
most  careful  consideration  of  the  question, 
declared  that  the  notices  were  of  no  avail ; 
that  the  defeiulants  were,  notwithstanding, 
subject  to  all  their  common  law  liability. 
Mr.  Justice  C'oircn,  who  delivered  the 
opinion  in  the  last  case,  placed  the  judg- 
uu-nt  of  the  court,  as  we  have  alri'ady 
seen,  on  ixrounds  of  pulilic  policy,  which 
extended  equally  to  siu-li  notices  and  to 
sj)ecial  coiuraets.  But  in  tiie  former  case 
the  opinion  was  delivcix'il  by  Mr.  Justice 
Bronson,   and   he    took    the   groinid    that 

[737] 


710- 


THE   LAW   OF    CONTRACTS. 


[book  III. 


modify  and  qualify  it.     A  public  notice,  so  spread   abroad  that 
all  might  know  it,  and  brought  to  the  distinct  knowledge  of  the 


such  notices. were  not,  upon  sound  prin- 
ciples of  construction,  equivalent  to  a  spe- 
cial contract.  Upon  tiiis  point  he  uses 
the  following  language  :  "  Conceding  that 
there  may  bo  a  special  contract  for  a  re- 
stricted liability,  such  a  contract  cannot,  I 
think,  be  inferred  from  a  general  notice 
brought  home  to  the  employer.  The  ar- 
gument is,  that  where  a  party  delivers 
goods  to  be  carried,  after  seeing  a  notice 
that  the  carrier  intends  to  limit  his  respon- 
sibility, his  assent  to  the  terms  of  the  no- 
tice may  be  implied.  But  this  argument 
entirely  overlooks  a  very  important  con- 
sideration. Notwithstanding  the  notice, 
the  owner  has  a  right  to  insist  that  the 
carrier  shall  receive  the  goods  subject  to 
all  the  responsibilities  incident  to  his  em- 
ployment. If  the  delivery  of  goods  under 
such  circumstances  authorizes  an  implica- 
tion of  any  kind,  the  presumption  is  as 
strong,  to  say  the  least,  that  the  owner  in- 
tended to  insist  on  his  legal  rights,  as  it  is 
that  he  was  willing  to  yield  to  the  wishes 
of  the  carrier.  If  a  coat  be  ordered  from 
a  mechanic,  after  he  has  given  the  cus- 
tomer notice  that  he  will  not  furnish  the 
article  at  a  less  price  than  one  hundred 
dollars,  the  assent  of  the  customer  to  pay 
that  sum,  though  it  be  double  the  value, 
may  perhaps  be  implied  ;  but  if  the  me- 
chanic had  been  under  a  legal  obligation, 
not  only  to  furnish  the  coat,  but  to  do  so 
at  a  reasonable  price,  no  such  implication 
could  arise.  Now  the  carrier  is  under  a 
legal  obligation  to  receive  and  convey  tlic 
goods  safely,  or  answer  for  the  loss.  He 
has  no  right  to  prescribe  any  other  terms ; 
and  a  notice  can  at  the  most  only  amount 
to  a  proposal  for  a  special  contract,  which 
requires  the  assent  of  the  other  party. 
Putting  the  matter  in  the  most  favorable 
light  for  the  carrier,  the  mere  deliver}-  of 
goods,  after  seeing  a  notice,  cannot  war- 
rant a  stronger  presumption  that  the  owner 
intended  to  assent  to  a  restricted  liability, 
on  the  ])art  of  the  carrier,  than  it  does  that 
he  intended  to  insist  on  the  liabilities  im- 
posed by  law  ;  and  a  special  contract  can- 
not be  implied  where  there  is  such  an 
equipoise  of  probabilities."  To  the  same 
effect  arc  the  remarks  of  Hcdjidd,  J.,  in 
Farmers'  and  Mechanics'  Eank  i\  The 
Champlain  Transportation  Co.,  2.3  Verm. 
18G,  205.  "  We  are  more  inclined,"  says 
he,  "  to  adopt  the  view  which  the  Ameri- 

[738] 


can  cases  have  taken  of  this  subject  of 
notices,  by  common  carriers,  intended  to 
qualify  their  responsiliility,  than  that  of 
the  English  courts,  which  they  have  in 
some  instances,  subsequently  regretted. 
The  consideration  that  carriers  are  bound, 
at  all  events,  to  carry  such  parcels,  within 
the  general  scope  of  their  business,  as  are 
offered  to  them  to  carry,  will  make  an 
essential  difference  between  the  elfect  of 
notices  by  them,  and  by  others  who  have 
an  option  in  regard  to  work  which  they 
undertake.  In  the  former  case,  the  con- 
tractor having  no  right  to  exact  unreason- 
able terms,  his  giving  public  notice  that 
he  shall  do  so,  where  those  who  contract 
with  him  are  not  altogether  at  his  mercy, 
does  not  raise  the  same  presumption  of 
acquiescence  in  his  demands  as  arises  in 
those  cases  where  the  contractor  has  the 
absolute  right  to  impose  his  own  condi- 
tions. And  unless  it  be  made  clearly  to 
appear,  that  persons  contracting  with  com- 
mon carriers  expressly  consent  to  be  bound 
by  the  terms  of  such  notices,  it  docs  not 
a))pear  to  us  that  such  acquiescence  ought 
to  be  inferred."  And  see  Kimball  i\  Rut- 
land &  B.  E.  R.  Co.,  2G  Vt.  247.  The 
same  doctrine  is  held  in  Crouch  r.  North- 
western Ry.  Co.,  19  Law  Times  Rep.  90; 
Clark  V.  Taxton,  21  Wend.  153;  N.  J. 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  344  ;  Dorr  v.  N.  J.  Steam  Nav.  Co., 
4  Sandf.  13G;  Parsons  r.  Montcatli,  13 
Barb.  353  ;  Stoddard  v.  The  Long  Island 
Railway  Co.,  5  Sandf.  180  ;  Fish  v.  Chap- 
man, 2  Geo.  349  ;  Moses  v.  Boston  & 
Maine  E.  C.  4  Foster,  71.  See  ante,  n. 
{(J).  Some  of  our  courts,  however,  even 
since  Ilollistcr  r.  Nowlcn,  and  Cole  v. 
Goodwin  were  decided,  have  held  similar 
notices  valid.  But  they  have  generally 
done  so  with  reluctance,  and  upon  the 
ground  that  they  considered  themselves 
bound  bv  the  decisions  of  their  jiredeces- 
sors.  See  C.  &  A.  Railroad  Co.  r.  Bal- 
danf,  IG  Pcnn.  State  Rep.  G7  ;  Laing  v. 
Colder,  8  Barr,  479  ;  Bingham  v.  Rogers, 
6  W.  &  S.  500.  See  also,  Sager  r.  The 
Portsmouth,  &c.,  Railroad  Co.,  31  Maine, 
228.  We  think  there  cannot  be  much 
doubt  but  that  the  doctrine  so  firmly 
established  in  New  York,  and  in  the  Su- 
preme Court  of  the  United  States,  will 
generally  be  adopted  in  this  countr}-, 
wherever  the  question  still   remains  open. 


CH.  XII.] 


BAILMENT. 


*711 


sender,  would  undoubtedly  justify  the  carrier  who  proposed  to 
confine  himself  to  certain  departments,  or  to  exclude  *certain 
classes  of  goods,  and  in  accordance  therewith  refused  to  take 
parcels  of  the  excluded  description.  For  a  common  carrier  does 
not  necessarily  agree  to  take  all  sorts  of  goods,  any  more  than 
he  does  to  carry  thera  to  all  places.  An  express  between  Bos- 
ton and  New  York  does  not  agree  to  carry  a  load  of  hay,  or  a 


cargo   of  cotton. 


The  carrier  has   a  right  to  refuse  without 


notice  articles  which  obviously  differ  from  his  usual  course  of 
business,  and  he  has  also  a  right  to  define  and  limit  that  bnsi- 
ness,  and  give  notice  accordingly. 

So,  too,  he  has  a  right  to  say  to  all  the  world,  and  to  each 
sender,  that  he  will  not  carry  goods  beyond  a  certain  value  ;  or 
that  if  he  carries  such  goods  he  must  be  paid  for  it  by  a  pre- 
mium on  the  increased  risk.  This  is  reasonable  ;  and  it  is  con- 
sistent with  public  policy,  because  it  tends  to  give  the  carrier 
exact  knowledge  of  what  he  carries,  and  of  what  risks  he  runs, 
and  thus  to  induce  him  to  take  the  proper  care,  and  proportion 
his  caution  and  his  means  of  security  to  the  value  of  the 
goods.  (A) 


(h)  The  notices  now  alhuled  to  have 
often  been  confounded  with  those  which 
exempt  tlio  carrier  altsoiutely  from  liis 
liability,  and  which,  as  we  liave  seen  in 
the  last  note,  are  not  held  valid.  Hut  it 
is  very  imjiurtant  that  the  two  sliould  be 
ke])t  distinct.  We  have  seen  that  there 
are  but  two  cases  in  tlie  English  i)ooks, 
and  those  niat  pn'tis  eases,  in  wliich  the 
latter  liavc  been  exjjressly  sanctioned ; 
and  that  they  were  entirely  put  an  end  to 
by  the  Carriers  Act.  On  the  other  hand, 
the  former  were  sanctioned  by  the  courts 
at  an  earlier  date,  were  rccogniyA'd  in  a 
vast  iMinibfr  of  cases  ])revious  to  tlie  Car- 
riers Act,  were  estal)lishcd  and  regulated 
by  that  act,  and  have  never,  that  wc  arc 
aware  of,  been  repudiated  by  any  court  in 
this  country  or  in  Kngland.  The  case  of 
Nicholson  v.  Willan,  .')  East,  .507,  is  gen- 
erally considered  as  the  one  in  which  they 
were  first  saiiciioned  by  a  judicial  dc(isi(ni. 
There  the  defendant  was  a  coach  pro- 
prietor, ami  had  putilished  a  notice,  the 
purport  of  which  was  that  he  would  not 
be  accountable  for  any  jiackage  whatever, 
(if  lost  or  damaged,)  above  the  value  of 
5/.,   unless  insureil  and  paid  for  at   the 


time  of  delivery.  The  action  was  brought 
to  recover  for  the  loss  of  a  ])arccl  delivered 
to  the  defendant  to  carry,  containing 
goods  to  the  value  of  58/.  Xo  disclosure 
was  made  of  the  true  value  of  the  i)arcel, 
nor  was  any  extra  freight  paid  ;  aiul  the 
court  /ulil  that  tlie  defendant  was  pro- 
tected by  his  notice.  From  this  time  until 
the  passage  of  the  Carriers  Act,  cH'ect  was 
given  to  similar  notices  in  Harris  r.  I'ack- 
wood,  3  Taunt.  2G4,  (ISH))  ;  Heck  v. 
Evans,  16  East,  244,  (1812)  ;  Levi  r.  Wa- 
tei-house,  1  Trice,  280,  (181.'))  ;  Rodenham 
r.  Rennett,  4  id.  31,  (1817);  Smith  v. 
llorne,  8  Taunt.  144,  (1818)  ;  Birkctt  v. 
Willan,  2  15.  &  Aid.  356,  (1819);  Eat- 
son  v.  Donovan,  4  id.  21,  (1820) ;  Gar- 
nett  V.  Willan,  5  i<l.  .53,  (1821)  ;  Sleat  v. 
Fagg,  id.  .342,  (1822)  ;  DutV  c.  lUiM,  3 
Brod.  &  Bing.  177,  (1822);  Marsh  v. 
llorne,  5  H.  &  Cr.  322,  (1826)  ;  Brooke 
V.  Pickwick,  4  Bing.  218,  (1827)  ;  Ki- 
lev  r.  Home,  5  Bing.  217,  (1828); 
Bradley  r.  Waterhouse,  .M.  &  XI.  154, 
(1828),  and  many  other  cases.  In 
this  state  of  things,  the  Carriei-s  Act, 
11  Geo.  4,  and  1  Will.  4,  c.  68.  was 
passed.     It  is  entitled,  "An  Act  for  the 

[73U] 


712-713* 


THE   LAW    OF    CONTRACTS. 


[book  III. 


It  would  follow,  then,  that  where  the  carrier  interjDoses  such 
general  notice,  as  "  all  baggage  at  risk  of  owners,"  the  ^sender 


more  cfi'octual  Protection  of  Mail  Con- 
tractors, Staye-Coacli  Proprietors,  and 
other  common  Carriers  for  Hire,  aj^ainst 
the  Loss  of  or  Injury  to  Parcels  or  Pack- 
ages delivered  to  tliem  for  Conveyance  or 
Custody,  the  Value  and  Contents  of  which 
sliall  not  bo  declared  to  them  by  the 
Owners  thereof."  The  first  section  recites  : 
"  That  whereas,  by  reason  of  the  frequent 
practice  of  bankers  and  others  of  sending 
by  tiic  public  mails,  stage-coaclies,  wagons, 
A'ans,  and  other  public  conveyances  by 
land,  for  hire,  parcels  and  packages  contain- 
ing money,  bills,  notes,  jewelry,  and  other 
articles  of  great  value  in  small  compass, 
much  valuable  property  is  rendered  liable 
to  depredation,  and  the  responsibility  of 
mail  contractors,  stage-coach  proprietors, 
and  common  carriers  for  hire,  is  greatly 
increased  :  And  whereas  throngh  the  fre- 
quent omission,  by  persons  sending  such 
parcels  and  packages,  to  notify  the  value 
and  nature  of  tlie  contents  thereof,  so  as 
to  enable  such  mail  contractors,  stage- 
coach proprietors,  and  other  common  car- 
riers, l)y  due  diligence,  to  protect  them- 
selves against  losses  arising  from  their 
legal  resjKuisiliility,  and  the  difficulty  of 
fixing  parties  with  knowledge  of  notices 
published  by  such  mail  contractors,  stage- 
coach proprietors,  and  other  common  car- 
riers, with  the  intent  to  limit  such  respon- 
sibility, they  liave  become  exposed  to 
great  and  unavoidable  risks,  and  liave 
thereby  sustained  iieavy  losses ; "  and 
enacts  :  "  That  from  and  after  tlie  passing 
of  tliis  act,  no  mail  contractor,  stage-coach 
proprietor,  or  otlier  common  carrier  by 
land,  for  hire,  shall  be  lialtle  for  the  loss 
of,  or  injury  to,  any  article  or  articles,  or 
property  of  the  descriptions  following,  that 
is  to  say,  gold  or  silver  coin  of  this  realm 
or  of  any  foreign  state,  &c.,  (enumerating 
various  kinds  of  goods,)  contained  in  any 
parcel  or  package  wliich  shall  have  been 
delivered,  either  to  be  carried  for  hire,  or 
to  accompany  the  person  of  any  passenger, 
in  any  mail  or  stage-coach,  or  other  public 
conveyance,  when  the  value  of  such  article 
or  articles  or  property  albresaid,  con- 
tained in  such  parcel  or  ]iackage,  shall 
exceed  the  sum  of  10/.,  unless  at  the  time 
of  the  delivery  thereof  at  the  office,  ware- 
house, or  receiving-house  of  such  mail  con- 
tractor, stagc-couch  pro]n-ietor,  or  other 
common  carrier,  or  to  his,  her,  or  tlieir 
bookkeeper,  coacJunan,  or  other  servant, 

[740] 


for  the  purpose  of  being  carried,  or  of  ac- 
companying the  person  of  any  passenger 
as  aforesaid,  the  value  and  nature  of  sueli 
article  or  articles  or  property  shall  have 
been  declared  by  the  person  or  persons 
sending  or  delivering  the  same,  and  such 
increased  charge  as  hereinafter  mentioned, 
or  an  engagement  to  pay  the  same,  be  ac- 
cepted by  the  person  receiving  such  parcel 
or  package."  Sect.  2,  enacts :  "  That 
when  any  parcel  or  package  containing 
any  of  the  articles  above  specified  shall 
be  so  delivered,  and  its  value  and  contents 
declared  as  aforesaid,  and  such  value  shall 
exceed  the  sum  of  10/.,  it  shall  l>e  lawful 
for  such  mail  contractors,  s^ge-coach  pro- 
prietors, and  other  common  carriers,  to 
demand  and  receive  an  iiftreased  rate  of 
charge,  to  be  notified  by  some  notice 
aflSxed  in  legible  characters  in  some  public 
and  conspicuous  part  of  the  office,  ware- 
house, or  other  receiving-house  where  such 
parcels  or  packages  are  received  by  them 
for  the  purjjose  of  conveyance,  stating  the 
increased  rates  of  charge  required  to  be 
paid,  over  and  above  the  ordinary  rate  of 
carriage,  as  a  compensation  for  the  greater 
risk  and  care  to  be  taken  for  the  safe  con- 
veyance of  such  valuable  articles,  and  all 
persons  sending  or  delivering  parcels  or 
packages  containing  such  valuable  articles 
as  aforesaid,  at  sucli  office,  shall  be  bound 
by  such  notice  without  further  proof  of  the 
same  having  come  to  their  knowledge." 
Sect.  3  enacts  :  "  That  when  the  value  shall 
have  been  so  declared,  and  the  increased 
rate  of  charge  paid,  or  an  engagement  to 
pay  the  same  shall  have  been  accepted  as 
hereinbefore  mentioned,  the  ])crson  receiv- 
ing such  increased  rate  of  charge,  or  ac- 
cepting such  agreement,  shall,  if  thereto 
required,  sign  a  receipt  for  the  package  or 
parcel,  acknowledging  the  same  to  have 
been  insured,  which  receipt  shall  not  be 
liable  to  any  stamp  duty;  and  if  such  re- 
ceipt shall  not  be  given  when  required,  or 
such  notice  as  aforesaid  sliall  not  have 
been  affixed,  the  mail  contractor,  stage- 
coach proprietor,  or  other  common  carrier 
as  aforesaid  shall  not  have  or  be  entitled 
to  any  benefit  or  advantage  under  this  act, 
but  shall  be  liable  and  responsible  as  at 
the  common  law,  and  be  liable  to  refund 
the  increased  rate  of  charge."  Sect.  4 
enacts  :  "  That  from  and  after  the  first  of 
September  now  next  ensuing,  no  public 
notice  or  declaration  heretofore  made,  or 


CH.  xn.] 


BAILMENT. 


*714 


may  disregard  it,  and  the  baggage  will  be  at  the  risk  of  the 
carrier ;  or  he  may  expressly  refuse  to  be  bound  by  it,  *and  insist 


hereinafter  to  be  mndc,  shall  be  deemed 
or  construed  to  limit  or  in  anywiRU  attect 
the  liability  at  common  law  of  any  such 
mail  contractor,  stage-coach  proprietor,  or 
other  ])ul)lic  common  carrier  as  aforesaid, 
for  or  in  respect  of  any  articles  or  goods 
to  be  carried  and  conveyed  by  them,  but 
that  all  and  every  such  mail  contractors, 
stage-coach  proprietors,  and  otiier  com- 
mon carriers  as  aforesaid,  shall,  from  and 
after  the  1st  September,  be  liable  as  at  the 
common  law,  to  answer  for  the  loss  of  [or] 
any  injury  to  any  articles  and  goods  in 
respect  wlicreof  they  may  not  be  entitled 
to  the  benefit  of  this  act,  any  public  notice 
or  declaration  by  them  made  and  given 
contrary  thereto,  or  in  anywise  limiting 
such  liability,  notwithstanding."  Sect.  5 
enacts  :  "  Tliat  for  the  pm-jjoses  of  this  act, 
every  office,  warehouse,  or  receiving-house, 
which  shall  be  used  or  appointed  by  any 
mail  contractor  or  stage-coach  proprietor 
or  other  common  carrier  as  aforesaid,  for 
the  receiving  of  parcels  to  be  conveyed  as 
aforesaid,  shall  be  deemed  and  taken  to  be 
the  receiving-house,  warehouse,  or  office, 
for  such  mail  contractor,  stage-coach  pro- 
prietor, or  other  common  carrier,  and  that 
any  one  or  more  of  such  mail  contractors, 
stage-coach  proprietors,  or  common  car- 
riers, shall  i)e  lialile  to  be  sued  by  his,  her, 
or  their  name  or  names  only,  and  that  no 
action  or  suit  commenced  to  recover  dam- 
ages for  loss  or  injury  to  any  ])arcel,  ])ack- 
age,  or  person,  shall  abate  for  the  want 
of  joining  any  coproprietor  or  copartner 
in  such  mail,  stage-coach,  or  other  jiublic 
conveyance,  by  land,  for  hire,  as  afore- 
said." Sect.  0  enacts,  "  Tiiat  nothing  in 
this  act  contained  shall  extend  or  be  con- 
strued to  annul  or  in  anywise  affect  any 
special  contract  between  such  mail  con- 
tractor, stage-coach  proprietor,  or  common 
earner,  and  any  other  i)arties,  for  tlie  con- 
veyance of  goods  and  merchandises."  The 
act  contains  eleven  .sections,  but  the  other 
five  are  not  very  material  to  our  present 
inquiry.  We  sliall  Iiave  occasion  jjrescntly 
to  notice  some  decisions  upon  the  con- 
struction of  this  statute.  In  this  country 
very  few  cases  ai)]H'ar  to  have  arisen  upon 
notices  of  the  kind  that  we  are  now  s))eak- 
ing  of.  l)irln  may  be  found,  however, 
sustaining  them,  in  Orange  County  Bank 
r.  Brown,  9  Wend.  115,  and  in  Bean  i'. 
Green,  3  Fairf.  422,  and  they  were  very 
ably  vindicated  by  ilr.  Justice  Cvuxn,  iu 


Cole  V.  Goodwin,  19  Wend.  251.  Upon 
the  whole,  in  tiic  language  of  Mr.  Justice 
Rcdjkl'l,  "  we  regard  it  as  well  settled, 
that  tiie  carrier  may,  by  general  notice, 
brought  home  to  the  owner  of  the  things 
delivered  for  carriage,  limit  his  responsi- 
bility for  carrying  certain  commodities  be- 
yond the  line  of  his  general  business,  or 
he  may  make  his  responsibility  dependent 
upon  certain  conditions,  as  having  notice 
of  tlie  kind  and  (juantity  of  the  things  de- 
posited for  can'iage,  and  a  certain  reason- 
able rate  of  premium  for  the  insurance, 
paid,  beyond  the  mere  expense  of  car- 
riage." See  Farmers'  and  Mechanics' 
Bank  v.  Champlain  Trans.  Co.  23  Verm. 
186,  206.  —  It  remains  that  we  consider  to 
what  extent  a  carrier  may  exempt  liimself 
from  his  common  law  liability,  whether  by 
notice  or  by  special  contract.  This  ques- 
tion first  arose  in  the  cases  concerning 
notices.  Many  of  those  cases  we  have 
already  cited  in  this  note.  They  will  be 
found,  upon  examination,  to  exhibit  a  con- 
siderable degree  of  uncertainty  and  con- 
trariety of  o])inion  upon  the  ([uestion. 
Some  of  them  inclined  to  hold  that  a  non- 
compliance by  the  bailor  with  the  terms 
of  the  notice  was  a  fraud  on  his  part,  and 
consecjuently  that  the  carrier  was  liable 
for  notliing  short  of  direct  inalf<(is<tuce; 
other  cases,  and  the  greater  number,  held 
the  carrier  liable  for  ejroxs  nei/lifjeiire :  and 
others  still,  held  him  liable  for  onlimiri/  iit-g- 
lir/ence.  No  certain  rule  could  be  deiluced 
from  the  cases  until  Wyld  i\  Fickford,  8  M. 
&  W.  443.  In  that  case  the  wliole  subject 
was  elaborately  examined,  and  the  Court 
of  E.xehequer  declared  that  the  carrier, 
notwithstanding  his  notice,  was  bound  to 
use  ordinary  care.  Farke,  B.,  said  :  "  Upon 
reviewing  the  cases  on  this  subject,  tho 
decisions  and  flicla  will  not  be  found  alto- 
gether uniform,  and  some  uncertainty  still 
remains  as  to  the  true  ground  on  which 
cases  are  taken  out  of  the  operation  of 
these  notices.  In  Bo<lenham  r.  Benmtt, 
(4  Frice,  34,)  Mr.  Baron  ]\'oo<l  considers 
that  these  notices  were  introduced  for  the 
purpose  of  jirotecting  carriers  from  extra- 
ordinary events,  ami  not  meant  to  exempt 
them  from  due  and  ordinary  care.  On 
the  other  hand,  in  some  cases  it  has  been 
said  that  the  carrier  is  not  i)y  his  notice 
protected  from  the  con.seipienccs  of  mis- 
feasance, —  Lord  Ellenlxiroiirj/i,  in  Beck  v. 
Evans,  (16  East,  247) ;  and  that  the  true 

[741] 


715' 


THE   LAW    OF   CONTRACTS. 


[book  III. 


that  his  baggage  shall  be  carried  under  the  responsibihty  which 
the  law  creates ;  and  if  the  carrier  refuses  to  *take  the  goods,  he 


construction  of  the  words,  '  lost  or  dam- 
aged,' in  such  a  notice,  is,  that  the  carrier 
is  protected  from  the  consequences  of  neg- 
ligence or  misconduct  in  the  carriacje  of 
goods,  but  not  if  he  divests  himself  wholly 
of  the  charge  committed  to  his  care,  and 
of  the  character  of  carrier.  Bnijh'ij  and 
Holrojid,  J.  J.,  in  Garnett  v.  Willan,  (5  B. 
&  Aid.  57,  60).  In  many  other  cases  it  is 
said,  he  is  still  responsible  for  '  gross  neg- 
ligence ;'  but  in  some  of  them  that  term 
has  been  defined  in  such  a  way  as  to  mean 
ordinary  negligence,  (Story  on  Bailments, 
section  11,)  that  is,  the  want  of  such  care 
as  a  prudent  man  would  take  of  his  own 
property.  Best,  J.,  in  Batson  v.  Donovan, 
(4  B.  &  AM.  30,)  and  Dallas,  V,.  J.,  in 
Dufif  V.  Budd,  (.3  Brod.  &  B.  182).  The 
weight  of  authority  seems  to  be  in  favor 
of  the  doctrine,  that  in  order  to  render  a 
carrier  liable  after  such  a  notice,  it  is  not 
necessary  to  prove  a  total  abandonment  of 
that  character,  or  an  act  of  wilful  miscon- 
duct, but  that  it  is  enough  to  prove  an  act 
of  ordinar}'  negligence,  — gross  negligence, 
in  tlie  sense  in  which  it  has  been  under- 
stood in  the  last-mentioned  cases  ;  and 
that  the  elfect  of  a  notice,  in  the  form  stat- 
ed in  tiic  plea,  is  that  the  carrier  will  not, 
unless  he  is  paid  a  premium,  be  respon- 
sible for  all  events  (other  than  the  act  of 
God  and  the  Queen's  enemies,)  by  which 
loss  or  damage  to  the  owner  may  arise, 
against  which  events  he  is  by  common  law 
a  sort  of  insurer  ;  but  still  he  undertakes 
to  carrij  from  one  place  to  another,  and 
for  some  reward  in  respect  of  the  carriage, 
and  is  therefore  Ijound  to  use  ordinary 
care  in  the  custody  of  the  goods,  and  their 
conveyance  to  and  delivery  at  their  place 
of  destination,  and  in  providing  proper 
vehicles  for  tlicir  carriage ;  and  after  such 
a  notice,  it  may  be  that  the  burden  of  pi-oof 
of  damages  or  loss  by  the  want  of  such 
care  would  lie  on  the  plaintiff."  We  are 
not  aware,  however,  that  any  of  the  Eng- 
lish cases  have  expressly  held  tliat  it  was 
incompetent  for  a  carrier  to  exempt  him- 
self by  notice  from  the  consequences  of 
his  own  negligence,  if  he  used  terms  which 
could  receive  no  other  reasonable  construc- 
tion. But  however  this  may  be,  a  series 
of  English  cases  since  the  Carriers  Act, 
and  within  the  last  two  years,  seem  to 
have  settled  the  point  there  that  it  is  com- 
petent for  a  carrier  by  an  express  contract 
between  himself  and  his  bailor  to  exempt 

[742]       . 


himself  from  liability  for  any  thing  short 
of  actual  malfeasance.  The  first  of  these 
cases  which  it  is  necessary  to  cite  is  that 
of  Chippendale  v.  The  L.  «&  Y.  Railway 
Co.,  7  E.  L.  &  E.  395,  in 'the  Queen's 
Bench.  There  the  plaintiff  who  had  some 
cattle  conveyed  by  a  railway  company, 
received  for  them  a  ticket,  which  he 
signed,  containing  the  terms  on  whicli  the 
railway  company  carried  the  cattle.  At 
the  foot  of  the  ticket  there  was  a  clause  : 
"  N.  B.  —  This  ticket  is  issued  subject  to 
the  owner  undertaking  all  risk  of  convey- 
ance whatever,  as  the  comjiany  Avillnotbc 
liable  for  any  injury  or  damage,  howso- 
ever caused,  and  occurring  to  live-stock  of 
any  description  travelling  upon  the  L. 
and  Y.  railway,  or  in  their  vehicles." 
The  plaintiff  saw  the  cattle  put  into  the 
truck.  During  the  journey  some  of  the 
cattle  got  alarmed  and  broke  out  of  the 
truck  and  were  injured.  The  truck  was 
so  defectively  constructed  as  to  be  unfit 
and  unsafe  for  the  conveyance  of  cattle. 
Held,  that  there  was  no  implied  stipula- 
tion that  the  truck  should  be  fit  for  the 
conveyance  of  cattle ;  and  that  the  com- 
pany were  protected  by  the  terms  of  the 
ticket  from  liability  to  the  plaintiff  for  the 
damage  to  the  cattle.  It  should  be  ob- 
served, however,  that  Erie,  J.,  places  some 
stress  upon  the  fact  that  the  contract  was 
for  the  carriage  of  live-stock.  He  says  : 
"  I  think  that  a  limitation,  however  wide 
in  its  terms,  being  in  respect  of  live-stock, 
is  reasonable ;  for  though  domestic  ani- 
mals might  be  carried  safely,  it  might  be 
almost  impossible  to  carry  wild  ones  with- 
out injury."  See  also,  Morville  v.  The 
Great  Nortliern  Railway  Co.,  10  E.  L.  & 
E.  360.  Then  followed  the  cases  of  Austin 
V.  The  M.  S.  &  L.  Railway  Co.,  11  E.  L. 
&  E.  506,  in  the  Common  Bench,  and 
Carr  v.  The  L.  &  Y.  Railway  Co.,  14  E.  L. 
&.  E.  340,  in  the  Exchequer,  both  decided 
the  same  day.  In  the  former  case  a  rail- 
way company,  letting  trucks  for  hire,  for 
the  conveyance  of  horses,  delivered  to  the 
owner  of  the  horses  a  ticket,  in  which  it 
was  stated  that  the  owners  were  to  under- 
take all  risks  of  injury  by  conveyance  or 
other  contingencies  ;  and  further  stipulat- 
ed that  the  company  would  not  be  liable 
for  any  damages,  however  caused,  to 
horses  or  cattle.  The  horses  received 
damage  through  the  breaking  of  an  axle, 
which  was   attributable  to    the  culpable 


CH.  XII.] 


BAILMEXT. 


*716 


will  render  himself  liable  to  an  action.     But  if  the  notice  be 
only  a  limited  and  qualified  notice,  and  in  *itsclf  reasonable,  the 


negligence  of  the  company's  servant?.  A 
verdict  having  been  fuun<l  for  the  plaintiff, 
a  rule  7ilsi  was  obtained  for  arresting  the 
judgment.  Upon  the  argument,  the  coun- 
sel in  su])port  of  the  rule  insisting  that  the 
defendants  were  protected  from  all  lialjil- 
ity  by  their  notice,  Jarvis,  C.  J.,  said : 
"  Must  they  not  act  as  common  carriers, 
except  so  far  as  they  limit  tlieir  liai)il- 
ity  by  the  ticket  ?  It  seems  an  alarm- 
ing proposition  to  say  that  tliey  can  ex- 
empt themselves  from  all  liability.  If  they 
are  allowed  to  do  in  respect  of  goods,  why 
should  they  not  be  able  to  do  it  in  the  case 
of  passengers  ?  Supposing  they  were  to  be 
treated  as  gratuitous  bailees,  would  they 
not  be  lialile  for  gross  negligence  V  But 
after  taking  time  to  consider,  the  rule  was 
made  absolute,  Cressuxll,  J.,  delivering 
the  Judgment  of  the  court  in  an  elaborate 
0])inion.  In  Carr  v.  The  L.  &  Y.  llailroad 
Co.,  the  plaintiff  being  the  owner  of  a 
horse  delivered  it  to  the  defendants,  a  rail- 
way company,  to  be  carried  on  their  rail- 
way, subject  to  conditions  which  stated 
that  the  owncTs  undertook  all  risks  of  con- 
veyance whatsoever,  as  tlie  comjtany  would 
not  be  responsible  for  any  injury  or  dam- 
age, however  caused,  accruing  to  live-stock 
of  any  descri|)tion  travelling  on  the  rail- 
way. The  iiorse  having  been  injured  by 
the  horsel)ox  being  propelled  against  some 
trucks  through  the  gross  negligence  of  the 
company:  "  Ilchl,  litisiktntif  Plait,  B., 
that  the  company,  under  the  terms  of  the 
contract,  were  not  rcsponsiltle  for  the  in- 
jury. But  f/wfreper  Aldason,  B.,  whether 
the  company  would  have  been  responsible 
if  the  horse  had  l>eeu  stolen.  Parke,  B., 
said  :  "  Tlie  <juestion  in  this  case  turns 
u])on  the  notice  which  was  given  by  the 
defendants,  and  which  forms  the  founda- 
tion of  the  contract  between  the  parties. 
It  is  ])laiu  that  since  the  passing  of  the 
Carriers  Act,  it  is  competent  for  carriers 
to  make  a  special  contract.  Siicii  a  con- 
tract was  much  in  this  case,  and  the  only 
iiuestion  is  as  to  the  meaning  of  that  con- 
tract. According  to  the  old  cases,  there 
was  this  limitation  u])on  the  construction 
of  carriers'  notices,  tliat  unless  a  carrier 
excluded  his  liability  in  express  terms,  ac- 
cording to  the  ordinary  terms  of  the  notice, 
he  would  lie  responsible  for  gross  negli- 
gence. Tlie  practice  of  a  carrier  protect- 
ing himself  i>y  notice,  was  j)ut  an  end  to 
by  the  Carriers  Act Trior  to  the 


establishment  of  railways  the  court  were  in 
the  habit  of  construing  contracts  between 
individuals  and  carriers,  much  to  the  dis- 
advantage of  the  latter.  Before  railways 
were  in  use  the  articles  conveyed  were  of 
a  different  description  from  what  they  are 
now.  Sheep  and  other  live  animals  are 
now  carried  upon  railways,  and  horses 
which  were  used  to  draw  vehicles  are  now 
themsel^-es  the  objects  of  conveyance. 
Contracts,  therefore,  are  now  made  with 
reference  to  the  new  state  of  things,  and  it 
is  very  reasonable  that  carriers  siiould  be 
allowed  to  make  agreements  for  the  pur- 
pose of  protecting  themselves  against  the 
new  risks  to  which  they  are  in  modern 
times  exposed.  Horses  are  not  conveyed 
on  railways  without  much  risk  and  dan- 
ger; tlie  rapid  motion,  the  noise  of  the 
engine,  and  various  other  matters  arc  apt 
to  alarm  them  and  to  cause  them  to  do 
injury  to  themselves.  It  is,  therefore, 
very  reasonable  that  caniers  should  pro- 
tect themselves  against  loss  by  making 
special  contracts.  The  question  is,  whether 
they  have  done  so  here.  The  jury  have 
found  that  the  defendants  have  been  guilty 
of  gross  negligence,  and  that  nmst  be  taken 
as  a  fact.  In  my  opinion,  the  owner  of 
the  horse  has  taken  njion  himself  the  risk 
of  conveyance,  the  railway  company  lieing 
bound  merely  to  find  caiTiages  and  pro- 
pelling ])ower;  the  terms  of  the  contract 
ajijiear  to  me  to  show  this.  The  comjiany 
say  tiiey  will  not  be  resjjonsible  for  any 
injury  or  damage  (however  caused)  oc- 
curring to  live-stock  of  any  description, 
travelling  upon  their  railway.  This,  then, 
is  a  contract,  by  virtue  of  which  the  ])lain- 
tiff  is  to  stand  tlie  risk  of  acciilent  or  in- 
jury, and  certainly,  when  we  look  at  the 
nature  of  the  things  conveyed,  there  is 
nothing  unreasonable  in  the  arrangement. 
In  the  case  of  Austin  v.  The  Manchester, 
Slieflield  &  Lincolnshire  Bailwav  Com- 
j.any,  20  Law  J.  Kep.  (\.  S.)  Q.'B.  440, 
(S.  C.  .J  Kng.  licps.  32'J,)tlic  lanunageof 
the  contract  was  different  from  the  present, 
but  not  to  any  great  extent.  (His  lonl- 
ship  stated  the  case.)  In  that  case,  the 
accident  was  occasioned  by  the  wheels  not 
being  ]uoperly  greased  ;  in  the  incsent 
case,  the  carriage  that  containeil  the  plain- 
titf's  horse  was  driven  against  another 
carriage.  We  ought  not  to  fritter  away 
the  meaning  of  contracts  merely  for  the 
purpose  of  making  men  careful.     That  is 

[743] 


716- 


TIIE    LAW    OF    CONTRACTS. 


[book  III. 


sender,  having  knowledge  of  it,  is  bound  by  it.  Nor  can  he  in- 
sist that  the  carrier  shall  receive  and  transport  his  goods  without 
reference  to  it. 


a  matter  that  we  arc  not  hound  to  correct. 
The  legislature  may,  if  they  please,  put  a 
stop  to  contracts  of  this  kind,  but  we  have 
nothing  to  do  with  them  except  to  inter- 
pret them  when  they  arc  made."  Alder- 
son,  B.  :  "  The  defendants  in  this  case  un- 
dertook to  carry  the  goods  in  question  on 
certain  terms.  The  question  then«js,  what 
are  those  terms  ?  It  is  clear  that  they  are 
such  as  the  defendants  might  lawfully 
make.  It  is  plain  to  me  that  they  under- 
took to  carry  the  horse  at  the  risls.  of  the 
plaintiff.  Tlie  words  are,  '  the  oAvners 
undertaking  all  risk  of  conveyance  what- 
soever.' Now,  under  those  terms,  a  ques- 
tion might  be  raised  whether  the  injury 
contemplated  was  such  as  must  issue  in 
injury  to  the  thing  conveyed  ;  so  that  a 
doulit  might  arise  whether  the  case  of  the 
horse  being  stolen  was  contemplated,  as 
under  such  circumstances  the  accident 
would  not  issue  in  damage  to  the  horse. 
But  that  question  would  not  arise  here,  as 
in  this  case  the  horse  itself  has  been  in- 
jured. The  result  is,  that  if  there  has  been 
gross  negligence,  on  the  part  of  the  de- 
fendants, they  are  protected  against  lia- 
bility l)y  virtue  of  the  words  of  the  con- 
tract." Piatt,  B.  :  "  The  declaration 
states  that  the  defendants  were  guilty  of 
gross  negligence,  and  that  fact  was  proved. 
TliC'  f/raniincn  of  the  charge  is  the  gross 
negligence.  Now,  undoubtedly,  since  the 
establishment  of  railways,  new  subjects  of 
conveyance  have  arisen.  Formerly,  horses 
were  seldom  carried,  but  now  they  are 
ordinarily  conveyed  by  the  trains.  It  is, 
therefore,  said  that  new  stipulations  are 
necessary  to  guard  carriers  from  risks 
which  are  incidental  to  this  new  mode  of 
conveyance.  It  is  suggested  tliat  the  ani- 
mal may  be  alarmed  by  the  noise  of  the. 
engine,  by  the  speed  of  the  carriages,  and 
by  various  other  causes,  and  that  unless 
we  take  upon  ourselves  the  office  of  legis- 
lation, this  ticket  absolves  the  carriers 
from  all  responsibility.  I  own  I  am 
startled  at  such  a  proposition,  and  consid- 
ering the  high  authority  by  which  it  is 
supported,  I  feel  I  ought  to  doubt  and  to 
distrust  my  own  opinion.  But  I  am 
bound  to  say  that  I  am  not  satisfied  that 
the  language  of  this  ticket  absolves  tlie 
railway  company  from  all  liability  for 
damage.     I  cannot  help  thinking  that  the 

[744] 


owner  of  the  goods  never  dreamed  of  such 
a  thing  when  he  signed  this  contract.  la 
truth,  this  accident  had  notliing  to  do  with 
the  conveyance  of  the  horse.  The  acci- 
dents referred  to  arc  those  which  occur 
whilst  the  article  is  in  a  state  of  locomo- 
tion. The  case  of  gross  negligence,  as  it 
seems  to  me,  is  not  pointed  at  by  this  con- 
tract." Martin,  B.  :  "I  agree  in  opinion 
with  my  brothers  Parke  and  Alderson. 
This  is  the  case  of  a  special  contract  which 
the  plaintiff  has  ado])tcd  and  assented  to. 
Without  doubt,  at  common  law,  a  carrier 
is  entitled  to  make  a  special  contract.  If, 
indeed,  he  refuses  to  carry  goods,  except 
on  the  terms  of  a  special  contract,  he  is 
liable  to  an  action  ;  but  if  he  makes  a 
special  contract  it  must  be  abided  by.  The 
Carriers  Act  says  that  a  special  contract 
may  be  made.  It  is,  then,  our  duty  to 
see  what  contract  the  parties  have  made. 
Insurex's  are  answerable  for  gross  negli- 
gence, and  if  goods  may  be  insured,  others 
may  contract  that  they  will  not  be  answer- 
able for  their  own  gross  negligence.  In 
this  case,  the  language  used  by  the  parties 
cannot  be  stronger  than  it  is.  I  am  unable 
to  say  what  was  passing  in  the  mind  of 
the  owner  of  the  horse.  I  am  to  look 
only  at  the  terms  of  the  notice,  and  if  the 
carrier  had  been  desirous  of  preparing  a 
contract  by  which  he  would  get  rid  of  his 
liabilit}'  in  respect  of  gross  negligence,  he 
could  not  have  used  more  apt  words  than 
those  that  are  contained  in  this  notice. 
With  i-cspect  to  the  argument  of  inconven- 
ience, the  answer  is,  that  we  have  no- 
thing to  do  except  to  carry  out  this  con- 
tract ;  tlic  parties  concerned,  and  not  our- 
selves, are  to  judge  of  the  inconvenience. 
If  we  hold  the  cai-riers  in  this  case  respon- 
sible for  gross  negligence,  we  shall  place 
them  in  the  situation  of  insurers  and  un- 
derwriters. There  arc,  indeed,  inconven- 
iences attending  cither  mode  of  constru- 
ing the  contract,  but,  in  my  opinion,  the 
defendants  are  not  answerable  under  tliis 
contract  for  any  risk  arising  from  gross 
negligence."  In  this  country,  however,  it 
would  seem  to  be  pretty  nearly,  if  not 
quite  settled,  that  it  is  incompetent  for  a 
carrier,  cither  by  notice  or  express  con- 
tract, to  exempt  liimsclf  from  liability  for 
his  own  negligence.  The  strongest  case 
that  wc  have  seen  to  this  efieet  is  the  late 


CH.  XII.] 


BAILMENT. 


717 


The  question   has  arisen,  whether,  where  a  reasonable  and 
legal  notice  has  been  given  to  the  sender,  there   still  rests  on 


case  of  Sagcr  r.  The  Portsmouth,  &c.,  R. 
R.  Co.,  31  Maine,  228.  There  the  de- 
fendants liad  transported  the  phiintirt's 
horse  from  Boston  tt>  I'orthmd.  It  was 
upon  a  cold  day  in  Noveinl)er.  The  liorse 
was  carried  in  an  open  car,  and  suffered 
serious  injury  from  the  exposure  to  tlie 
cohl.  Tliis  action  was  brouuht  to  recover 
daniafjes  for  that  injury.  The  defendants 
introduced  a  paper  sijrned  by  the  plaintiff, 
whereliv  lie  agreed  to  exonerate  the  com- 
pany from  all  damages  that  might  happen 
to  any  liorses,  oxen,  or  other  live-stock, 
that  he  should  send  over  the  company's 
road  ;  meaning  thereby,  that  he  took  the 
risk  upon  himself  of  aU  and  any  damages 
that  might  happen  to  his  horses,  cattle, 
&c.  ;  and  that  he  would  not  call  u]ion 
said  com])any  or  any  of  their  agents  for 
any  damages  whatever.  At  the  trial,  the 
learned  judge  instructed  tlie  jury  that  tliis 
contract  would  not  exempt  the  company 
from  liability  for  their  own  malfeasance, 
misfeasance,  or  negligence.  And  this  in- 
struction was  held  correct.  Shcplej),  C. 
J.,  after  speaking  of  the  construction  put 
upon  notices  by  the  English  courts,  said  : 
"  The  notices  were  usually  given  in  terms 
so  general,  that  a  literal  construction  of 
the  contract  thus  arising  out  of  them, 
would  have  exonerated  the  carriers  from 
liability  for  their  own  misfeasance  or  neg- 
ligence, and  for  that  of  their  servants. 
Yet  the  well-established  construction  of 
them  has  been,  that  they  were  not  thereby 
relieved  from  their liabilit}-  to  make  com- 
pensation for  losses  thus  occasioned." 
Tile  learned  judge  then  jiroceeded  to  an 
examination  of  the  authorities  ;  and,  hav- 
ing stated  that  the  court  had  formerly  de- 
clared that  the  power  (jf  carriers  to  limit 
the  liability  imposed  upon  them  by  law 
should  not  be  favored  or  extended,  he 
continued :  "  If  a  literal  construction  of 
the  agreement  signed  by  the  ])laintitf 
would  exonerate  the  defendants  from 
losses  occasioned  by  the  negligence  of  their 
servants,  it  will  be  ]ieiceivcd  that  it  coijld 
not  be  jiermitted  to  have  that  etfect  with- 
out a  violation  of  established  rules  of  con- 
struction, and  without  a  <lisregard  of  the 
declareil  intention  of  this  court  not  to  ex- 
tend the  restriction  of  the  liability  of  com- 
mon carriers.  The  very  great  danger  to 
l)c  anticipated,  by  pennitting  them  to 
enter  into  contracts  to  be  exempt  from 
losses  occasioned  by  miseouduet  or  negli- 

VOL.  I.  63 


gence,  can  scarcely  be  overestimated.  It 
would  remove  the  principal  safeguard  for 
the  preservation  of  life  and  property  in 
such  conveyances.  It,  however,  rcciuires 
no  forced  construction  of  that  agreement, 
to  regard  it  as  eti'ectual  to  jilace  the  de- 
fendants in  the  jiosition  of  bailees  for 
hire,  and  as  not  exonerating  them  from 
liability  for  losses  occasioned  by  misfeas- 
ance or  negligence.  The  latter  clause, 
'  we  will  not  call  upon  the  railroad 
company  or  any  of  their  agents  for  any 
damages  whatsoever,'  considered  without 
reference  to  the  preceding  language,  would 
be  sufficiently  broad  to  excuse  them  from 
making  comjiensation  for  losses  occasioned 
by  wilful  misconduct.  It  is  most  obvious 
that  such  could  not  have  been  the  inten- 
tion ;  and  that  the  true  meaning  and  in- 
tention was,  that  they  would  not  call  ujion 
them  for  any  damages  whatsoever,  '  that 
may  happen  to  any  horses,  oxen,  or  any 
other  live-stock,  that  we  send  or  may  send 
over  said  comjiany's  railroad.'  The  in- 
tention of  the  parties,  by  the  use  of  the 
language  contained  in  this  last  clause,  is 
then  atteni]itcd  to  be  cx])laiiicd  as  fol- 
lows :  —  meaning  by  this,  that  we  will 
take  the  risk  upon  ourselves  of  all  and  any 
damages  that  may  liappen  to  our  horses, 
cattle,  &c.  The  meaning  of  damages 
happening  to  live  animals  is  to  be  sought. 
The  word  '  hap|)en  '  is  defined  by  the 
words,  to  come  by  chance,  to  fall  out,  to 
befall,  to  come  unex])ectcdly.  An  acci- 
dent, or  that  which  happens  or  comes  by 
chance,  is  an  event  which  occurs  from  an 
unknown  cause,  or  it  is  the  unusual  effect 
of  a  known  cause.  This  will  exclude  an 
event  ])r()duecd  by  misconduct  or  negli- 
gence, for  one  so  produced  is  ordinarily 
to  be  expected  from  a  known  cause.  Mis- 
conduct or  negligence  under  such  circum- 
stances would  usually  be  productive  of 
such  an  event.  Lord  /Cllciihoront/li,  in  the 
ease  of  Lyon  v.  Mells,  (5  Last,  428,) 
speaking  of  what  '  may  or  may  not  hap- 
)ien,'  explains  it  as  'that  which  may  arise 
iVom  accident  and  depends  on  chance.' 
An  injury  occasioned  by  negligence,  is  the 
etfect  ordinarily  to  be  expected  as  the 
consequence  of  that  negligence,  without 
reference  to  any  accident  or  chance.  A 
correct  construction  of  the  agreement  will 
not  therefore  relieve  the  defendants  from 
their  liability  for  losses  occasioned  by  the 
misfeasance  or  ucgligcnec  of  their  scr- 

[745] 


718 


THE    LAW    OP    CONTRACTS. 


[book   III. 


the  carrier  the  obligation  of  a  special  inquiry  ;  so  that  without 
such  inquiry  the  sender  may  transmit  or  the  passenger  may 
take  his  goods  in  silence,  and  have  them  covered  by  the  same 
responsibility  as  if  he  had  complied  with  the  notice,  and  had 
stated  the  extra  value  of  the  goods,  and  paid  the  extra  price. 
We  cannot  doubt  that  the  weight  of  authority,  as  of  reason  and 
of  justice,  is,  that  such  notice  makes  such  inquiry  unnecessary, 
and  that  the  owner  of  the  goods  would  in  such  case  be  consid- 
ered either  as  taking  the  risk  upon  himself,  or  as  endeavoring 
to  cast  it  fraudulently  upon  the  carrier,  (i) 


vants."  So  in  Ecno  v.  Hogan,  12  B. 
Moiir.  63,  the  cai-ricrs  received  a  box  of 
glass,  with  a  clause  in  tiie  bill  of  lading, 
that  they  should  not  be  "  accountable  for 
breakage."  Oa  its  arrival  at  the  place  of 
destination,  the  glass  was  found  broken 
into  small  fragments,  which  was  proved  to 
have  been  caused  by  the  gross  negligence 
of  the  defendant  or  his  servants.  The 
court,  while  admitting  the  validity  of  the 
s])ecial  contract,  held  that  its  provisions 
did  not  apply  to  injuries  arising  from  gross 
negligence.  Opinions  and  dicta  to  the 
same  effect  will  be  found  in  Dorr  v.  N.  J. 
Steam  Navigation  Co.  4  Sandf.  136; 
Stoddard  r.  Ijong  Island  Railroad  Co.  5 
Sandf.  180  ;  Laing  v.  Colder,  8  Barr,  479  ; 
N.  J.  Steam  Navigation  Co.  r.  Merchants' 
Bank,  6  How.  344  ;  Slocum  v.  Fairchild, 
7  Hill,  292 ;  Swindler  v.  Hilliard,  2  Rich. 
286;  Parsons  v.  Montcath,  13  Barb.  353; 
Stoddard  v.  Long  Island  Railroad  Co.  5 
Sandf.  180;  Camden  &  Amboy  Railroad 
Co.  V.  Baldauf,  16  Pcnn.  State  Rep.  67; 
Pennsylv.  R.  R.  Co.  v.  McCloskev's  Adm. 
23  Pcim.  St.  Reps.  526.  See  "also  the 
notes  of  the  learned  American  editors  to 
Austin  V.  Tiie  M.,  S.,  &  L.  Railway  Co. 
11  E.  L.  &  E.  506,  and  Carr  v.  The  L.  & 
Y.  Railway  Co.  14  id.  340.  See  also, 
Sliaw  7-.  York  &  North  Midland  Railway, 
13  Q.  B.  353 ;  Morville  v.  Great  Northern 
Railway  Co.  10  E.  L.  &  E.  .366.— In 
England  it  lias  been  held  after  much  con- 
sideration tliat  notices  published  in  pur- 
suance of  the  Carriers  Act,  if  not  com]ilicd' 
with,  exempt  the  carrier  from  liability  for 
qross  negligence.  Hinton  v.  Di!)bin,  2  Q. 
B.  646.  Sec  also,  Owen  ;■.  Burnett,  2  Cro. 
&  M.  353. 

(/)  It  would  1)e  of  no  avail  for  a  carrier 
to  ]in!)lish  a  notice  if  he  was  still  bound 
to  make  a  special  inquiry ;  for  this  he  may 

[74G] 


do  without  publishing  a  notice,  and  the 
bailor  must  inform  him  correctly,  at  his 
peril.  That  a  notice  brought  to  the 
knowledge  of  the  bailor  dispenses  with 
any  further  inquiry,  see  Batson  v.  Dono- 
van, 4  B.  &  Aid.  21  ;  Marsh  v.  Home,  5 
B.  &  Cr.  322;  Duff  r.  Budd,  3  Brod.  & 
Bing.  177  ;  Harris  v.  Packwood,3  Taunt. 
264 ;  Bodenliam  v.  Bennett,  4  Price,  31  ; 
Garnctt  v.  Willan,  5  B.  &  Aid.  53;  Slcat 
V.  Fagg,  id.  342.  But  see  the  remarks  of 
Bi'onson,  J.,  contra,  in  Hollister  v.  Nowlen, 
19  Wend.  234.  So  under  the  Carriers 
Act,  it  is  held  to  be  tlie  duty  of  the  sender 
of  goods  therein  enumerated,  and  exceed- 
ing £10  in  value,  to  take  the  initiative  by 
giving  notice  to  the  cairier  of  tiieir  value 
and  nature,  in  order  to  charge  the  latter 
in  respect  of  tlieir  loss  ;  and  this  whether 
the  goods  be  delivered  at  the  office  of  the 
carrier  or  not.  Baxendale  v.  Hart,  9  E. 
L.  &  E.  505,  6  id.  468.— But  tiie  earner 
will  be  lield  to  very  strict  proof  that  the 
notice  was  brought  to  the  knowledge  of 
the  bailor.  Hollister  v.  Nowlen,  10  Wend. 
234;  Brooke  v.  Pickwick,  4  Bing.  218; 
Bean  ?'.  Green,  3  Fairf.  422  ;  Riley  v. 
Home,  5  Bing.  217;  Clayton  v.  Hunt, 
3  Camp.  27  ;  Cobden  v.  Bolton,  2  id.  108  ; 
Butler  V.  Heane,  id.  415  ;  Kerr  v.  Willan, 
2  Stark.  53  ;  Davis  v.  Willan,  id.  279. 
In  Camden  &  Amboy  Railroad  Co.  v. 
Baldauf,  16  Penn.  State  Rej).  67,  where 
the  notice  was  in  the  English  language, 
and  the  passenger  was  a  German,  who  did 
not  understand  English,  it  was  held  in- 
cumlient  on  the  carrier  to  prove  that  the 
passenger  had  actual  knowledge  of  the 
limitation  in  the  notice.  But  the  strongest 
case  to  be  found  upon  this  point  is  that  of 
Brown  v.  Eastern  Railroad  Co.,  decided 
by  the  Supreme  Court  of  Massachusetts, 
Jiarch  Term,  1851,  a  brief  note  of  which 


CH.  XII.]  BAILMENT.  719-*720 


SECTION    XV. 

OF    FRAUD. 

All  fraud,  or  wilful  misrepresentation,  or  intentional  conceal- 
ment, on  the  part  of  the  sender  of  goods,  or  of  the  passenger, 
extinguishes  the  liability  of  the  common  carrier,  so  far  as  it  is 
affected  by  such  misconduct;  and  this  must  be  equally  true 
whether  the  fraud  consists  in  the  disregard  of  a  notice,  or, 
where  there  is  no  notice,  of  an  intention  to  cast  upon  the  car- 
rier a  responsibility  which  he  is  not  obliged  to  assume,  which 
he  does  not  know  of,  and  against  which  he  cannot  therefore 
take  the  proper  precautions,  [j) 

•Indeed,  the  principle  that  the  carrier  is  bound  only  by  a 
responsibility  which  he  knows  and  can  provide  for,  seems  to  be 
the  principal  cause  of  a  recent  modification  of  his  liability  in 
respect  to  the  baggage  of  a  passenger,  which  appears  now  to 
be  quite  well  settled.  It  may  be  stated  thus  ;  the  common  car- 
rier of  passengers  is  not  liable  as  such  for  the  loss  of  their  bag- 
gage, beyond  that  amount  which  he  might  reasonably  suppose 
such  passenger  would  carry  with  him ;  nor  for  property  such  as 
is  not  usually  included  within  the  meaning  of  baggage.  Thus, 
not  for  goods  carried  by  way  of  merchandise  ;  (k)  nor  for  a 
larger  sum  of  money  than  the  passenger  might  reasonably  take 

is  given  in  6  Law  Rep.  N.  S.  39.  It  ^vas  Hart,  9  E.  L.  &  E.  506,  6  id.  468.— So 
an  action  of  assumpsit  for  lost  lufis^ige.  tlic  notice  must  be  clear  and  explicit,  and 
There  was  a  notice  printed  on  the  I)ack  of  if  ambiguous  will  be  construed  against  the 
the  passage-ticket  given  to  the  ])laiutiff,  canier.  Beckman  v.  Shouse,  5  Hawle, 
that  the  defendants  would  not  be  rcspon-  179;  Camden  &  Amboy  Railroad  Co.  r. 
sible  beyond  a  specified  sum  ;  but  no  other  IJalilauf,  10  Penn.  State  Rep.  67  ;  Barney 
notice  was  given,  nor  was  her  attention  v.  Prentiss,  4  11.  &  Johns.  .317.  So  if 
called  to  tiiis.  Hi  Id,  that  if  a  coinuKm  there  arc  two  notices,  he  will  be  bound 
carrier  can  limit  his  responsibility  in  this  by  the  one  le.-ist  beneficial  to  him.  Cob- 
way,  it  must  Ik!  clearly  shown  tiiat  the  den  v.  Bolton,  2  Camp.  108 ;  Munn  i*. 
other  party  is  fully  informed  of  the  terms  Baker,  2  Stark.  2.55. 
and  effect  of  the  notice  ;  and  that  the  facts  (  ;  )  GiI)bon  r.  Paynton,  4  Burr.  2298; 
in  this  case  did  not  furnish  that  certain  Kenrig  v.  Eggleston,  Alcyn,  9.'} ;  Tylv  v. 
notice  which  must  be  given  to  exonerate  Jlorricc,  Carth.485  ;  Anon,  cited  by //a/e, 
such  carrier  from  his  liaiiility.  This  ques-  C.  J.,  in  Morse  r.  Slue,  1  Vent.  238; 
tion  is  put  an  end  to  in  England  iiy  the  Titchburne  r.  White,  1  Str.  145.  And 
Carriers  Act,  the  mere  pul)licatioii  in  pur-  see  Batson  r.  Doiiavan,  4  B.  &  Aid.  22. 
suance  of  the  statute  being  held  to  be  (i)  Therefore  the  word  "  baggage  "  has 
constructive  notice  to  all.     Baxendalc  v.  been  held  not  to  include  a  trunk  contain- 

[747] 


721*-722* 


THE   LAW    OF   CONTRACTS. 


[book  III. 


on  such  a  journey  for  his  expenses,  (l)  *But  thpre  may  be 
special  articles,  as  fishing  gear,  or  sporting  apparatus,  which  one 
carries  for  his  amusement ;  (in)  and  in  *these  and  other  cases  it 


tairiing  viiluahlc  mcrcliandise  and  nothing 
else,  although  it  did  not;  appear  that  tlie 
plaintiff  had  any  otiier  trunk  with  him. 
Pardee  v.  Drew^  25  AVend.  459.  So  in 
Hawkins  i\  Hoffman,  G  Hill,  586,  it  was 
held  that  the  term  "haggage"  did  not 
embrace  samples  of  merchandise  carried 
by  a  passenger  in  a  trunk,  with  a  view  of 
enabling  him  to  make  bargains  for  the  sale 
of  goods.  But  in  Porter  z\  Hildebrand, 
14  Peim.  State  Rep.  129,  where  the  plain- 
tiff was  a  carpenter,  moving  to  the  State 
of  Ohio,  and  his  tnmk  contained  carpen- 
ter's tools  to  the  value  of  $55,  which  the 
jury  found  to  be  the  reasonable  tools  of  a 
carpenter,  it  was  held  that  he  was  entitled 
to  recover  their  value.  See  also,  I^wight 
V.  Brewster,  1  Pick.  50 ;  Beckman  i\ 
Shouse,  5  llawle,  179;  Bomar  r.  Max- 
well, 9  Humph.  621  ;  Great  Northern  Rail- 
way Co.  V.  Shepherd,  9  E.  L.  &  E.  477, 
14  Id.  367  ;  Mad  River  and  Lake  Erie 
Railroad  Co.  v.  Fulton,  20  Ohio,  318. 

(/)  Thus,  in  the  case  of  Orange  County 
Bank  v.  Brown,  9  Wend.  85,  it  was  held 
that  the  owner  of  a  steamboat  used  for 
caiTving  passengers  was  not  liable  for  a 
trunk,  containing  upwards  of  Si  1,000  in 
bank-bills,  brought  on  board  by  a  passen- 
ger as  liaggage,  the  object  lieing  the  trans- 
portation of  money.  And  in  Hawkins  v. 
Hoffman,  6  Hill,  586,  it  was  doubled  by 
Branson,  J.,  whether  money  to  pay  travel- 
ling expenses  could  be  included  within  the 
term  baggage.  "  Men,"  says  he,  "  usually 
carry  money  to  pay  their  travelling  ex- 
penses, about  their  persons,  and  not  in 
their  trunks  or  boxes  ;  and  no  contract 
can  Ije  im]jlied  beyond  such  things  as  are 
usually  carried  as  baggage."  It  is,  how- 
ever, well  settled  tliat  a  traveller  may 
caiT)',  as  a  part  of  his  baggage,  a  reason- 
able amount  of  money  to  pay  his  expenses. 
Thus,  in  Jordan  v.  Fall  River  Railroad 
Co.  5  Cusli.  69,  it  was  lield  that  common 
carriers  of  passengers  arc  responsible  for 
money  bond  Jide  included  in  the  baggage 
of  a  passenger  for  travelling  expenses  and 
personal  use,  to  an  amount  not  exceeding 
what  a  prudent  person  would  deem  proper 
and  necessary  for  the  purpose.  And 
Fletcher,  J.,  after  a  critical  examination  of 
the  case,  said  :  "  Upon  consideration  of  the 
whole  sul)ject,  and  referring  to  the  cases, 
the  court  have  come  to  the  conclusion,  that 
money  bond  Jide  taken  for  travelling  ex- 

[748] 


penses  and  personal  use  may  properly  be 
regarded  as  forming  a  part  of  Jl  traveller's 
baggage.  The  time  has  been,  in  our 
country,  when  the  character  and  credit  of 
our  local  currency  were  such,  that  it  was 
expedient  and  needful,  for  persons  travel- 
ling through  different  States,  to  provide 
themselves  with  an  amount  of  specie, 
which  could  not  convenientlj'  be  carried 
about  the  person,  to  defray  travelling  ex- 
])enses.  But  even  if  bills  are  taken  for 
this  purpose,  it  may  be  convenient  and 
suitable  that  they  should  be,  to  some 
amount,  placed  in  a  travelling  trunk,  with 
other  necessaiy  articles  for  persoinil  use. 
This  would  seem  but  a  reasonable  accom- 
modation to  the  traveller.  It  has  been  ob- 
jected, that  the  carrier  will  not  expect  that 
there  will  be  money  with  the  baggage,  and 
will  not  therefore  be  put  upon  his  guard. 
But  surely  a  carrier  may  very  naturally 
understand  and  expect,  that  a  passenger 
will  place  his  money  for  expenses,  or  some 
part  of  it,  in  his  trunk,  instead  of  carrying 
it  all  about  his  person  ;  he  certainly  might 
as  naturally  expect  this  as  that  there 
would  lie  jewels  or  a  watch  in  a  travelling 
trunk,  for  which  articles  a  carrier  has  been 
held  responsible.  The  passenger  is  not 
bound  to  give  notice  of  the  contents  of  his 
trunk,  unless  particular  inquiry  be  made 
b}^  the  carrier.  But  it  must  be  fully  under- 
stood that  money  cannot  be  considered  as 
baggage,  except  such  as  is  bond  fide  taken 
for  travelling  expenses  and  personal  use, 
and  to  such  reasonable  amount  only  as  a 
prudent  person  would  deem  necessary  and 
proper  for  such  purpose.  But  money  in- 
tended for  trade,  or  business,  or  invest- 
ment, or  for  transportation,  or  any  other 
purpose  than  as  above  stated,  cannot  be 
regarded  as  baggage."  See  to  the  same 
effect  Weed  v.  S.  &  S.  Railroad  Co.,  19 
Wend.  5.34  ;  Bomar  ij.  Maxwell,  9  Humph. 
621  ;  Johnson  v.  Stone,  11  Humpii.  419. 

{m)  "If  one  has  books  for  his  instruc- 
tion or  amusement  by  the  way,  or  carries 
his  gun  or  fishing  tackle,  they  would  un- 
doulitedly  fall  within  the  term  baggage, 
because  they  are  usually  carried  as  such." 
Per  Bronson,  J.,  in  Hawkins  v.  Hoffman, 
6  Hill,  586.  So  in  Brooke  v.  Pickwick,  4 
Bing.  218,  and  McGill  v.  Rowand,  3  Barr. 
451,  carriers  were  held  responsible  for 
ladies'  trunks  containing  apparel  and 
jewels.     So  in  Woods  v.  Devin,  13  III. 


CH.  XII.] 


BAILMENT. 


-722 


may  often  be  very  difficult  to  draw  the  line  between  what 
would  come  within  the  liability  of  the  carrier,  and  what  would 
not.  The  question  would  not  only  be  materially  aft'ected  by 
circumstances,  but  is  one  of  those  upon  which  different  individ- 
uals would  be  very  likely  to  differ  ;  and  it  is  perhaps  impossible 
to  fix  upon  any  thing  like  a  definite  standard.  But  the  principle 
is  plain  enough,  and  the  reason  and  justice  of  it  are  undeniable. 
And  the  difficulty  in  the  application  of  the  principle,  whether  by 
the  court  or  by  the  jury,  is  of  a  kind  which  must  often  occur  in 
the  administration  of  the  law.  It  must  always  be  a  question  of 
mixed  law  and  fact;  where  the  court  state  the  principle,  and 
illustrate  its  bearing  upon  the  case  at  bar,  as  they  see  fit,  and 
the  jury  apply  the  principle  so  stated  as  they  best  can.  In  re- 
gard to  the  proof  of  the  contents  of  a  passenger's  trunk,  the 
prevailing  American  authority  holds  that  the  liability  of  the 
carrier  for  some  amount  having  been  established  aliunde,  the 
plaintiff  is  a  competent  witness  ex  necessitate,  to  prove  the  con- 
tents .of  his  trunk  and  their  value,  (n)  From  the  same  neces- 
sity, the  wife  of  the  owner  has  been  admitted  to  prove  the  same 
facts,  (o)  But  the  rule  for  the  admission  of  such  evidence  does 
not  extend  further  than  to  the  proof  of  such  as  being  commonly 
carried  in  a  traveller's  trunk,  may  be  expected  to  be  there,  (p) 
In  Massachusetts  it  was  formerly  held  that  the  common  law 
rule  prevailed,  and  neither  the  owner  nor  his  wife  could  be   a 


"46,  a  common  carrier  of  passeiifrers  was 
held  lialile  for  the  hiss  of  a  pocket-pistol 
and  a  pair  of  diiellin;;  jjistols,  contained  in 
a  carjjct-ha;;  of  a  passenger,  which  was 
stolen  out  of  the  possession  of  the  carrier. 
And  in  Jones  v.  Voorhces,  10  Ohio,  145, 
it  was  /(//(/  that  a  i;old  watch  of  the  value 
of  ninety-live  dollars  was  a  part  of  a  trav- 
eller's ha^'^'aj^e,  and  his  trunk  a  proper 
place  to  carry  it  in.  But  see,  Boinar  v. 
Maxwell,  9  Hmn|)h.  G21,  where  the  plain- 
tiff's trunk  contained  "  a  silver  wati-h, 
worth  about  thirtv-tive  dollars  ;  also,  medi- 
cines, hand-ciitrs,  locks,  &c.,  worth  ahout 
twenty  dollars,"  and  the  court  said : 
"  The  watch  alleged  to  have  heen  in  the 
trunk,  clearly  does  not  fall  within  the 
nicaning  of  the  term,  baggage ;  and  much 
less  the  hand-culfs,  locks,  &c.  ;  these  cer- 
tainly do  not  usually  constitute  part  of  a 

63* 


gentleman's  wardrobe,  nor  is  it  perceived 
how  they  arc  necessary  to  his  personal 
comfort  on  a  journey  in  a  stage-coach." 

(h)  Sncider  i\  Geiss,  1  Yeates,  34; 
Clark  V.  Spencc,  10  Watts,  3.3.) ;  Oppcn- 
lieimer  v.  Edncy,  9  Humph.  385  ;  Johnson 
V.  Stone,  11  id!  419;  Wliitosell  v.  Crane, 
8  W.  &  S.  3G9  ;  Mad  River,  &c.,  R.  K. 
Co.  V.  Fulton,  20  Ohio,  318;  Span-  v. 
Wellman,  11  Mis.<oun,  230. 

(o)  McGill  V.  liowand,  3  Harr,  451  ;  Mad 
River,  &c.,  R.  R.  Co.  v.  Fulton,  20  Ohio, 
318. 

(/-)  Mad  River,  &c.,  R.  R.  Co.  i-.  Ful- 
ton, 20  Ohio,  318.  Therefore  it  has 
heen  held  not  to  extend  to  "  medical 
books,  medicines,  surgical  instruments, 
and  chemical  apparatus."  I'udor  r.  B.  & 
M.  Railroad  Co.,  26  Maine,  458.  And 
see  Bingham  v.  Rogers,  6  W.  &  S.  495. 

[749] 


722- 


THE   LAW    OF   CONTRACTS. 


[book  III. 


witness  in  an  action  brought  by  the  owner.  (^7)  Such  is  now  the 
law  in  South  Carolina.  (/•)  But  a  statute  of  Massachusetts  per- 
mits the  plaintiff  to  put  in  evidence  in  the  case  a  description  list 
sworn  to  by  him.  {s) 


((/)  Snow  V.  Eastern  Eailroad  Co.,  12 
Met.  44.  In  tliis  case,  Hubbard,  J.,  said : 
"  To  admit  the  plaintiti"s  oath,  in  cases  of 
tliis  nature,  would  lead,  we  think,  to  much 
greater  mischiefji,  in  the  temptation  to 
frauds  and  perjuries,  than  can  arise  from 
exeludino;  it.  If  the  party  about  to  travel 
places  valuable  articles  in  his  trunk,  he 
should  put  them  under  the  special  charge 
of  the  carrier,  with  a  statement  of  what 
they  are,  and  of  their  value,  or  jirovidc 
other  evidence,  beforehand,  of  the  articles 
taken  by  him.  If  he  omits  to  do  this,  he 
then  takes  the  chance  of  loss,  as  to  the 
value  of  the  articles,  and  is  guilty,  in  a 
degree,  of  negligence  —  the  very  thing 
with  which  he  attempts  to  charge  the  car- 
rier.    Occasional  evils  only  have  occurred 

[750] 


from  such  losses,  through  failure  of  proof ; 
the  relation  of  carriers  to  the  party  being 
such  that  the  losses  are  usually  adjusted 
by  compromise.  And  there  is  nothing  to 
lead  us  to  innovate  on  tiie  existing  rules 
of  evidence.  No  new  case  is  presented;  no 
facts  which  have  not  repeatedly  occurred  ; 
no  new  combination  of  circumstances." 
—  See  further  on  this  question,  the  editors' 
note  to  Great  Northern  Railway  Co.  v. 
Shepherd,  9  E.  L.  &E.477,  and  1  Greenl. 
Ev.  348. 

(r)  DiU  V.  Eailroad  Co.,  7  Rich.  Law, 
158. 

(s)  Sup.  to  Rev.  Stats,  ch.  147,  §  5, 
(1851).  But  a  statute  of  1856,  allowing 
the  parties  to  suits  to  testifj',  would  seem 
to  settle  this  definitely. 


INDEX. 


A. 

ACCEPTANCE, 

of  a  bill,  presentment  for,  221. 

when  and  how  made,  222. 
must  conform  to  the  bill,  222. 
of  offers,  403-408. 

(See  Assent.) 
of  bids  at  auction  sales,  403. 
of  a  guaranty,  375,  401,  500-502. 

by  the  owners  of  goods  delivered  to  a  carrier  before  reaching  their  des- 
tination, G74,  675. 
ACCEPTOR, 

(See  Inuouskmkxt,  Bills  and  Notes,  Acceptance.) 
ACCOaOIODATION  BILLS  AND  NOTES, 

rights  and  liabilities  of  parties  to,  215,  216. 
ACCORD  AND  SATISFACTION, 

with  one  joint  party  a  discharge  of  the  others,  25,  29. 
ACCOUNT, 

recpiired  of  an  agent,  7G. 

of  a  partnership,  c(piity  governed  by  the  last  settled,  173. 
ACQUETS  OR  GAINS, 

community  of,  in  Louisiana,  -306,  note. 
ACTION, 

right  of.  Under  a  contract,  whether  belonging  to  principal  or  agent,  53. 

against  principal  or  agent,  53,  54. 
against  an  agent  to  dctennine  the  right  of  the  principal,  67. 
right  of,  between  partnei-s,  139. 

compromise  of,  a  valid  consideration,  363-3G5. 
forbearance  of,  366-369. 
assignment  of,  370. 


752 


INDEX. 


ACT  OF  GOD, 

common  carrier  excused  for  losses  occasioned  by,  634-637. 
ADEQUACY, 

of  consideration,  362,  363,  414. 
ADMINISTRATION, 

(See  Executors  and  Administrators.) 
ADMINISTRATORS, 

(See  Executors  and  Administrators.) 
ADMISSIONS, 

of  a  partner,  when  binding  on  tlie  firm,  146,  and  n.  (?«),  152. 
of  a  party  asserting  his  freedom,  331. 
AGENCY, 

in  general,  38-42. 
■what  the  term  includes,  39,  n.  (c). 
fundamental  principles  of,  38,  39. 
AGENTS, 

In  general-i  38-42. 

two  controlling  principles  in  regard  to,  38. 
division  of  into  general  and  particular,  39. 

authority  of  each  limited,  of  particular  agents  by  the  special  power 
given,  of  general  agents  by  the  usual  extent  of  the 
general  employment,  40,  41,  42,  49. 
but  unaffected  in  either  case,  by  private  instructions  not 
to  be  communicated  to  parties  dealing  with  the  agent, 
40,  n.  (d),  42. 
must  be  strictly  pursued,  41,  n.  (/). 
•    limited   by  instructions   known   to   parties   dealing  with 
them,  41,  n.  (/). 
of  general  agent,  continues  till  notice  of  its  revocation,  42. 
if  injury  is  to  result  to  one  from  neglect  or  omission  of  another's  agent, 

42,  n.  (r/). 
principal  liable  for  omission  or  neglect  of  agent,  41,  n.  ((/). 
distinction  between  authority  and  appearance  of  authority,  42. 
principal  bound  by  authority  which  he  really  gives,  or  which  he  appears 

to  give,  42. 
but  not  by  appearance  of  authority  which  agent  assumes,  42. 
In  what  manner  authority  may  be  given  to  an  agent,  42-44. 

expressly,  by  parol  to  do  any  thing  not  requiring  a  sealed  instrument,  42. 
but  not  to  execute  contracts  under  seal,  42,  n.  (i). 
receipt  of  agent  is  the  receipt  of  principal,  42,  n.  (i). 
tender  to  the  agent  Is  tender  to  the  principal,  42,  n.  (i). 
by  implication,  as  to  an  auctioneer,  wife,  son,  clerk,  Insurance  agent,  43, 
249,  252,  287,  289,  304,  392,  393. 
to  indorse  negotiable  paper,  43,  u.  (o),  44,  n.  (q). 
to  buy  on  credit,  43,  n.  (m). 


INDEX.  753 

AGENTS,  continued. 

Suhaeqiient  confirmation,  44-47. 

exprcssl)'  and  by  implication,  44,  45,  4G,  n.  (w),  47,  n.  (?(■). 

in  cases  of  marine  insurance,  4o,  n.  {tl'). 

in  cases  of  notices  to  quit,  45,  n.  (//). 

by  neglect  to  disavow  agents'  deeds,  46. 

of  part  of  the  agency  confirms  the  whole,  46. 

once  made  cannot  be  disaffirmed,  46,  n.  («). 

by  principal  unknown  when  the  contract  was  made,  44,  and  n  (»),  47, 

n.  {ivy). 
oral,  of  a  patrol  contract  sufficient,  47. 

of  a  contract  requii'cd  to  be  in  writing  by  statute,  47. 
parol,  of  a  deed  not  sufficient,  47. 

unless  the  seal  was  unnecessary  to  its  validity,  47. 
when  the  principal  may  ratify  an  unauthorized  act,  45,  n.  (/<). 
of  a  trespass,  45,  n.  (</),  46,  n.  (/<),  47,  n.  (ivy). 
to  bind  the  principal,  must  be  with  a  full  knowledge  of  the  facts,  46, 

n.  (»). 
by  a  state,  what  amounts  to,  46,  n.  (;<),  47,  n.  (wy). 
"where  the  agent  contracted  as  principal,  48,  notes  (a),  (h). 
Signature  by  an  agent,  47-49. 
what  is  sufficient  to  make  the  principal  a  party,  47,  48. 
whether  signature  of  agent  or  principal,  to  be  determined  by  the  inten- 
tion, 47. 
whether  principal  can  sue  or  be  sued  on  a  written  parol  contract  in 
which  his  name  does  not  appear,  48,  notes  (a),  (b). 
Duration  and  extent  of  authority,  49-52. 
hoAv  limited,  49,  50. 
restricted  to  acts  necessary  and  usually  incident  to  the  authorized  act, 

49,  50,  51. 
to  sell,  carries  with  it  no  power  to  sell  on  credit,  50. 

to  barter  or  pledge,  50,  n.  ((/). 
except  under  statute,  50,  n.  (g). 
to  transfer  negotiable  paper  intrusted  to  them,  211. 
when  derived  from  written  instruments  must  be  strictly  pursued,  51,  52, 

96. 
to  warrant,  when  it  is  given,  51,  52. 
effect  of  unauthorized  e.verclse  of,  to  warrant,  51,  52. 
to  borrow  money,  41,  n.  (/). 

measured  by  usage  when  it  is  oral,  but  not  when  it  is  written,  52. 
effect  of  the  agent's  concealments  and  misrepresentations  In  avoiding  a 
contract,  52,  n.  (;•). 
The  right  of  action  under  a  contract,  5."?,  418. 
when  an  undisclosed  principal  may  sue  and  be  sued,  53,  54. 


754 


INDEX. 


AGENTS,  continued. 

when  the  agent  of  an  undisclosed  principal  may  sue  and  be  sued,  55,  n. 
id),  418. 
Liability  of  an  agent,  54-58. 

in  what  cases  liable,  50,  54. 

when  he  himself  is  the  real  principal,  55. 

when  he  transcends  his  authority,  50,  51,  55. 

notwithstanding  subsequent  confirmation  by  principal,  55,  n.  (d). 

liable  for  the  entire  contract,  when  he  exceeds  his  authority  in  part,  58. 

whether  liable  when  acting  bona  fide  without  authority,  55,  56. 

in  what  form  of  action  liable,  57,  58. 
Revocation  of  authority,  58-62. 

liis  authority  revocable  by  principal,  58. 

unless  coupled  with  an  interest,  or  given  for  valuable  consideration,  58, 
n.  (h),  61,  85. 

when  authority  is  coupled  with  an  interest,  61. 

whether  that  of  factor  to  sell  is  revocable  after  advances  by  him,  58,  n. 

continues  as  regards  third  persons  until  notice  of  its  revocation,  41,  42, 

59,  60. 
method  in  which  notice  of  should  be  given,  59,  60. 
revocable  by  death  unless  coupled  with  an  interest,  60,  61,  and  n.  (m). 
by  lunacy,  60,  n.  (/). 
by  bankruptcy,  60,  n.  (/). 
by  marriage  o?  feme  sole,  60,  n.  (Z). 
How  the  principal  is  affected  by  the  misconduct  of  his  agent,  62,  63. 
principal  liable  for  fraud  and  false  representations  of  his  agent,  63. 
although  no  actual  fraud  is  proved,  63. 
Of  notice  to  an  agent,  63-66. 
when  equivalent  to  notice  to  the  principal,  63. 
when  notice  to  an  attorney  is  notice  to  his  client,  64. 
when  notice  to  the  principal  is  notice  to  his  agents,  65. 
what  notice  affects  a  corporation,  65,  GG. 
Of  shipmasters,  66,  67. 

their  extraoi'dinary  powers  under  peculiar  exigencies,  66,  67. 
Of  an  action  against  an  agent  to  determine  the  right  of  a  principal,  67,  68. 
agent  not  lial)le  to  suit  for  money  paid  to  him  to  which  principal  has 

color  of  right,  67. 
unless  notice  not  to  pay  over  has  been  given,  or  the  payment  is  void  ab 
initio,  6  7,  n.  (/). 
The  rights  and  obligations  of  principals  and  agents  as  to  each  other,  69-77. 
agent  bound  to  follow  the  instructions  of  principal,  69. 
if  he  has  none,  is  bound  to  follow  custom  and  usage,  69,  73. 
what  is  such  usage,  73. 


INDEX.  755 

AGENTS,  continued. 

and  usage  Avill  not  justify  a  disregard  of  instructions,  69. 

how  each  is  affected  by  the  principal's  ratification  of  the  agent's  contract 
and  torts,  69,  70. 

principal  must  reject  agent's  unauthorized  act  at  once  or  he  ratifies  it, 
71. 

■vv'lien  agent's  act  may  be  partly  void,  70,  n.  (»). 

when  the  agent  can  delegate  his  authority,  71,  72. 

whose  agent  the  substitute  is,  72,  73,  76. 

agent  bound  to  use  proper  care,  diligence,  and  skill,  73. 

to  what  extent  liable  when  acting  gratuitously,  73,  notes  (?t'),  {-). 

or  in  a  professional  capacity,  73,  notes  (iv),  (z). 

responsible  for  misconduct  and  deviation  from  instructions,  74. 

must  not  hold  a  position  adverse  to  that  of  principal,  74. 

when  employed  to  buy  or  sell,  cannot  buy  of  or  sell  to  himself,  74,  75. 

and  need  not  be  proved  to  have  taken  undue  advantage  of  his  position, 
75. 

bound  to  account  with  proper  frequency,  76. 

when  chargeable  with  interest  on  balance  in  his  hands,  77. 

to  whom  mixed  property  of  principal  and  agent  belongs,  77. 

when  liable  as  partners,  134-137. 

whether  appointment  of  agent  by  an  infant  is  void  or  voidable,  243. 

when  the  wife  is  agent  of  tlie  husband,  255,  286-306. 
'  who  are,  of  a  common  carrier,  651,  655-657,  685,  699. 

a  slave  may  be  an  agent.  333. 
AGREEMENT, " 

use  of  the  term,  6. 

{See  Assent,  Contracts,  &c.) 
ALIENS, 

definition  of,  by  the  common  law,  323. 

what  persons,  born  abroad,  are  citizens  by  statute,  323. 

rights  of,  as  to  real  property,  323,  324. 
as  to  personal  property,  324. 

suits  by  and  against,  324,  325. 

general  rights  and  duties  of,  324,  325. 
ANTE-NUPTIAL  CONTRACTS, 

{See  Mauhiage  Settlements.) 
APPRENTICES, 

law  governing  the  relation  of,  how  it  arose,  532. 

liability  of,  262.  276,  27  7,  533. 

duty  of  master  towards,  533,  534. 

liability  of  parties  covenanting  for  good  behavior  of,  534. 

rights  of  master  against  persons  seducing  or  harboring,  535. 
ARBITRATION, 

firm  not  bound  by  a  partner's  submission  to,  without  special  authority,  168. 


756  INDEX. 

ARBITRATION,  continued. 

submission  to,  a  valid  consideration,  364-366. 
ARBITRATOR, 

compensation  of,  538. 
ASSENT,  of  the  parties,  399-408. 
What  the  assent  must  be,  399-403. 
must  be  mutually  obligatory,  373-376,  399. 
the  acceptance  must  not  vary  from  the  proposition,  400,  401. 
acceptance  of  an  offer  of  guaranty,  3  75,  401,  402,  500-503. 
of  bids  at  sales  by  auction,  403,  418. 
of  an  offer  of  marriage,  544,  545,  546. 
Contracts  on  time,  403,  408. 
acceptance  of  offers,  when  no  time  for  acceptance  is  expressed,  404- 
406. 
when  time  for  acceptance  Is  expressly  fixed,  404, 

405. 
when  both  the  offer  and  acceptance  are  made  by 
letter,  406-408. 
ASSIGNMENT, 

of  all  the  partnership  property  by  a  partner,  154-156. 
of  a  partner's  interest  in  the  firm,  effect  of,  131,  171. 
of  the  shares  of  a  joint-stock  company,  121. 
Of  assignment  of  choses  in  action,  192-197. 
choses  In  action,  what  are,  192. 

when  they  may  be  enforced  in  equity  by  the  assignee, 

193. 
what  are  and  what  are  not  assignable,  191-197. 
how  protected  at  law,  195. 
when  a  consideration,  370. 
(See  Novation.) 
Of  the  manner  of  assignment,  197,  198. 

whether  it  must  be  in  writing,  197,  n.  (e). 
Of  the  equitable  defences,  198,  199. 

respective  rights  of  the  assignee  and  debtor,  198,  199. 
Covenants  annexed  to  land,  199-201. 
right  to  sue  on,  possessed  by  an  assignee  having  the  same  estate  as  the 

covenantee,  199. 
what  covenants  run  with  the  land,  199-201. 
ATTAINDER, 

consequences  of,  348. 
ATTAINTED  PERSONS,  348,  349. 
ATTORNEYS, 

classes  of,  94. 

how  the  authority  to  make  a  contract  or  deed  must  be  given,  94. 

how  It  must  be  executed,  95,  96. 


INDEX.  757 

ATTORNEYS,  continued. 

attorney  at  law,  how  his  authority  must  appear,  97. 

when  personally  liable  for  his  elient's  money,  97. 

duties  to  clients,  97,  98,  588,  n.  (c). 

when  personally  liable  on  agreements  in  his  own  name  for  his  client's 
benefit,  99. 

compensation  for  services  of,  98,  538,  539. 

cannot  recover  compensation  if  services  are  •worthless,  98,  99. 

lien  of,  540,  n.  (z). 

notice  to,  when  notice  to  the  client,  64. 

may  not  take  a  gift  from  a  client,  75. 
AUCTION, 

an  agent  authorized  to  sell  at,  cannot  sell  at  private  sale,  50,  n.  ((/). 

how  the  purchaser  at,  is  bound  by  memorandum  of  auctioneer,  9G,  n.  {gcf)- 

bids  at,  403,  418. 

sales  at,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
when  avoided  by  by-bidding,  417. 

powers  and  liabilities  of  auctioneer,  418-420. 

conditions  of  sale  at,  450,  451. 
AUCTIONEER, 

implied  authority  of,  43. 

cannot  sell  at  private  sale,  51,  n.  (17). 

liability  of  when  selling  in  his  own  name,  54,  n.  (h). 

powers  and  liabilities  of,  418-420. 

(See  Auction.) 
AUTHORITY, 

of  an  ayent,  how  measured,  38-42. 

how  conferred,  42-44. 

how  ratified,  44-47. 

how  executed  in  signing  a  written  instrument,  47-49. 

duration  and  extent  of,  49-52. 

to  sue,  53. 

how  terminated,  58-G2,  85. 

when  princij)al  liable  for  agents'  misconduct,  62. 

upon  notice  received  by  agent,  64-66. 

to  delegate  his  authority,  71. 

to  sell  his  principal's  property  to  himself,  75. 

to  transfer  negotiable  i)aper  intrusted  to  hin),  211. 

to  bind  a  corporation,  how  conferred,  117,  118. 
how  executed,  118-120. 

of  shipinasters,  66,  6  7. 

oi  a  partner,  151-168. 

to  sue  on  paper  of  the  firm  after  decease  of  copartner.  21.  n.  (c). 

to  indorse  the  paper  of  the  firm  in  its  name  after  dissolution,  44,  n.  (7). 
VOL.  I.  64 


758 


INDEX. 


AUTHORITY,  continued. 

^to  sign  the  firm's  name  to  a  note  without  more,  96,  n.  (gg). 
to  bind  the  firm  by  his  admissions,  146,  n.  (m),  152. 
by  his  contracts,  151-168. 
by  his  torts,  160,  161,  n.  («). 
by  a  submission  to  arbitration,  168. 
how  terminated,  170-173. 
of  a  raajority  of  partners,  156,  168,  169. 

of  a  child  to  render  the  parent  liable  for  necessaries  furnished  to  him, 
247-260. 

{See  Infants.) 
of  a  married  woman,  to  render  her  husband  liable  for  her  contracts  and 
necessaries  furnished  to  her,  286-306. 

{See  Markied  Women.) 
AWAY-GOING  CROPS, 

rights  of  landlord  and  tenant  to,  430. 


B. 
BAGGAGE, 

liability  of  passenger  or  carriers  for,  6  73. 
what  constitutes,  720,  721,  722. 

testimony  of  owner,  admissible  to  prove  amount  of,  722. 
BAILMENT, 

history  of  the  law  of,  569. 
degrees  of  bailee's  responsibility,  570. 
kinds  of,  571,  572. 
Depositum,  572-580. 

depositary's  liability,  measure  of,  572-577. 
delivery  by  depositary,  577,  578. 
property  of  depositary,  nature  of,  578. 
when  persons  are  chargeable  as  depositaries,  579. 
Mandatum,  580-589. 

consideration  of,  372,  373,  581. 

mandatary's  liability,  ground  of,  372,  373,  580-585. 

measure  of,  586,  589. 
distinction  between  liability  ex  contractu  and  ex  delicto,  585,  586. 
Commodaium,  590. 

liability  of  borrower,  590. 
Pignus,  591-602. 

pledgee's  liability,  measure  of,  591,  592. 
property  in  the  pledge,  592. 
use  of,  593. 

liability  to  account  for  the  profits  of,  593. 
liability  for  the  theft  of,  594. 
difference  between  a  pledge  and  a  mortgage,  452,  n.  (xx),  594-599. 


INDEX.  7o9 

BAILMENT,  continued. 

pledge  of  stocks,  594-599. 
rights  of  pledgee,  592,  593,  COO,  001,  G02. 
sale  of  pledge,  G02. 

whether  an  implied  warranty  in  a  sale  of,  457,  n.  (/). 
termination  of,  601,  602. 

of  a  bill  of  lading,  cffeet  of,  on  the  consignor's  right  of  stoppage  in  tran- 
situ, 489. 
Locatio,  602-722. 
Locatio  ret,  602-610. 

bailee  in,  measure  of  his  liability,  602,  603. 

his  liability  for  injuries  to  the  thing  bailed,  by  the  negligence 
of  his  servants,  604,  605. 
by  theft  or  robbery,  605,  606. 
duty  of,  as  to  the  manner  of  using  the  thing  hired,  608. 
as  to  the  time  of  surrendering  the  thing  hired,  608. 
as  to  accounting  for  injury  to  the  thing  bailed,  606. 
property  of,  in  the  thing  bailed,  609. 
bailor  in,  bound  not  to  interfere  with  the  hirer's  use  of  the  thing,  607, 
609. 
when  bound  to  repair,  607,  608. 
compensation  of,  609. 
contract  of  hire,  how  terminated,  609. 
hirer  of  slaves,  responsibility  of,  603,  n.  (r),  608,  n.  (/>). 
Locatio  operis  faciemli,  610-632. 

Mechanic  emploijed  in  the  manufacture  and  repair  of  an  article  hailed, 
610-617. 
liability  of,  how  measured,  610,  611.  * 

property  of,  in  the  article  bailed,  611. 
right  of,  to  compensation  for  labor,  when  the  article  j)erishes  during  the 

bailment,  611. 
when  liable  as  bailee,  or  absolutely  as  debtor,  611-613. 
rights  and  liability  of,  in  case  of  a  deviation  from  the  contract,  614-617. 
lien  of,  617. 
Warehouse-men,  618-621. 
liability  of,  how  measured,  618. 

when   extended   to   that   of  a   common    carrier,    618-620, 
652-654. 
delivery  by,  when  tiie  title  is  in  disj)Ute,  621,  677-679. 
lien  of,  621. 
Wharjinr/ers,  liability  of,  621,  622. 
Postmasters,  liability  of,  622. 
Innkeepers,  623-632. 

persons  liable  as  such,  623. 
infants  not  liable  as  such,  263. 


760 


INDEX. 


BAILMENT,  continued. 

liability  of,  how  measured,  623-625, 

when  discharged  by  the  negligence  of  the  guest,  625-627. 
when  incurred  by  delivery  to,  627,  628. 
duty  of,  to  receive  guests,  627. 

to  admit  drivers  of  coaches,  627. 
separate  compensation  for  keeping  the  guest's  goods  not  necessary  to 

render  the  innkeeper  liable,  627. 
persons  entitled  to  the  legal  rights  of  guests,  628-630. 
when  goods  of  the  guest  are  within  the  custody  of  the  innkeeper,  so  as 

to  charge  him,  626,  631. 
lien  of,  632. 
Locat'io  operis  mcrcium  vehendanun,  633-722. 

private  carriers,  persons  liable  as  such,  633,  634,  639,  n.  (/•). 
not  bound  to  receive  goods,  648. 
special  property  of,  in  the  chattel,  633. 
liability  of,  how  measured,  633. 

extended  and  limited  by  special  contract, 
634. 
Common  Carriers.     (>See  Carriers,  Common.) 
BANK-BILLS, 

notes  payable  in,  not  negotiable,  209. 

payment  in  forged,  or  those  of  an  insolvent  bank,  218,  220. 
BANK  CHECKS, 

when  to  be  presented,  217,  218. 

when  forged  and  paid  by  the  bank,  the  loss  falls  on  the  bank,  220. 
effect  of  usage  on  acceptance  of,  229. 
not  entitled  to  days  o# grace,  229. 
BANKS, 

checks  of,  217,  218,  220,  229. 
collection  of  negotiable  paper  by,  586,  n.  (n). 
liability  of,  for  special  deposits,  573,  n.  (.s-). 
BANKRUPTCY, 

of  a  principal  revokes  the  agent's  authority,  61,  and  n.  (/). 
of  a  partner  dissolves  the  partnership,  173. 
infant  cannot  subject  himself  to,  261. 

contract  barred  by,  revived  by  new  promise,  308,  309,  360. 
BANKRUPTS  AND  INSOLVENTS, 

distinction  between  a  bankrupt  and  an  insolvent  law,  307. 
effect  of  a  promise  to  pay  a  debt  discharged  by,  308,  309,  360. 
what  constitutes  such  promise,  308. 
form  of  action  upon  such  promise,  308,  309. 


BAR, 


when  created  to  an  action  against  one  debtor  by  a  judgment  against  his 
co-debtor,  12,  n.  (j). 


INDEX.  761 

BARTER, 

agent  to  sell  cannot,  without  special  autliority,  50,  n.  {g). 
BEARER, 

note  or  bill  payable  to,  how  transferred,  205. 
BIDS, 

(5ee  Auction.) 
BILLS  OF  LADING, 

negotiability  of,  239. 

stoppage  in  transitu  defeated  by  indorsement  of,  487-489. 

pledge  of,  COO. 

liability  of  carrier,  how  afl'ected  by  exceptions  in,  647. 
BILLS  OF  EXCHANGE, 

(iee  Bills  and  Notes.    Indorsement.) 
BILLS  AND  NOTES, 

{See  Indorsement.) 

liability  of  agent  intrusted  with,  73,  n.  (y). 

power  of  agent  intrusted  with,  to  pledge,  79,  80. 

liability  of  partnership  on,  when  drawn  without  authority,  ICl,  n.  («). 
of  executor  on,  108. 

negotiable  bills  and  notes,  202-206. 

exceptions  to  rule  prohibiting  assignments  of  chosesin  action,  202. 

essentials  of,  200-210. 

indorsement  of,  211-216. 

apportionment  of,  when  the  consideration  is  dimsible,  388,  n.  (m). 

payable  on  demand,  217-221. 

presentment  of,  for  acceptance,  221,  222. 
for  payment,  223-238. 

of  whom,  when  and  where  the  demand  of  should  be  made,  228-230. 

notice  of  non-payment  of,  231. 

excuses  for  neglect  of,  232. 

when,  where,  and  how  to  be  given,  233-235. 

how  the  indorser  may  be  discharged,  235,  236,  237. 

protest  of  bills,  237,  238. 

damages  for  non-payment  of  bills,  239. 

liability  of  holder  of,  as  collateral  security,  591,  n.  (»). 

liability  of  banks  for  collection  of  ichen  intrusted  to  them,  586,  n.  (»;). 

pledgee  of,  his  rights,  GOO,  601. 
BLANK, 

indorsements  in,  205. 
BOARDING-HOUSE  KEEPERS, 

liability  of,  (!28  and  n.  (A). 
BOATMEN," 

when  liable  as  common  carriers,  644,  645. 
BOND, 

assignment  of,  196,  197,  198. 


762 


INDEX. 


BOND,  continued. 

of  railroad,  negotiability  of,  240. 

of  an  infant,  243,  260. 
BORROWER, 

rights  of,  590. 
BROKER, 

power  to  resell  and  charge  with  the  loss  the  purchaser  who  fails  to 
pay,  49,  n.  (e). 

cannot  delegate  his  authority,  71  n.  (q),  84. 

distinction  between,  and  a  factor,  78,  84. 

when  a  partner,  125,  n.  (c). 

power  of,  when  the  pledgee  of  stock,  599. 

(See  Factoks  and  Brokers.) 
BROTHEL, 

proximity  of,  whether  it  avoids  a  contract  for  the  hire  of  a  house,  when 
not  disclosed  by  the  agent  at  the  time  it  was  made,  52,  n.  (r). 
BUILDING, 

contract  for,  540. 

extra  work  in,  when  and  how  to  be  paid  for,  540,  542. 
BY-BIDDING, 

when  sales  at  auction  are  avoided  by,  417. 


C. 

CARRIERS,  COMMOi^, 

liability  of,  how  measured,  634,  635. 

excused  for  losses  occasioned  by  the  "  act  of  God,"  634-637. 

by  the  natural  decay  of  goods,  638,  6  76, 

677. 
by  public  enemies,  638 
Who  is  a  Common  Carrier,  639-648. 

wagoners  and  market-men,  639-642. 

truckmen,  cartmen,  and  porters,  641,  642. 

proprietors  and  drivers  of  stage-coaches,  643. 

carriers  by  water,  644-647. 

boatmen  and  ferrymen,  645. 

proprietors  of  steamboats,  645. 

owners  of  general  ships,  646,  647. 

railroad  companies,  647,  648. 
Obligations  of  a  Common  Carrier.,  648-650. 

to  receive  goods,  648. 

excuses  for  refusal  to  receive,  649,  650. 

compensation  of,  649,  650,  680,  697. 

discrimination  l)etween  persons,  how  limited,  650. 
When  the  responsibility  begins,  650-652. 

with  delivery  to,  650-652. 


INDEX.  763 

CARRIERS,  COIMMON,  continued. 

determined  by  the  character  in  which  the  carrier  receives  goods,  G52- 
654. 

notice  of  the  delivery,  G54,  6G9. 

delivery  to  what  persons  renders  the  carrier  liable,  650,  651,  655-657. 

liability  of  the  owner  of  a  ship  carrying  goods  when  chartered  to  an- 
other, 657. 
When  the  responsibility  ends,  658-677. 

delay  in  delivery,  when  excused,  659,  660. 

duty  of,  when  delivery  to  the  consignee  cannot  properly  be  made,  660, 
683,  684. 

what  constitutes  delivery  by,  658,  661,  662. 

how  affected  by  usage,  661,  670,  671. 

when  notice  to  the  consignee  of  the  arrival  of  goods  is  necessary,  661, 
662,  669. 

railroad  carriers,  delivery  by,  662-664. 

carriers  by  water,  delivery  by,  665-6  70. 

when  common  carriers  become  liable  only  as  warehouse-men  or  deposi- 
taries, 671,  674,  680,  681. 

not  liable  for  goods  in  the  personal  custody  of  the  owner,  650,  672,  674. 

acceptance  of  the  goods  by  the  consignee  before  reaching  their  destina- 
tion, effect  of,  674. 

failure  to  deliver,  when  excused,  635-639,  675-677. 
Where  a  third  part;/  claims  the  goods,  621,  677-680. 

delivery  to  the  true  owner  a  good  defence  to  an  action  bfought  by  the 
consignor  having  no  right,  678. 

remedy  in  equity,  578,  621,  679. 
Compensation,  648,  649,  680. 
Lien,  and  Arjcncij  of,  and  responsibility  beyond  his  own  route,  680-690. 

right  of  lien,  6S1. 

abandonment  of,  681,  n.  («). 

liability  of,  while  holding  goods  on  the  ground  of,  681. 

v/hen  he  receives  the  goods  from  one  not  the  owner  or  his  agent,  682. 

when  the  carrier  is  liable  only  as  factor,  684,  685. 

liable  for  the  acts  of  agents,  685,  686,  699. 

of  partners,  699,  700. 

when  liable   for  the  safe  transportation  of  goods  beyond  the  terminus 
of  his  route,  686-690. 
Common  carrie}'s  of  passenyers,  690-702. 

liability  of,  how  measured,  690-695. 

for  gratuitous  passengers,  691-695. 
for  the  carriage  of  slaves,  692,  n.  (m). 

duty  of,  to  notity  passengers  of  peculiar  dangers,  692.  n.  (w). 

burden  of  proof  on,  to  flisprove  negligence  in  case  of  loss,  695. 

duty  of,  to  receive  passengers,  696. 


764 


INDEX. 


CARRIERS,  COMMON,  continued. 

excuses  of,  for  not  receiving,  696,  n.  (o). 

duty  of,  as  to  speed,  treatment  of  passengers,  providing  suitable  means 

of  transport,  and  proper  servants,  697-700. 
liability  of,  for  injuries  to  strangers,  700. 
in  cases  of  collision,  701,  702. 

when  the  negligence  of  the  injured  party  is  a  good  defence, 
700-702. 
liability  by  express  contract,  703-707. 
Of  special  agreements  and  notices^  689,  703-718. 
whether  they  may  qualify  their  common  law  liability,  703. 

by  express  contract,  703-707. 
by  notice,  707-712. 
how  far  they  may  limit  their  liability  by  notice,  709-717. 
liability  of,  in  case  of  negHgence  notwithstanding  notice,  713-718,  n.  (A), 
whether  the  notice  dispenses  with  a  special  inquiry,  717,  718. 
what  is  sufiicient  notice,  719,  n.  (<"). 
Of  Fraud,  719-722. 
liability  of,  how  affected  by  the  fraud  of  the  owner,  719. 

for  baggage  of  passengers,  to  what  articles  it  extends,  673, 
720,  721,  722. 
testimony  of  the  passenger,  admissible  to  prove  the  contents  of  his  trunk, 
to  what  extent,  721,  722. 
CARRIERS,  PRIVATE, 

persons  liable  as  such,  633,  639,  n.  (r). 
special  property  of,  in  the  chattel,  633. 
liability  of,  how  measured,  633. 
how  affected  by  special  contract,  634. 
not  bound  to  receive  goods,  648. 
CAVEAT  EMPTOR, 

rule  of,  when  applied,  460. 

exceptions  to,  461,  465-470. 
CHECKS  OF  A  BANK, 

{See  Bank  CnECKS.) 
CHILD, 

{See  Infants.) 
CHOSES  IN  ACTION, 

assignments  of,  192-202. 
rights  of  the  assignee  of,  192,  193. 
what  may  be  assigned,  194,  196. 
maimer  of  assignment  of,  197. 
equitable  defences  to,  19  7. 

of  a  married  woman,  how  reduced   into   possession  by  her  husband, 
284-286. 

{See  Assignment  and  Novation.) 


INDEX.  765 

CO-CONTRACTORS, 

contribution  between,  32,  33. 
COHABITATION, 

how  it  affects  the  husband's  liabilities  for  contracts  of  his  wife,  and  neces- 
saries furnished  to  her,  286-30&. 
COLLATERAL  SECURITY, 

bills  and  notes  Avhen  negotiated  as  such,  whether  open  to  equitable  de- 
fences, 216. 
liability  of  the  holder  of  bond  and  notes,  as  such,  5D1,  n.  («). 
COMMISSIONS, 

factoi-'s.  right  to,  when  complete,  84. 
his  lien  for,  8-1. 

may  pledge  to  the  amount  of  his  lien  for,  80. 
COMMODATU.U, 

liability  of  borrower,  590. 
COMMUNITY, 

of  property  in  Louisiana,  -306,  note. 
COMPANIES, 

(See  Joint-Stock  Companies.) 
COMPOUND  INTEREST, 

{See   IXTERKST.) 

COIklPROMISE,  .  A 

of  suits  or  claims,  a  valid  consideration,  3G3,  364. 
CONCEAL^IENTS, 

of  agent,  how  they  affect  the  principal,  52. 

of  partner,  how  they  affect  the  firm,  IGO,  n.  (k). 

by  the  owner  of  goods,  how  they  affect  the  liability  of  a  common  carrier, 
719. 
CONDITIONAL  SALES,  449-551. 
CONSIDERATION, 

not  included  in  the  definition  of  a  contract,  5,  6,  7. 
Necessity  for,  353-356. 

in  the  civil  law,  353,  355. 

in  the  continental  law,  354,  355. 

in  the  common  law,  354,  355. 

of  contracts  under  seal  or  specialties,  354,  355. 

of  written  contracts,  355,  356. 

when  expressed,  no  other  can  be  proved,  355,  356. 
Kinds  of,  356-361. 

good,  357. 

valuable,  357. 

equitable,  3.5  7. 

moral,  35H-3t)l. 
Adequacy  of,  361-363,  414. 

valid  considerations  classified,  3G3-379. 


766 


INDEX. 


CONSIDERATION,  cow^mucrZ. 

Prevention  of  lilujaiion,  363-365. 

submissions  to  arbitration,  363,  376. 

compromise  of  a  right  of  action,  364,365. 
Forbearance  of  a  suit  at  law  or  in  equitij,  366-369. 

must  not  be  of  a  wholly  unfounded  claim,  366. 

time  of,  36  7. 

not  a  consideration  unless  there  is  a  party  liable  to  suit,  368. 

waiver  of  a  right  of  action,  369. 

incurring  liability  to,  369. 
Assignment  of  debt,  370. 
Work  and  service,  370,  371. 

when  gratuitous,  371,  580,  n.  (i). 
Trust  and  confidence,  372. 

liability  of  a  gratuitous  bailee,  372,  n.  (d). 
Promise  for  a  promise,  373-376. 

not  a  consideration,  without  mutuality,  374-376. 

except  between  infants  and  persons  of  full  age,  276,  277,  376. 
Subscription  and  contribution,  377-379. 

to  the  stock  of  incorporated  companies,  377. 

for  charitable  purposes,  378,  379. 
Of  consideration  void  in  part,  379. 
Illegality  of  consideration,  365,  380-382. 

distinction  between  jjartial  illegality  of  consideration  and  partial  ille- 
gality of  promise,  380. 

distinction  between  illegality  by  statute  and  illegality  by  common  law, 
381. 

what  constitutes  illegality  by  statute,  382. 
Impossible  conside/'ations,  382-386. 

the  impossibility  must  be  natural,  not  merely  personal  to  the  promisor, 
383-385. 
Failure  of  consideration,  386-388. 

total  failure,  386. 

partial,  386-388. 

when  divisible,  386,  387. 
Rights  of  a  stranger  to  the  consideration,  389-391. 

by  the  ancient  rule  of  the  common  law,  when  secured,  388,  389. 

by  the  prevailing  rule  in  this  country,  390. 

in  contracts  under  seal,  the  action  must  be  brought  in  the  name  of  the 
party  to,  391. 
The  time  of  the  consideration,  391-398. 

concurrent,  391. 

executory,  391. 

executed,  founded  on  previous  request,  express  or  implied,  391,  392. 

previous  request,  when  implied,  392-396. 


INDEX.  767 

CONSIDERATION,  continued. 

when  required  to  be  stated  in  declaration,  395,  n.  (z). 

liability  of  promisor  not  extended  by  express  promise,  when  his  previous 

re(|uest  and  subsequent  promise  arc  both  implied  by  law,  395,  396. 
consideration  of  a  guaranty,  3GG,  n.  (/>),  375,  -196. 
of  contracts  of  novation,  189,  190. 
of  negotiable  paper  presumed,  20G,  211. 
when  inquirable  into,  211,  215. 
entircness  of  the  consideration,  how  it  affects  the  joinder  or  severance 
of  parties,  15-20. 
CONSTllUUTION, 

of  warranties,  459. 
of  guaranties,  495. 
CONTINGENCY, 

how  it  affects  contracts  otherwise  within  the  Statute  of  Frauds,  529. 
CONTRACTS, 

Extent  and  scope  of  the  law  of,  3,  4. 
how  expressed  and  enforced,  4,  5. 
Definition  of  5,  6. 

consideration  not  involved  in,  6. 
by  what  terms  described,  6,  7. 
when  complete,  399,  408. 
Division  of  7. 

into  contracts  by  specialty,  7. 
and  simple  contracts,  7. 

distinction  between  verbal  and  written,  between  written  and  parol,  not 
sound,  7. 
Essentials  of  8. 
parties  to,  9-349. 
Joint  parties,  11-37. 
agents,  38-7  7. 
factors  and  brokers,  78-85. 
servants,  8G-93. 
attorneys,  94-99. 
trustees,  100-lOG. 

executors  and  adminu^trators,  107-112. 
guardians,  113-llG. 
corj)orations,  117-120. 
joint-slock  companies,  121-123. 
partners  or  partnership,  124-186. 
new  parlies  by  novation,  187-191. 
assignment,  192-201. 
indorsement,  202-  24 1 . 
infants,  242-282. 
married  women,  283-306. 


76S 


INDEX. 


CONTRACTS,  continued. 

bankrupts  and  insolvents,  307-309. 

non  compotes  mentis,  310-314. 

spendthrifts,  314,  315. 

seamen,  316-318. 

persons  wider  duress,  319-322. 

aliens,  323-325. 

slaves,  326-347. 

outlaws,  348,  349. 

attainted,  348,  349. 

excommunicated,  348,  349. 

consideration  of,  353-398. 

assent  of  the  paj'ties  to,  309-408. 

subject-matter  of  contracts,  409-722. 

real  property,  purchase  and  sale  of,  414-420. 
hiring  of,  421-434. 

personal  property,  sale  of,  435-455. 

warranty,  456-475. 

stoppage  in  transitu,  476-490. 

hiring  of  chattels,  491,  492. 

guaranty  or  suretyship,  493-517, 

hiring  of  persons,  518-536. 

contracts  for  service  generally,  537-542. 

marriage,  543,  568. 

bailment,  569-722. 

made  under  duress,  void,  319. 
CONTRIBUTION, 

when  and  on  what  principle  enforced,  32-34. 

by  a  surety  against  the  representatives  of  a  deceased  co-surety,  32,  n. 

by  surety  against  a  co-surety  for  costs  of  defending  suit,  33,  n.  (/). 
fixed  and  positive  obligation  to  pay,  necessary  to,  33. 
how  the  claim  for,  is  presented  and  adjusted,  34,  35. 
contract  of,  is  a  several  contract,  35. 

dates  from  the  time  when  the  relation  was  entered  into,  35. 
when  the  right  to,  begins,  36. 
none  between  wrong-doers,  36. 

except  where  the  act  is  of  a  doubtful  char- 
acter and  done  bona  fide,  36. 
controlled  by  circumstances,  showing  a  different  understanding,  37. 
indorsers  of  accommodation  paper  not  entitled  to,  216. 
CORPORATIONS, 

in  law,  persons,  117. 

and  citizens  of  the  States  where  incorporated  and  doing  business, 
117,  n.  (w). 


f 


INDEX,  769 

CORPORATIONS,  continued. 

how  authority  to  act  for  them  may  be  given,  117. 

how  it  must  be  executed,  118-120. 

seal  of  the  agent  of,  not  the  seal  of,  94,  n.  (/). 

may  employ  their  members  as  agents,  120. 

and  such  members  may  be  agents  for  the  other  contracting  party,  120. 

may  be  liable  on  contracts  entered  into  in  a  manner  not  prescribed  in 
the  charter,  120. 

but  not  when  the  contracts  themselves  exceed  their  powers,  120. 

what  constitutes  a  corporate  act,  120. 

when  affected  with  notice,  GG. 
CO-SURETIES, 

contribution  between,  32. 

representatives  of  deceased,  liable  for,  32,  n.  (e). 
COUPONS, 

attached  to  railroad  bonds,  negotiable,  240. 
COVENANT, 

use  of  the  term,  C. 

action  on,  whether  joint  or  several, 

{Sec  Joint  Parties.)     ■ 

not  to  sue,  28,  514. 

annexed  to  land,  109,  199-20-1. 

infant  not  liable  on,  by  common  law,  262. 
CREDIT, 

agent  to  sell,  cannot  give,  without  special  authority,  50. 
CROPS, 

{See  Away-going  Crops.) 

D. 

DAMAGES, 

in  an  action  by  principal  against  agent,  74. 
for  non-payment  of  bills  of  exchange,  238. 
in  an  action  for  freedom,  332. 
common  law  remedy  by  means  of  giving,  412. 
for  breach  of  contract  to  marry,  551-553. 
in  an  action  on  the  warranty  of  chattels,  474,  n.  (r/). 
release  of,  2G. 
DEATH, 

of  co-surety,  whether  it  relieves  his  estate  from  liability  for  contribution. 

32,  n.  {','). 
of  principal  revokes  agent's  authority,  61. 
contract,  when  determined  by,  110,  111. 
of  partner  dissolves  the  partnership,  172,  173. 
of  assignor  of  a  chose  in  action  does  not  .defeat  the  assignment,  196. 
VOL.  I.  65 


770  INDEX. 

DEATH,  continued. 

of  a  party  bound  to  give  notice  of  non-payment  of  bill  or  note,  excuses 
want  of  notice,  232. 
DEED, 

of  agents  to  bind  the  principal  must  be  authorized  by  an  instrument 
tinder  seal,  47,  94. 

execution  of,  by  agent  or  attorney,  48,  95,  96. 

of  the  agent  of  a  corporation,  when  binding  on,  94,  n.  (/),  118,  119. 

of  partner,  when  binding  on  the  firm,  94,  n.  (/). 

of  real  estate  to  partners,  126,  127. 

power  of  infant  to  make  or  ratify,  243,  269,  n.  (jj),  271. 

consideration  of,  implied  by  the  seal,  354. 

pi'oved  and  varied  by  parol  evidence,  355,  356. 

conveyances  of  real  estate  made  by,  414. 

contracts  by,  to  marry,  544. 
BEL  CREDERE  COMMISSION, 

liability  of  factor  under,  78,  81, 

whether  the  guaranty  must  be  in  writing,  78,  500. 
DELECTUS  PERS0NARU3I,  131. 
DELIVERY, 

of  chattels,  442-448. 

(See    Sa-le.) 

stoppage  in  transitu,  when  defeated  by,  482-487. 

by  a  depositary  of  the  deposit,  577. 

to  a  common  carrier,  650-652. 

notice  of,  654,  669. 

to  what  persons  renders  the  carrier  liable,  650,  651,  655-657. 

by  a  common  carrier,  658. 

what  constitutes,  658-661. 

how  affected  by  usage,  660,  661,  671. 

delay  in,  when  excused,  659,  660. 

by  railroad  carriers,  663,  664,  671. 

by  carriers  by  water,  665-670. 

by   bailee,  when   the    ownership  is  in   dispute,   577,   578,    621,  677- 
680. 
DEMAND, 

notes  payable  on,  incidents  of,  217-221. 

of  bills  and  notes,  of  whom,  when,  and  where  to  be  made,  228. 

of  debt  by  pledgee  before  sale  of  the  pledge,  595-600. 
DEPOSITUM, 

bailee's  liability  for,  measure  of,  572-577. 

delivery  of,  by  bailee,  577,  578. 

property  of  bailee  In,  nature  of,  578. 

who  ai'e  chargeable  as  depositaries,  579. 


INDEX.  771 

DESERTION, 

by  husband,  rights  of  wife  uiion,  by  statute,  in  the  different  states  of 
U.  S.,  -306,  note. 
DISSOLUTION, 

of  partnership,  170-173. 

by  assignment  of  a  partner's  interest,  170,  171. 
by  death,  172,  173. 
by  civil  incapacity,  172,  173. 
by  insanity,  172,  173. 
by  a  court  of  equity,  172,  173. 
by  bankruptcy  and  insolvency,  1 73. 
by  war,  1 73. 
DIVORCE, 

for  what  causes  granted,  566. 
rights  of  the  parties  to,  how  affected  by,  566,  567. 
DORMANT  PARTNER, 

liability  of,  48,  n.  (a),  142. 

when  discovered  after  an  unsatisfied  judgment  against  osten- 
sible partner,  12,  n.  (y). 
notice  of  his  withdrawal  not  necessary,  144,  n.  (j). 
respective  rights  of  his  private  and  the  partnership  creditors,  1 75. 
DOAVER, 

in  the  real  estate  of  partnership,  128. 

by  statutory  provision  in  the  different  States  of  U.  S.,  -306,  note. 
DRUNKENNESS, 

contracts  made  during,  311. 
discharge  of  a  servant  on  account  of,  521,  n.  (i). 
DURESS, 

contracts  made  under,  void,  319-322. 

what  constitutes,  319-322. 

by  violence  or  imprisonment,  319. 

by  threats  of  violence  or  imprisonment,  320,  321. 

of  one's  property,  320,  321,  n.  (t). 

contracts  made  under,  voidable,  and  may  be  ratified,  322. 

money  paid  under,  recoverable,  322. 


E. 

EMANCIPATION, 

of  slaves,  342-345. 
ENEMIES, 

alien,  cannot  be  partners,  173. 
EQUITABLE  DEFENCES, 

to  a  chose  in  action  in  the  hands  of  an  assignee,  198. 

to  a  negotiable  bill  or  note  after  maturity,  213,  214,  217. 


1 


772 


INDEX. 


EQUITY, 

contribution,  when  enforced  by,  32-34,  and  notes. 

sales  by  an  agent  to  himself,  and  purchases  of  himself  avoided  by  court 
of,  75. 

resort  to,  -when  necessary  to  recover  a  legacy,  107,  n.  (h). 

remedy  of  partners  in,  139,  140. 

dissolution  of  a  partnership,  decreed  by  court  of,  172,  173. 

application  by  court  of,  of  partnership  funds  to  pay  joint  and  separate 
debts,  174-180. 

governed  by  the  last  settled  account  between  partners,  173. 

rights  of  the  assignee  of  a  chose  in  action  in,  193. 

remedy  of  bailee  in,  when  the  ownership  of  the  thing  bailed  is  disputed, 
578,  621,  679. 

origin  and  jurisdiction  of  courts  of,  413. 

specific  performance  of  a  contract  to  convey  real  estate  enforced  in, 
414. 
EVIDENCE, 

parol,  not  admissible  to  qualify  a  general  release,  162,  n.  (s). 

what,  admissible  to  prove  freedom  or  slavery,  329-332. 

to  prove  incapacity  to  contract,  311,  n.  (»i),  313. 

what,  admissible  to  prove  consideration  of  a  written  contract,  355,  356. 

of  contract  to  marry,  545. 

of  marriage,  559. 

presumjjtion  of  negligence  of  the  common  carrier  in  case  of  injury  to  a 
passenger,  695. 

testimony  of  the  passenger  admissible  to  prove  the  amount  of  his  bag- 
gage when  lost  by  the  common  carrier,  722. 
EXCHANGE, 

rates  of,  included  in  the  damages  of  holder  of  bills  of  exchange,  238, 
239. 
EXCOMMUNICATION,  349. 
EXCOMMUNICATED  PERSONS,  349. 
EXECUTORS  AND  ADMINISTRATORS, 

how  they  act,  107. 

extent  of  their  liability,  107. 

how  assets  in  their  hands  may  be  reached  by  legatees,  107. 

when  personally  liable  on  their  promises  as  such,  108. 
on  awards,  108,  109. 

rights  of  action  of,  and  against,  109-111. 

doctrine  of  a  continuing  breach,  109. 

on  what  contracts  of  deceased  they  may  sue  and  be  sued,  110,  111. 

when  their  rights  begin,  111. 

death  and  survivorship  of,  112. 

executor  de  son  tort,  112. 
■     may  indorse  the  note  of  the  testator,  205. 


INDEX.  773 

EXECUTORS  AND  ADMINISTRATORS,  continued. 

action  for  breach  of  contract  to  marry  does  not  survive  to,  552. 

of  co-surety,  whether  liable  for  contribution,  32,  n.  (e). 

of  a  joint  party,  liability  of,  30,  31. 

of  a  deceased  partner  whose  interest  is  continued  in  the  firm,  173, 

statutory  provisions  in  the  United  States  as  to  administration  upon  prop- 
erty of  deceased  husband  or  wife,  -306,  note- 


FACTOR, 

cannot  delegate  his  authority,  71,  and  n.  (7). 
his.duty  and  power  to  insure,  73,  n.  (x),  80. 
the  authority  of,  when  irrevocable,  58,  (/<). 
when  a  common  carrier  is  liable  as  such,  684. 

(See  Factors  and  Brokers.) 
FACTORS  AND  BROKERS, 

TI7(o  w  a  factor  and  tcho  a  broker,  78. 
Of  jactors  under  a  commission,  78,  81,  500. 
whether  they  are  liaVjlc  as  principals  or  sureties,  78. 
whether  their  contract  is  within  Statute  of  Frauds,  79,  500. 
Of  the  duties  and  rights  of  factors  and  brokers,  79-85. 
•    power  to  pledge  the  goods  of  the  principal,  79,  80. 
cannot  barter,  80,  n.  (>/). 

bound  to  follow  instructions  and  conform  to  the  usages  of  trade,  80. 
not  bound  to  insure,  80. 

may  bind  the  principal  by  acts  Avithin  the  scope  of  the  agency,  81. 
how  the  principal  may  dispose  of  goods  sent  to  him  by  the  factor  with- 
out authority,  81. 
may  be  personally  li.ible  to  principal  when  acting  without  del  credere 

commission,  if  himself  in  default,  or  negligent,  81. 
the  respective  liabilities  of  foreign  and  domestic  factors,  and  of  their 

principals,  81,  82. 
who  are  foreign  factors,  81,  82. 

States  of  the  Union  not  foreign  to  each  other,  82,  n.  (n\. 
conllicting  claims  of  principal  and  foctor  against  purchasers,  88. 
factor  may  act  in  his  own  name,  but  broker  only  in  principal's,  84. 
factor  has  lien  but  broker  none,  84. 
general  rights  and  duties  of,  84,  85. 

authority  of,  not  revocable  when  coupled  with  an  interest,  85- 
FAILURE,' 

of  consideration  total  and  partial,  386-388. 
FELON, 

cannot  be  a  partner,  1 72. 

Go* 


774 


INDEX. 


FEME  COVERT, 

(^See  Married  AVomen.) 
FERRY, 

H<ability  of  the  owner  of,  G57.  • 
FERRYMEN, 

liable  as  common  carriers,  645. 
FIXTURES, 

rights  of  landlord  and  tenant  to,  430,  431. 

rights  of  2:)urchaser  to,  609. 
FORBEARANCE, 

when  a  consideration,  365-370. 

by  creditor,  effect  of  on  a  guarantor's  liability,  512-514. 
FOREIGN  STATES, 

whether  our  States  are  such  as  regards  the  liabilities  of  principals  for 
factors,  82. 

or  as  to  protest  of  bills  of  exchange,  237,  n.  (a). 
FOREIGNERS, 

(See  Aliens.) 
FORWARDING  MERCHANTS, 

liabilities  of,  618-621,  652,  C53.  *  • 

FRAUD, 

of  agent,  liability  of  principal  for,  62,  63. 

of  a  partner,  liability  of  firm  for,  63,  n.  (q). 

of  agent,  unknown  to  the  principal,  vitiates  the  agent's  contract,  52.. 

effect  of,  in  contract,  when  connected  with  inadequacy  of  consideration, 
362. 

effect  of,  in  contract,  when  specific  ^performance  is  sought  in  equity,  414. 

in  a  sale,Avhen  implied  by  the  possession  of  the  vendor,  442. 

in  a  mortgage,  when  implied  by  the  possession  of  the  mtjrtgagor,  453, 
454. 

of  the  vendor  in  a  sale,  461,  463. 

of  creditor  on  the  surety,  497. 

contracts  in  fraud  of  marriage  settlements,  void,  555. 

marriage  obtained  by,  void,  564,  565. 

of  the  OAvner  of  goods,  effect  of,  on  the  liability  of  a  common  carrier,  719. 
FRAUDS,  STATUTE  OF, 

whether  it  recjuires  the  consideration  to  be  in  writing,  6. 

proof  of  a  contract,  how  affected  by,  7. 

whether  it  requires  the  agent's  authority  to  be  in  writing,  42,  43,  n.  (J). 

ratihcation  by  the  principal  of  an  agent's  contract  AAathln,  47. 

how  the  rights  of  an  undisclosed  principal  on  a  written  contract  made 
by  his  agent,  affected  by,  53.  • 

whether  the  guaranty  of  a  del  credere  factor  is  required  by,  to  be  in  writ- 
ing, 78,  79,  500. 

contracts  of  service  within,  529. 


INDEX.  ■        775 

FRAUDS,  STATUTE  OF,  conthmecl. 

a  signing  not  essential  to  a  deed  since,  9G,  n.  (g{j)- 

agent  for  a  corporation  to  sign  the  memorandum  required  by,  who  may 
be,  120. 

when  the  partnership  agreement  must  be  in  writing,  131,  n.  (m). 

contracts  of  novation,  whether  within,  188,  n.  (/),  191. 

an  entire  promise,  partly  within,  void,  379. 

a  guaranty,  when  within,  497-500. 

contracts  to  marry,  when  within,  54C,  547. 

promises  in  consideration  of  marriage  within,  554. 
FREEDOM, 

action  for,  328-333. 

{See  Slaves.) 

G. 
GIFTS, 

to  a  slave,  337-339. 
GOOD-WILL, 

whether  partnership  property,  130. 
GRACE,' 

d.iys  of,  what  are  and  how  counted,  230,  'J34. 
GUARDIANS, 

Of  the  kinds  of  f/uar/Ilans,  113,313. 

considered  as  trustees,  113,  115. 

when  required  to  give  bonds,  113. 
Of  (he  (htti/  and  power  of  a  f/uar/Uan,  114-116. 

have  only  an  authority  and  not  an  interest,  114. 

power  of,  to  convert  the  ward's  i)roperty,  114. 

when  leave  of  court  must  be  obtained,  114,  115. 

duties,  rights,  and  liabilities  of,  115,  IIG. 

powers  of,  not  assignable,  19G,  n.  (a). 

remedies  of  the  ward,  1 15. 

when  guardian  is  personally  liable,  116. 
GUESTS,  "  ^ 

who  are,  628-630. 

rights  of,  62.3-627,  631. 

negligence  of,  good  defence  by  an  innkeeper  for  a  loss  by,  625. 
GUARANTY, 

What  is  a  f/Hiirant>/,  493-495. 

application  of  the  term,  193. 

not  negotiable,  493. 

how  construed,  495. 

rights  and  liabilities  of  guarantor,  495. 
Consideration  of  365,  n.  (/'),  375,  496,  497. 
fraud  in,  497. 


776 


INDEX. 


GUARANTY,  continued. 

Whether  orir/lnal  or  collateral,  494,  497-500. 

when  within  the  Statute  of  Frauds,  369,  n.  (/),  497,  498. 

entry  of,  in  seller's  books,  effect  of,  499. 

by  factor  under  a  del  credere  commission,  78,  500. 
Accejytance  of,  375,  401,  500-502. 
•    notice  of,  501,  502. 
Of  the  change  of  liability,  502-508. 

when  extinguished  by  extension  of  the  guarantor's  liability,  503,  504. 
by  payment  or  novation  of  the  debt,  505,  50G. 

of  a  partnership  liability  extinguished  by  change  in  the  members  of  the 
firm,  506,  507. 

continuing  guaranty,  507,  508. 
How  affected  by  indulgence  to  a  debtor,  509-514. 

delay  of  creditor  to  sue  when  requested  by  surety,  509-512. 

forbearance  by  creditor,  512,  513. 

creditor's  covenant  not  to  sue  for  a  limited  time,  514. 
Of  notice  to  the  guarantor,  b\^. 

guarantor  must  have  notice  of  debtor's  failure  to  pay,  514. 
Guaranty  by  one  in  office,  515. 
Revocation  of  guaranty,  516,  517. 

power  of  a  partner  to  bind  the  firm  by  a  guaranty  in  its  name,  IGl. 


H. 
HIRER  OF  CHATTELS, 

liability  of,  how  measured,  602,  603. 
liability  of,  for  the  negligence  of  his  servants,  604,  605. 
for  theft  or  robbery,  606. 
for  slaves  employed,  603,  n.  (/•),  608,  n.  (b). 
duty  of,  as  to  the  manner  of  using  the  chattel,  608. 

as  to  accounting  for  the  loss  of  the  chattel,  606. 
qualified  property  of,  In  the  chattel,  609. 
qualified  property  of,  when  terminated,  608,  609. 
HIRING  OF  CHATTELS,  491,492. 

{See  Bailment,  and  Hirer  of  Chattels.) 
HIRING  OF  PERSONS,  518-536. 
Servants,  518-532. 

proof  of  term  of  service.,  how  affected  by  the  specified  periods  of  paj'- 

ment,  518,  519. 
liability  of  master  on  an  entire  contract  to  hire,  520,  521,  52  7. 
servant  on  an  entire  contract  to  serve,  522-527. 
how  affected  by  physical  Inability,  524. 
infant  on  an  entire  contract  to  serve,  263,  n.  (/),  268,  523, 
n.  (0. 


INDEX.  777 

HIRING  OF  PERSONS,  continued. 

effect  of  misconduct  of  the  servant,  521,  n.  (k),  52C. 

rescission  of  the  contract  by  mutual  consent,  526 
medical  attendance  on  servant,  master's  liability  for,  527. 
master  not  liable  for  accident  to  servant,  528. 

unless  he  exposes  the  servant,  527,  528. 
for  injury  by  one  servant  to  another,  528. 
testimonial  of  servant's  character,  master's  obligation  to  furnish,  529. 
mutuality  of  contracts  of  service,  529. 
contracts  for  service  within  the  statute  of  frauds  if  not  to  be  performed 

within  a  year,  529. 
hiring  presumed  from  service,  371,  530. 

whether  presumed  from  service  rendered  by  a  child  to  a  parent, 
530,  537,  n.  (u). 
rights  of  a  master  against  a  person  seducing  a  servant  from  his  employ, 

532. 
payment  for  service,  when  presumed,  532. 
Apprentices,  532-536. 

law  governing  the  relation  of,  how  it  arose,  532,  533. 
liability  of,  262,  277,  533. 
duty  of  master  towards,  533,  534. 

liability  of  parties  covenanting  for  good  behavior  of,  534. 
rights  of  master  against  persons  seducing  or  harboring,  535,  536. 
Service  generally,  contracts  for,  537-542. 
implied  promises  of  employer  and  employee,  537,  538. 
service  of  arbitrators,  538. 

attorneys,  538,  539. 
physicians,  539. 
employee's  claim  for  extra  work,  540-542. 
HIRING  OF  REAL  PROPERTY, 

(See  Real  PuorEnxY,  Lease.) 
HOMESTEAD  EXEMPTION, 

by  statutory  provision  in  the  different  States  of  U.  S.,  -306,  note. 
HUSBAND, 

when  liable  for  his  wife's  acts  as  agent,  43,  287,  289,  304. 
cannot  sue  jointly  with  wife  for  assault  and  battery,  20. 
(See  ^L\itKiAGE.) 
HUSBAND  AND  WIFE, 

{See  Mauhiki)  Women.) 


IDIOTS, 


I. 

(See  \<)n   Compotes  Mentis.) 


ILLEGALITY, 

of  consideration,  365,  380,  382. 


778  INDEX. 

IMPOSSIBLE  CONSIDERATIONS,  382-385. 
INADEQUACY, 

of  consideration,  3G2,  363,  414. 
INDORSEE, 

before  maturity,  right  of,  213-217. 

after  maturity,  214-217. 

•when  a  want  of  consideration  is  a  good  defence  in  an  action  by,  215. 

although  he  has  knowledge  of  defence  may  recover  under  innocent  prior 

party's  title,  213. 
of  a  note  payable  to  bearer  or  indorsed  in  blank,  218. 
of  a  forged  note  or  bill,  218. 

{See  Indorsement.     Bills  and  Notes.    Indorser.) 
INDORSER, 

definition  of,  204,  205. 

of  a  blank  note,  205. 

the  executor  of  a  deceased  payee  may  be,  205. 

who  may  be,  206,  212.  ^ 

power  of,  to  restrict  the  indorsement,  212. 

when  want  of  consideration  is  a  good  defence  in  an  action  against,  215, 

216. 
when  the  note  is  indorsed  in  part,  218. 
without  recourse,  219. 
of  a  forged  bill  or  note,  220. 
presentment  for  acceptance  necessary  to  charge,  221. 

payment  necessary  to  charge,  223-227. 
of  whom,  when,  and  where,  the  demand  should  be  made,  227-230.  * 

notice  to,  of  non-payment,  231-236. 
when  discharged  by  delay,  235-237. 
of  a  bill  of  lading,  239. 

{See  Indorsement.    Bills  and  Notes.) 
INDORSEMENT,  » 

Of  negotiahle  bills  and  notes,  202-206.  .^ 

general  principles  and  advantages  of,  202-204.  * 

how  made,  204,  205. 
in  blank  and  in  full,  205. 

of  the  note  of  a  testator  may  be  made  by  his  executor,  205. 
liability  of  an  indorser  of  a  blank  note,  205,  206,  n.  ((7). 
by  party  not  payee  or  indorsee,  effect  of,  206. 
an  agent's  authority  to  draw,  not  equivalent  to  an  authority  to  indorse, 

43,  n.  (rt). 
note  payable  to  bearer,  how  transferred,  205,  206. 
presumption  in  favor  of  the  holder's  title,  206. 
when  party  putting  his  name  on  back  of  a  note  Is  maker,  when  indorser, 

when  guarantor,  206. 

{See  Bills  and  Notes.) 


INDEX.  779 

INDORSEMENT,  continued. 

Of  the  essentials  of  negotiable  bills  and  notes,  20G-211. 
may  be  payable  to  the  maker's  own  order,  206,  207. 
may  by  statute  be  under  seal,  207. 
should  be  signed  by  the  maker  at  the  bottom,  208. 
must  contain  words  importing  a  promise  to  pay,  209,  n.  (j). 
must  be  payable  in  money,  209. 
not  dependent  on  a  contingency,  210. 
consideration  of,  presumed,  211. 
parties  to,  211. 
Of  indorsement,  211,  212. 
■when  it  passes  the  property  in  a  bill  or  note,  212. 
■who  may  indorse,  212. 

■when  the  negotiability  may  be  restrained,  212. 

■when  party  aware  of  defence  by  maker  against  payee,  may  recover  on 
the  strength  of  intermediate  innocent  holder's  title,  213. 
Of  indorsement  after  maturit>/,  213-21G. 
respective  rights  of  holders  and  makers  before  maturity,  213. 
right  of  party  taking  under  suspicious  circumstances,  213,  214. 
equities  between  original  parties  opened  when  transferred  after  maturity, 

214. 
only  equities  arising  from  note  itself  let  in,  215. 
consideration  of  bills  and  notes  when  inquirable  into,  215. 
when  the  notes  are  accommodation  notes,  21G. 

whether  a  preexisting  debt  is  a  sufficient  consideration  for  a  transfer,  so 
as  to  shut  out  equitable  defences,  21 G. 
Notes  on  demand,  217-221. 

not  entitled  to  days  of  grace,  229. 

when  overdue,  217. 

when  bank  checks  are  overdue,  217,  218. 

negotiability  of  bills  ceases  on  payment,  218. 

indorsement  in  part,  effect  of,  218. 

liability  of  the  holder  transferring  a  forged  note  payable  to  bearer,  218. 

general  liability  of  indorser,  how  avoided,  219. 

such  liability  strictly  conditional,  219. 

liability  of  parties  when  the  names  of  previous  parties  were  forced,  219, 

220. 
effect  of  payment  in  forged  bills  or  the  bills  of  an  insolvent  bank,  220, 
221. 
Of  presentment  for  acceptance,  221,  222. 
by  M'hom,  to  whom,  and  at  what  time,  to  be  made,  221,  222. 
in  case  of  non-acceptance,  when  presentment  must  be  made  to  another, 

337. 
bills  payable  a  certain  time  after  sight  or  after  date,  when  to  be  pre- 
sented, 221. 


780 


INDEX. 


INDORSEMENT,  continued. 

to  be  made  during  proper  hours,  221,  228. 
what  amounts  to  an  acceptance,  222. 
Of  presentment  for  payment,  223-228. 
why  necessary  to  hold  the  indorsers,  223. 
when  to  be  made,  223,  224. 
excuses  for  neglect  of,  224,  226. 
where  to  be  made  when  the  bill  or  note  Is  payable  at  a  particular  place 

specified,  226,  227,  228. 
OftcJiom,  and  ivhen,  and  where  the  demand  should  he  made,  228-231. 
when  to  be  made,  228,  229.    ■ 

effect  of  usage  In  regulating  demand  and  notice,  228,  229. 
days  of  grace,  what  are,  and  what  bills  and  notes  are  entitled  to,  229,  230. 
how  demand  should  be  made,  and  notice  given  Avhen  the  bill  is  drawn  in 

one  country  and  payable  In  another,  230. 
Of  notice  of  non-payment,  231-236. 
waiver  of,  231,  232,  233. 
excuses  for  neglect  of,  232. 

when,  how,  and  by  whom  it  may  be  given,  233,  234,  235. 
agent  of  holder  treated  as  a  holder  for  purpose  of  giving,  234. 
jiarty  giving  must  be  himself  holder,  or  indorser  fixed,  235,  236. 
when   Sundays  and  holidays  are  excluded  In  the  computation  of  the 

proper  time,  234. 
purpose  of  the  notice,  and  its  form,  234,  235. 
if  party  giving,  notice  does  not  know  the  truth  of  it,  235,  n.  (f). 
indorser  discharged  by  the  binding  promise  of  the  holder  to  discharge 

or  delay  suit  against  the  maker  or  acceptor,  235,  236. 
whether  this  rule  operates  in  the  case  of  voluntary  assignments  in  insol- 
vency of  the  maker's  or  acceptor's  elfects,  236. 
Of  protest,  237,  238. 
required  of  foreign  bills,  237. 

notary's  certificate  not  evidence  of,  in  cases  of  inland  bills,  237. 
what  are  foreign  bills,  237,  n.  (a). 
acceptance  suj>ra  protest,  rights  and  liabilities  of  person  making  It,  237, 

238. 
Of  damayes  for  non-payment  of  bills,  238. 
mils  of  lading,  quasi  negotiable,  239. 

stoppage  in  transitu,  when  defeated  by  indorsement  of,  487-489. 
what  amounts  to  such  indorsement,  239. 
Of  property  passing  with  the  possession,  239,  240,  241. 
what  instruments  entitled  to  the  privileges  of  negotiable  bills  and  notes, 

240. 
Avhcther  bonds  in  blank  are  so  or  not,  240. 
State  bonds,  railroad  bonds,  certificates  of  stock  in  a  corporation,  240, 

n.  (c). 


INDEX.  781 

INDORSEiVIENT,  continued. 

respective  riglits  of  holder  and  maker  of  lost  bills  and  notes,  240,  241. 

indorsement  of  a  writ  by  an  attorney,  99,  n.  (u). 
INFANTS, 

JncajxicUy  of,  to  contract^  242-246. 

why  allowed  by  the  law,  242. 

who  are  infants,  242. 

when  a  person  becomes  of  age,  243. 

defence  of  incapacity  waived  by  a  new  promise  after  the  disability  is 
removed,  242,  n.  (s),  3G0, 

contracts  of,  when  held  void,  243,  244. 

when  voidable,  how  confirmed,  243. 
for  necessaries,  binding,  244. 

cannot  borrow  money,  246. 

what  arc  necessaries,  and  how  determined,  245,  246,  259,  260. 

if  father  has  given  son  his  time,  and  published  that  he  will  not  be  liable 
for  him,  250,  n.  (p). 
Of  the  ohligations  of  parents  in  respect  to  infant  children,  247-260. 

whether  the  father  is  legally  liable  for  the  contracts  of  his  minor  chil- 
dren for  necessaries,  247-253. 

rules  determining  his  liability,  253. 

when  a  stranger  may  recover  of  parent  for  necessaries  furnished  to  his 
child,  250,  n.  {})),  254,  392,  n.  (v). 

whether  the  child's  property  can  be  applied  to  its  own  support  when  the 
father  is  able,  256. 

whether  the  mother  is  bound  to  support  her  children,  the  father  beinf 
dead,  256. 

husband  not  bound  to  support  the  children  of  his  wife  by  a  former  hus- 
band, 257. 

when  not  presumed  liable  to  them  for  their  services,  257. 

right  of  the  parent  to  the  earnings  of  the  child,  how  abandoned,  257, 
258. 

whether  the  parent's  liability  for  the  child's  necessaries  ceases  on  his 
relinquishing  all  right  to  his  services,  258. 

common  law  liability  of  parent  ceases  on  his  becoming  of  age,  259. 

statute  liability  of  parents  for  indigent  adult  children,  and  of  children 
for  indigent  parents,  259,  260. 

liability  of  persons  representing  an  infant  in  a  partnership,  124,  125. 
Voidable  contracts  for  necessaries,  260-263. 

contracts  of  an  infant  for  necessaries  inquirablc  into,  260. 

only  liable  for  their  fair  value,  260. 

cannot  bind  himself  by  his  contracts  in  trade,  261,  262. 

whether  liable  on  his  covenants  as  an  apprentice,  262,  533. 

may  avoid  his  contracts  of  service,  262,  n.  (<?). 

cannot  avoid  contracts  to  do  what  he  is  legally  bound  to  do,  262. 
VOL.  I.  G6 


782  INDEX. 

INFANTS,  continued. 

infant  Avife  cannot  bar  hor  right  to  dower,  263. 
Of  the  torts  of  an  infant,  263-2G8. 
liable  for  frauds  and  other  torts,  2G3,  264. 
liable  for  falsely  representing  himself  to  be  an  adult,  whereby  others 

are  induced  to  contract  with  him,  264,  265. 
whether  goods  sold  to  him,  still  remaining  in  his  possession,  for  which  he 

refuses  payment,  may  be  reclaimed  l)y  the  vendor,  266,  267. 
if  he  has  received  goods  and  paid  for  them,  he  cannot  recover  the  money 
without  returning  the  goods,  267. 
Of  the  effect  of  an  infant's  avoidance  of  Ids  contract,  268,  269. 
respective  rights  of  an  adult  and  an  infant  in  a  contract,  when  the  prop- 
erty bought  or  sold  remains  in  the  possession  of  either  party,  268. 
whether  an  infant  can  recover  for  the  work  done  on  an  entire  contract 

which  he  rescinds,  263,  n.  (/),  268,  523,  n.  (/). 
when  he  may  disaffirnt  a  contract,  243,  268-274,  279. 
Of  ratif  cation,  269-275,  360. 
what  contracts  of  an  infant  are  subject  to,  243,  244,  261,  n.  (ij),  274. 
what  amounts  to,  268,  269-271,  309,  n.  (j). 

whether  a  sealed  instrument  may  be  ratified  by  parol,  269,  n.  (?/),  272. 
mere  neglect  to  disaffirm,  with  other  facts,  may  be  equivalent  to,  271. 
mere  acquiescence  in  conveyances  of  real  estate  is  not,  271,  273. 
disaffirmance  by  a  new  conveyance,  273. 
mere  acquiescence  in  purchases  confirms  tliem,  273,  n.  (i). 
Who  may  take  advantage  of  an  infant's  disability,  275-277,  544,  545. 
Of  the  marriage  settlements  of  an  infant,  277,  278. 

Infant's  liability  tcith  respect  tofxed  property  acquired  by  his  contract,  278- 
282. 
liable  for  burdens  attached  to  property  devolved  on  him  by  marriage  or 
■    descent,  279.- 

may  disaffirm  leases  to  him  during  his  minority,  279. 
may  on  reaching  majority  disaffirm  that  disaffirmance,  279. 
not  liable  as  other  persons  on  contracts  which  owe  their  validity  to 

statutes,  281. 
plea  of  infancy,  282. 

rights  of  surety  for,  on  contracts  for  necessaries,  494. 
contracts  of,  to  Avork  for  a  time  certain,  263,  n.  (/),  268,  523,  n.  (I). 
contract  of,  to  marry,  276,  544,  545. 
contracts  of  marriage,  563,  564. 
INNKEEPERS,  623-632.. 

persons  liable  as  such,  623. 
infants  not  responsible  as,  263. 
liability  of,  how  measured,  624,  625. 

when  discharged  by  the  conduct  of  the  guest,  626,  627. 
distinguished  from  that  of  boarding-house  keepers,  628,  and  n.  (7j). 


INDEX.  783 

INNKEEPERS,  continued. 

duty  of,  to  receive  guests,  627. 

to  admit  drivers  of  public  coaches,  627. 
persons  entitled  to  the  legal  rights  of  guests,  628-630. 
when  goods  are  within  the  custody  of,  626,  627,  631. 
lien  of,  632. 
INSANE  PERSONS, 

(See  NoN  Compotes  Mentis.) 
INSOLVENCY, 

of  veudee  in  cases  of  stoppage  in  transitu,  476-478. 
voluntary  assignments  of  a  maker  of  a  note  in,  effect  of,  on  the  liability 
of  iudorsers,  236,  237. 

(See  Bankrupts  and  Insolvents.) 
INSURANCE, 

agent  to  subscribe  policies,  how  his  authority  is  implied,  43. 
on  life  of  husband  for  benefit  of  wife,  statutory  provisions  in  U.  S.  as  to, 
-306,  note. 
INTEREST, 

when  agent  is  chargeable  with,  on  balance  in  his  hands,  77. 
when  a  trustee  is  chargeable  with  simple  or  compound,  103,  115. 
when  a  guardian,  115. 
authority  coupled  with,  not  revocable,  61,  62,  85. 

cannot  be  executed  b}-  an  infant,  94,  u.  (e). 

J. 
JOINT  PARTIES, 

Whelhtr  parties  are  joint  or  several.,  11-21. 
presumption  of  law  as  to,  11. 

as  to  liabiliti/,  dependent  on  the  terms  of  the  contract,  11. 
when  both  joint  and  several,  12. 

treated  either  as  joint  as  to  all  of  the  obligors,  or  as  sev- 
eral as  to  all,  12. 
cases  of  joint  liability,  of  several  liability,  and  of  joint  and 

several  liability,  classified,  11,  n.  (/). 
unsatisfied  judgment  against  a  debtor,  when  a  bar  to  an 
action  against  his  co-debtor,  12,  n.  (j). 
as  to  ri(/ht,  not  rendered  several  by  merely  designating  the  share  of  each, 
without  distinct  promises  to  each,  12,  13. 
either  joint  as  to  all  of  the  obligees,  or  several  as  to  all,  13. 
must  all  join  in  a  suit  on  a  contract,  joint  and  several  in  its 

terms,  to  enforce  a  benefit  accruing  to  only  one,  13,  14. 
in  general  joint,  when  their  interest  in  the  contract  is' joint, 

and  several  when  that  interest  is  several,  14. 
what  such  interest  is,  14. 
not  joint  or  several  as  to  the  same  covenant,  at  the  option  of 


784  INDEX. 

JOINT  PARTIES,  continued. 

the  covenantees,  but  must  sue  jointly  if  tliey  can,  14,  and  n.  {(j). 
"whether  an  obligation  or  right  is  joint  or  several,  by  what  rules  to  be 

determined,  14-20. 
dependent  particularly  on  the  entireness  of  the  consideration,  14-20. 
obligations  and  rights  belonging  to  each  class  may  co-exist,  20. 
rule  in  cases  of  contracts  apjilied  to  injuries  received,  20. 
cases  classified  whei-e  it  was  held  that 

a  joint  action  was  properly  brought,  20-22, 

•n.  (c). 
a  several  action  should  have  been  joint,  22, 

23,  n.  (c). 
a  several  action  was  properly  brought,  23- 

25,  n.  (c). 

a  joint  action  should  have  been  sevei'al,  25, 

26,  n.  (c). 
Incidents  of  joinder,  21-31. 

authority  of,  to  bind  each  other,  24. 

accord  by  one,  efi'ect  of,  25. 

release  by  one,  effect  of,  26. 

release  of  one,  effect  of,  27,  28. 

will  sometimes  be  only  a  covenant  not  to  sue  that  one,  28. 

same  rules  applied  In  cases  of  torts  as  In  contracts,  28. 

discharge  of  one  by  operation  of  law  does  not  discharge  others,  29. 

operation  of  release  to  one  may  be  restrained  by  its  tei'ms,  29. 

accord  with  one  to  discharge  others  must  be  complete,  and  amount  to 

satisfaction,  29. 
notice  to  quit  by  one,  433. 
liability  of  joint  trustees  or  executors,  29,  30. 
liability  of  surviving  joint  party,  30,  31. 
liability  of  the  representatives  of  one  joint  party  to  the  other  and  to  the 

creditor,  30,  31. 
right  of  surviving  joint  obligee,  31. 
Contribution  hetiveen,  31-37. 
when  and  on  what  principle  enforced,  32-34. 
by  a  surety  against  the  representatives  of  a  deceased  co-surety,  32,  n. 

by  surety  against  co-surety  and  against  principal  for  costs  of  defending 

suit,  33,  n.  (/). 
fixed  and  positive  obligation  to  pay,  necessary  to,  33. 
must  not  be  a  liability  as  co-partner,  34. 
how  the  claim  for,  is  presented  and  adjusted,  34. 
contract  of,  is  a  several  contract,  35. 

dates  from  what  time,  35,  36. 
right  to,  does  not  exist  between  successive  indorsers,  35. 


INDEX.  785 

JOINT  PARTIES,  continued. 

laoi'  in  favor  of  a  surety  as  against  a  guarantor,  35. 

•when  the  right  to  begins,  35,  36. 

none  being  wrongdoers,  36. 

except  where  the  act  is  of  a  doubtful  character, 
and  done  bona  fide,  36. 

controlled  by  circumstances  showing  a  different  understanding,  3  7. 

enforced  in  some  countries  of  Europe,  but  not  by  the  civil  law,  37. 
JOINT  PURCHASERS, 

notice  to  one  not  notice  to  all,  6-4,  n.  (ii). 
JOINT-STOCK  COMPANIES, 

how  constituted,  121. 

difference  between  and  partnerships,  121,  122. 

power  of  a  managing  committee,  122. 

power  of  a  member  of,  122. 

what  constitutes  a  member,  122,  123. 

in  what  cases  a  member  can  sue  the  company,  123. 
JUDGMENT, 

against  one  debtor,  when  a  bar  to  an  action  against  his  co-debtor,  12, 

»•  O')- 

assignable,  196,  197. 

confession  of  by  an  infant,  whether  void  or  voidable,  243,  244. 

L. 
LAND, 

covenants  annexed  to,  109,  199. 

(&e  Real  Property.) 
LANDLORli, 

liability  of,  422. 

rights  of  to  away-going  crops,  430. 
to  fixtures,  431. 

{See  Real  Prorerty,  Lease.) 
LEASE, 

hiring  of  real  property  effected  by,  421. 

description  of  property  in,  what  sufficient,  421. 

liability  of  lessor  incurred  by,  422. 

liability  of  lessee  incurred  by,  423-426. 

assignment  of,  426. 

forfeiture  of,  426,  427. 

surrender  of,  by  operation  of  law,  429. 

rights  of  lessor  and  lessee  to  away-going  crops  and  fixtures,  430-433. 
LEGACIES, 

how  recovered  by  legatees,  107  and  n.  (li). 

peculiarly  under  jurisdiction  of  courts  of  equity  in  England,  107. 

how  they  may  be  enfoi-ccd  against  the  executor,  107,  108. 

6G* 


786 


INDEX. 


LETTER, 

contract  bj',  406-408,  440. 
LETTER  OF  CHATTELS, 

rights  of,  GO 2-6 07. 

when  he  may  repossess  Wmself  of  the  chattel,  607. 

when  bound  to  repair,  607. 

compensation  of,  609. 

(See  HiREK  OF  Chattels.) 
LEX  LOCI, 

the  demand  of  bills  and  notes  and  notice  thereof,  how  affected  by,  229, 
230. 

contract  of  marriage  governed  by,  565. 
LIABILITY, 

o?  2yrincipal  for  the  acts  of  his  agent,  38. 

how  incurred,  42-47. 

extent  of,  42,  49-53,  62. 

how  terminated,  58-62. 

of  an  agent,  to  third  persons,  54-58. 
to  his  principal,  69-77. 
{See  Agents.    Attorneys.    Principals.)  . 

o?  a  partner,  when  it  exists,  131-138,  146. 

extent  of,  151-168. 

of  dormant  partner,  12,  n.  (/),  48,  n.  (a),  142. 
{See  Partnership.) 

o?  \\\G  parent  for  necessaries  furnished  to  his  child,  247-257. 

of  the  husband,  for  necessaries  furnished  to  his  wife,  286-306. 

of  the  master,  for  his  slave,  334,  335. 

to  an  action,  incurring  of,  a  valid  consideration,  369. 

of  lessor,  422. 

of  lessee  or  tenant,  423-428. 
LIEN, 

of  foctor,  80,  84. 

of  partner,  and  creditors  of  jiartner,  on  the  partnership  property,  1 74- 
176. 

of  vendor,  441,  476,  479. 

of  attorney,  538,  539. 

of  finder  for  his  reward,  580,  n.  (li). 

of  pledgee,  593,  600. 

of  bailee  in  locatio  operis  faciendi,  617. 

of  innkeeper,  632. 

of  private  carrier,  634,  681. 

of  common  carrier,  681. 

when  the  goods  are  received  from  one  not  the  owner 
or  his  agent,  681-684. 

abandonment  of,  681,  n.  (a). 


INDEX.  787 

LIFE  INSURANCE, 

{See  Insurance.) 
LBIITATIONS,  STATUTE  OF, 

how  it  affects  contribution  between  parties,  32,  n.  (e),  36,  37. 
promise  to  pay  a  debt  barred  by,  309,  n.  (y),  360. 

debt  barred  by,  not  revived  by  the  pi-omise  of  a  spendthrift  under 
guardianship,  315. 
LIMITED  PARTNERSHIPS, 
how  constituted,  185. 
liabiHties  incurred  by,  186. 
LITIGATION, 

prevention  of,  a  valid  consideration,  363-365. 
LOCATIO  OPERIS  FACIENDI,  610-632. 

(See  Bailment.) 
LOCATIO  RET,  0 

(See  Bailment,  and  Hirer  of  Chattels.) 
LOSER  OF  BILLS  OR  NOTES, 

rights  of,  241. 
LOSSES, 

of  partnership,  sharing  of,  141. 
LUNACY, 

of  principal  revokes  the  agent's  authority,  61,  n.  (/). 
of  partner  dissolves  the  partnership,  172,  173. 

(See  NoN  Compotes  Mentis.) 
LUNATICS, 

incapacity  of,  to  make  a  contract,  310-314. 

(See  NoN  Compotes  Mentis.) 


M. 
MAJORITY, 

power  of,  in  a  corporation,  120. 
of  jjartners,  power  of,  156,  168,  169. 
MANDATUM, 

bailee's  liability  for,  ground  of,  372,  580-585. 

measure  of,  586-589. 
distinction  between  mandatary's  liability  ex  contraclu  and  ex  delicto, 
585,  586. 
MARINERS, 

(See  Seamen.) 
MARRIAGE,  543-568. 

Contraclu  to  marri/,  543-554. 
valid  in  law,  543. 
must  be  reciprocal,  544. 
by  deed,  544. 


788  ^      INDEX. 

MARRIAGE,  continued. 

of  infants,  276,  376,  544. 

under  the  age  of  consent,  277. 

proof  of,  545,  546. 

when  within  the  Statute  of  Frauds,  546,  547. 

without  specification  of  time,  when  to  be  performed,  547. 

on  condition,  547,  551. 

on  request,  548. 

defences  to,  548-551. 

damages  for  breach  of,  551-553. 

whether  seduction  may  enhance,  553. 
Promises  in  relation  to  settlements  or  advances^  554,  555. 

consideration  of,  554. 

within  the  Statute  of  Frauds,  554. 
iP  contracts  in  fraud  of,  void,  555. 

Contracts  in  restraint  of  marriage,  556. 

marriage  brocage  contracts,  556. 
Contracts  of  marriage,  556-565. 

notice  of  revocation  of  the  wife's  previous  authority  as  agent,  60,  n.  (J). 

effect  of,  on  the  rights  of  the  parties,  283,  284. 

of  slaves,  illegal,  340,  341. 

a  valuable  consideration,  357. 

what  constitutes  marriage,  556-563. 

of  710 n  compotes  mentis,  void,  563. 

of  infants,  563  and  n.  (a;),  564. 

obtained  by  fraud,  void,  564,  565. 

within  the  pi'ohibited  degi'ees,  548,  563. 

governed  by  the  lex  loci  contractus,  565. 
Divorce,  566-568. 

for  what  causes  granted,  566. 

effect  of,  on  the  rights  of  parties  to,  566,  567. 

divorce  a  mensa  et  thoro,  567,  568. 
MARRIAGE  SETTLEMENTS, 

of  an  inflint,  277,  278. 

consideration  of,  554. 

within  the  Statute  of  Frauds,  554. 

contracts  in  fraud  of,  void,  555. 

statutory  provisions  in  the  different  States  of  the  United  States,  relative 
to,  -306,  note. 
MARRIED  WOMEN,  CONTRACTS  OF, 

Of  the  general  effect  of  marriage  on  the  rights  of  the  jmr ties,  283,  284. 
Of  the  contracts  of,  made  before  marriage,  284-286. 

may  be  appropriated  by  the  husband  to  his  benefit,  284. 

how  lu!  may  reduce  her  choses  in  action  into  possession,  285. 

when  husband  and  wife  must  join  in  an  action,  285,  286. 


INDEX.  789 

MARRIED  WOMEN,  COXTRACTS  OF,  continued. 
liability  of  husband  for  wife's  debts,  28G. 
when  husband  is  an  infant,  286. 
his  estate  not  liable,  unless,  286. 
but  her  liability  revives,  286. 
Ills  liability  upon  her  death,  286. 
Of  the  contract  of  a  married  woman  made  during  the  marriage^  286-306. 
cannot  bind  herself  by  a  contract  during  coverture,  286. 
whether  her  contract  made  during  coverture  may  be  ratified  after  cov- 
erture has  terminated,  361. 
her  husband  entitled  to  the  benefit  of  her  earnings,  and  gifts  to  her,  286. 
whether  he  may  adopt  her  executory  contracts,  286,  287. 
when  her  authority  to  act  for  him  may  be  implied,  287. 

must  be  express,  289. 
when  she  binds  him  by  her  contracts  in  trade,  or  her  drawing  or  in- 
dorsements of  bills  and  notes,  292. 
husband  not  liable  on  contracts  where  she  is  dealt  with  on  her  own  ac- 
count, 288,  289. 
his  liability  for  necessaries  furnished  to  her  during  cohabitation,  289- 
291. 
during  separation,  255,  293,  294. 
when  the  separation  is  occasioned  by  the  adultery  of  either, 

or  both,  295. 
when  he  receives  her  back  after  her  adultery,  296,  297. 
when  she  leaves  him  without  just  cause,  296. 
after  she  offers  to  return,  296,  297.  # 

when  the  separation  is  voluntary,  297-301,  302. 
his  liability  for  necessaries  furnished  to  a  woman  whom  he  has  held  out 

as  his  wife,  43,  n.  (/),  60,  n.  (/),  294,  n.  (/>),  295,  n.  (r),  304. 
infant's  liability  for  necessaries  furnished  to  his  wife,  245. 
effect  of  agreements  of  separation  between  husband  and  wife,  297-303. 
•whether  the  husband  is  liable  for  professional  services  of  an  attorney  in 
prosecuting  legal  proceedings  against  him  on  account  of  his  wife,  303. 
illegality  of  marriage,  whether  it  is  a  defence  to  a  suit  against  the  hus- 
band for  wife's  debts  incurred  before  marriage,  305. 
when  she  is  considered  as  a  feme  sole  during  coverture,  305,  306. 
cannot  indorse  a  note,  212. 

not  barred  of  dower  by  joining,  when  an  infant,  her  husband  in  a  con- 
veyance, 263. 
statutory  provisions  in  the  United  States  as  to  the  contracts,  rights  and 
liabilities  of,  -306,  note. 
MASTER, 

liabilities  of,  for  his  servants,  86-93. 

{See  Si:rv.\xts.) 


790  INDEX. 

MASTER,  continued. 

of  a  vessel,  .66,  67. 

{See  Shipmasters.) 
and  slave,  relation  of, 

{See  Slaves.) 
and  apprentice,  relation  of, 

{See  Apprentices.) 
MATURITY, 

of  negotiable  paper,  rights  of  holders  of,  before  and  after,  213-216,  217. 
MISTAKE  OF  LAW, 

obligation  acknowledged  under,  not  binding,  363, 
MORTGAGE, 

of  chattels,  452-455. 

at  common  law,  453. 

by  statute,  453. 

distinction  between  a  mortgage  and  a  pledge,  452,  n.  (.ra:), 

595-598. 
possession  by  the  mortgagor,  effect  of,  453. 
of  chattels  to  be  purchased,  453,  454. 
mortgagor's  right  of  possession,  how  acquired,  454,  n.  (c). 
right  of  mortgagor  to  assign  his  right,  197. 
MOTHER, 

not  liable  for  the  support  of  her  children  by  a  deceased  husband,  256. 


•  N. 

NECESSARIES, 

infant's  contracts  for,  binding,  244. 

what  are,  244-246,  261. 

whether  a  father  is  liable  for,  when  furnished  to  his  child,  247-255,  258, 
259. 

whether  a  mother  is,  256. 

contracts  of  infants  for,  inquirable  into,  260. 

only  liable  for  their  feir  value,  260. 

husband's  liability  for,  furnished  to  their  children  by  the  wife  after  sepa- 
ration, 255. 

furnished  to  the  wife,  liability  of  husband  for,  255,  289-304. 

furnished  to  a  woman  cohabited  with  a,s  wife,  43,  n.  (Z),  294,  n.  (p),  296, 
n.  (i'),  304. 

furnished  to  a  lunatic,  his  liability  for,  312. 

furnished  to  a  slave,  liability  of  the  master  for,  336. 
NEGLIGENCE, 

of  a  servant,  master  liable  for  injury  done  to  third  persons  by,  86-92. 

distinction  between  gross  negligence  and  mala  Jidcs,  214,  n.  (o),  571. 


INDEX.  791 

KEGLIGEXCE,  continued. 

what  degree  of,  renders  a  depositary  liable,  58G-589. 
a  borrower,  74,  n.  (2),  590. 
a  pledgee,  591. 
a  liirer,  602,  603. 

degrees  of,  74,  n.  (z),  570. 

presumption  of,  when  the  hirer  does  not  account  for  the  injury,  606. 
(See  Bailment.    Innkeeper.     Common  Cabriek.) 
NEGRO, 

presumed  to  be  a  slave,  329,  330. 
NEW  PARTIES, 

by  novation,  187-191. 

(See  XovATiON.) 

by  assignment,  192-201. 

(^ee  Assignment.) 

by  indorsement,  202-241. 

(See  Indorsement.) 
NOMINAL  PARTNERS, 

liability  of,  145,  146. 
NON  COMPOTES  MENTIS, 

cannot  marry,  563. 

cannot  contract,  310. 

by  drunkenness,  310,  n.  (»;),  311. 

by  lunacy,  312. 

appointment  of  guardians  of,  under  statute,  313,  314. 

finding  of  lunacy  by  a  competent  court,  when  conclusive  proof  of,  313. 

imbecility  of  intellect  in  a  party  to  a  contract,  314. 
NOTICE, 

by  an  unauthorized  agent,  when  it  may  be  ratified,  45,  n.  (//). 

of  the  revocation  of  an  agent's  authority,  59-62. 

to  an  agent  is  notice  to  his  principal,  64. 

when  it  may  be  given,  so  as  to  affect  the  principal,  63,  n.  (s). 

to  the  principal  is  notice  to  the  agent,  66,  n.  (yy)- 

how  made,  so  as  to  affect  a  corporation,  66. 

how  a  purchaser  from  a  partnership  is  aflected  by,  129,  130. 

of  a  partner's  withdrawal  from  tlie  firm,  143,  144,  145. 

to  the  other  partnera  of  a  partner's  withdrawal,  169,  n.  (/*). 

to  one  partner  affects  the  firm,  163. 

to  one  joint  jmrchaser,  not  notice  to  the  others,  64,  n.  (u). 

to  a  debtor  of  the  assignment  of  the  debt,  effect  of,  198,  199. 

of  non-jinijiiient  of  a  note  or  bill,  231-237. 

waiver  of,  232. 

excuses  for  neglect  of,  232. 

when,  where,  and  how  given,  233-235.      • 

by  a  parent  of  the  emancipation  of  his  son,  258,  259. 


792  INDEX. 

NOTICE,  continued. 

by  a  liusband  of  the  revocation  of  his  wife's  implied  aiitliority,  289. 

of  a  wife's  adultery,  to  a  tradesman  supplying  her  with  necessaries,  not 
requisite,  295,  n.  (r). 

of  a  wife's  separate  allowance,  301,  302. 

of  the  acceptance  of  a  guarantj-,  501. 

of  the  default  of  debtor  under  a  guaranty,  51'1. 

to  a  carrier  necessary  to  stoppage  in  transitu,  45,  n.  (//),  477. 

to  the  pledgor  of  the  sale  of  the  pledge,  595-602. 

to  a  common  carrier  of  the  delivery  of  goods,  654. 

by  a  common  carrier  of  the  arrival  of  goods,  660-662. 

by  railroad  companies,  663,  664. 

by  carriers  by  water,  665, '668,  669,  670. 

liability  of  common  carriers,  to  what  extent  limited  by,  707-718. 
NOTICE  TO  QUIT, 

who  entitled  to,  432,  433. 

svifhciency  of,  433. 

eflfect  of,  434. 

by  an  unauthorized  agent,  when  It  may  be  ratified,  45,  n.  (//). 

by  one  partner,  a  valid  notice  for  the  firm,  163. 

by  an  agent  of  an  agent,  must  be  recognized  by  the  principal,  71,  n.  (r^). 
NOVATION, 

defined  and  illustrated,  187,  188. 

what  is  necessary  to,  188-191. 

old  debt  must  be  absolutely  discharged,  189. 

whether  contracts  of,  are  within  the  Statute  of  Frauds,  187,  n.  (?),  191. 

whether  an  accepted  order  for  less  than  the  entire  debt  Is  a  discharge  of 
the  whole,  191. 

guaranty  of  debt  discharged  by,  505,  506. 
NUDUM  PACTUM,  353. 


O. 

{See  Assent.) 


OFFERS, 

OUTLAWS,  348,  349. 
OUTLAWRY, 

consequences  of,  348. 


PARENT, 

whether  liable  for  necessaries  furnished  to  his  child,  247-256. 
liability  of,  when  the  clilld  has  sufficient  property  of  Its  own,  256. 
right  of,  to  the  custody  and  earnings  of  his  child,  257. 


INDEX.  793 

PARENT,  continued. 

whether  his  liability  ceases  on  his  relinquishing  all  claims  to  his  services, 

258. 
liability  of,  by  statute,  for  his  indigent  adult  children,  259. 
(See  Infants.) 
PAROL  CONTRACTS, 
what  are,  7. 

consideration  of,  how  proved,  354,  355,  356. 
PAROL  EVIDENCE, 

not  admissible  to  qualify  a  general  release,  162,  n.  (s). 

when  admissible  to  prove  or  vary  the  consideration  of  a  written  contract, 

355,  356. 
not  admissible  to  vary  or  add  to  written  warranty,  472. 
PARTIES, 

classification  of,  9,  10. 
(See  Contracts.    Joixt  Parties.     Agents.     New  Parties.) 
PARTNERS, 

liability  of  dormant,  on  written  contracts  of  copartners  not  signed  by 
them,  48,  n.  (a), 
after  separate   unsatisfied  judgment   against   the 
ostensible  partner,  12,  n.  (J). 
right  of  surviving,  to  sue  on  paper  of  the  firm,  21,  n.  (c). 
when  should  sue  jointly,  20-26,  n.  (c). 

(See  Joint  Parties,  passim.) 
contribution  between,  not  enforced,  32,  n.  (c),  34,  n.  (f). 
power  of,  after  dissolution,  to  indorse  in  the  name  of  the  firm,  44,  n.  (tj). 
liability  of,  for  the  frauds  of  each,  63,  n.  (q). 
how  a  contract  under  seal,  made  by  one  partner,  may  be  authorized  or 

ratified,  94,  n.  (/). 
one  partner  may  sign  the  firm  name  to  a  note  or  bill,  without  more.  97, 

n-  (99)- 
infant,  in  a  firm,  his  liability  on  becoming  of  age,  262,  and  n.  (d). 

(See  Partnership.) 
liability  of  a  common  carrier  for  those  associated  with  him  as  partners,  686. 
PARTNERSHIP, 

What  constitutes  a  partnership,  124,  125. 
general,  124. 
special,  124. 
when  commenced,  124,  and  n.  (a). 
persons  competent  to  enter  into,  124. 
liability  of  persons  representing  infant  partners,  124,  125. 
in  what  it  may  consist,  125. 
0/  the  real  estate  of  a  partnership,  125-130. 
rights  of  partners  and  jKirtncrship  creditors  in  respect  to,  125, 126,  128, 
129. 
VOL.  I.  67 


794 


INDEX. 


PARTNERSHIP,  continued. 

rights  of  personal  representatives  and  lieirs,  126,  127. 
of  widow  of  a  partner,  128. 
of  purchasers  of  partnership  property,  128,  129. 
Of  the  good-icill,  130. 

whether  partnership  property,  130. 
Of  the  delectus  personarum,  131. 
How  a  partnership  may  be  formed,  131-138. 
how  formed  and  proved,  131. 
must  be  for  lawful  purposes,  131. 
conti-act  to  enter  into  and  renew,  how  determined  and  enforced,  132, 

133. 
shares  in  the  profits,  132,  136,  n.  (li.'). 
what  constitutes  a,  125,  n.  (h),  132,  n.  (q),  133,  138. 

between  partners,  and  between  themselves  and  third 
persons,  133. 
when  the  lender  of  money  is  a  partner,  134. 
when  a  clerk  or  agent  is,  134-137. 

difference  between  a  partnershiji  and  a  tenancy  in  common,  138. 
Of  the  right  of  action  hetiveen  piartners,  139,  140. 
when  a  partner  may  sue  at  law,  and  when  he  must  resort  to  equity,  139, 

140. 
one  firm  cannot  sue  another,  some  of  whose  members  are  the  same  per- 
sons, 140. 
Of  the  sharing  of  losses,  141. 

partners  may  make  any  agreement  as  to,  inter  se,  141. 
Of  dormant  and  secret  partners,  142. 
definition  of,  142. 
liabilities  of,  48,  n.  (o),  142. 
Of  retiring  partners,  143-145. 
liability  of,  when  an  annuity  is  secured  to  them,  143. 

until  notice,  144. 
what  is  notice,  144,  145. 
Of  nominal  partners,  145,  146. 
liability  of,  145. 

admissions  of,  when  conclusive,  146. 
Where  a  joint  liability  is  incurred,  147—151. 
for  the  stock  purchased  for  the  firm,  147-151,  152,  157,  165. 
when  the  purchasing  or  borrowing  partner  is  alone  liable,  147,  and  n. 
(n),  148,  and  n.  (p),  157,  159. 
Of  the  authority  of  each  partner,  151-168. 
how  derived,  151,  167. 
how  measured,  167,  168. 

admitisions  of,  to  bind  the  firm  or  prove  its  existence,  152. 
to  bind  the  firm  for  goods  purchased,  152,  153,  160. 


IXDEX.  795 

PARTNERSrnP,  continued. 

to  sell  or  assign  all  the  partnership  property,  154-156,  ICO. 

to  bind  the  firm  by  a  deed,  94,  n.  (/). 

revoked  by  dissent  of  his  copartners,  156. 

to  borrow  money,  157-159. 

to  sue  on  the  firm's  paper  after  retirement  of  a  copartner,  21,  n.  (c). 

to  bind  the  firm  for  trust-money  applied  by  him  to  its  use,  158,  159. 

to  indorse  the  firm's  name  to  a  bill  of  exchange  after  dissolution,  44,  n. 

(7). 
to  purchase  and  dispose  of  partnership  property,  154,  160. 
to  sign  the  firm's  name  without  more,  96,  n.  (g(/). 
to  render  the  firm  liable  for  his  torts,  160,  161,  n.  (n). 
to  bind  the  firm  by  a  guaranty  in  its  name,  161,  162. 
to  give  a  notice  to  quit,  433. 
to  release  the  debtors  of  the  firm,  162. 
to  bind  the  firm  by  his  signature,  admissions,  and  notice  received,  146. 

152,  163.  • 

what  circumstances  sufiicient  to  affect  a  person  with  the  liabilities  of  a 

partner,  164,  165,  166,  167. 
whether  a  partnership  exists  is  a  question  of  law,  152,  n.  (.«),  166,  n.  (7). 
when  a  new  partner  is  liable  for  debts  of  the  old  firm,  166. 
firm  not  bound  by  a  submission  to  arbitration  by  a  partner  without 

special  authority,  168. 
one  partner  cannot  bind  firm  or  transfer  its  property  for  his  own  debt, 
168,  n.  (kk). 
Poicer  of  a  majority,  156,  168,  169. 
Of  dissolution,  170-173. 
when  may  take  place  at  the  pleasure  of  each  partner,  1 70. 
whether  a  partnership  for  a  specified  time  is  dissoluble  at  the  pleasure 

of  each,  170. 
what  circumstances  will  justify  the  inference  of  an  agreement  to  form 

such  a  partnership,  133,  171. 
dissolution  by  a  partner's  assignment  of  his  interest,  131,  170,  171,  172. 
by  death,  172,  173. 
by  c0il  incapacity,  172,  173. 
by  insanity,  172. 
by  a  court  of  equity,  1 72,  1 73. 
by  bankruptcy  and  insolvency,  173. 
by  war,  173. 
continuance  of  the  firm  after  death  of  a  partner  by  express  agreement 

or  provision  in  his  will,  1 73,  and  n.  (a), 
power  of  surviving  partners  upon,  1 73. 
settlement  of  accounts  by  a  court  of  equity  upon,  173. 
Of  the  rights  of  creditors  in  respect  to  partnership  funds,  174-180. 
how  partnership  funds  must  be  applied,  174. 


796  INDEX. 

PARTNERSHIP,  continued. 

how  they  may  be  reached  by  a  private  creditor  of  a  partner,  174,  175, 

176. 
the  rights  of  a  creditor  of  a  dormant  partner,  1 75. 
the  attachable  interest  of  a  partner,  174,  n.  (g),  176-179. 
whether  the  sheriff  can  take  possession  of  the  partnership  property  to 

satisfy  a  private  debt,  176-179. 
respective  rights  of  the  joint  and  private  creditors  of  a  partner  in  respect 
to  his  private  property,  180. 
'     partnership  creditors  have  no  preference  as  to  property  bond  Jide  con- 
verted into  private  estate  during  partnership  or  upon  dissolution,  180. 
guaranty  of  the  debt  of,  how  discharged,  506-508. 
Limited  partnerships,  185,  186. 

how  constituted,  185.  •  ■ 

statute  provisions  relative  to,  186. 
liabilities  of  specl|,l  partner,  186. 
of  acquets  or  gains  in  Louisiana,  -306,  note. 
PART  OWNERS, 

joint  suits  by,  20-26,  n.  (c). 

{See  Joint  Parties,  passirn.) 
of  vessels,  whether  they  can  all  sue  on  a  policy  of  insurance  effected  in 
the  name  of  one,  48,  n.  (a). 
PASSENGERS, 

payment  of  fare  by,  649. 

liability  of  common  carriers  for,  how  measured,  690,  695. 

gratuitous  passengers,  691-695. 
the  baggage  of,  673,  720,  721,  722. 
PAYMENT, 

of  negotiable  paper,  presentment  for,  223-228. 
demand  of,  228-231. 
notice  of  non-payment,  231-236. 
protest  for  non-payment,  237,  238. 
of  another's  debt,  when  the  amount  may  be  recovered  of  the  debtor  by 

the  party  pa}'ing,  392-396. 
of  rent,  place  of,  424.  • 

liability  of  the  lessee  to  make,  423,  425. 
of  fare  by  a  passenger,  649. 
PECULIUM, 

of  a  slave,  339,  340. 
PERSONAL  PROPERTY,  SALE  OF, 
Essentials  of,  435. 
Absolute:  sale  of  chattels,  436-439. 
subject-matter  of,  437. 

possibilities,  not  coupled  with  an  Interest,  not  salable,  488. 
Price,  and  agreement  of  parties,  439,  440. 


INDEX.  797 

PERSONAL  PROPERTY,  SALE  OF,  continued. 
consideration  of,  376. 
Tlie  effect  of  a  sale,  440,  441. 
the  property  passes  by,  440. 
not  until  the  thing  sohl  is  identified,  441. 
lien  of  vendor,  441,  449,  476. 
Of  possession  and  delivery,  441-449. 
sale  without  delivery  avoided  &s  to  third  parties  by  fraud,  442. 
constructive  deliveiy,  443. 

duty  of  vendor  and  vendee  until  delivery,  444-447. 
time  and  place  of  delivery  by  vendor,  444,  446. 
of  payment  by  vendee,  447. 

in  specific  articles,  448. 
conditional  sales,  449-451. 
implied  condition  of  payment  of  price,  449. 
express  conditions,  449. 
contracts  of  sale  or  return,  450. 
condition  of  sales  at  auction,  450,  451. 
Mortgages  of  chattels,  452-455. 

at  common  law,  and  by  statute,  452,  453. 

distinction  between  a  moi-tgage  and  a  pledge,  452,  n.  (xx),  595-598. 
possession  by  the  mortgagor,  efTect  of,  453. 
mortgage  of  goods  to  be  purchased,  453,  454. 
mortgagor's  right  of  possession,  how  acquired,  454,  n.  (c). 
Warranty  of  chattels. 

(See  Warkaxty.) 
PHYSICIAN, 

master's  liabilit}'  for  attendance  of,  on  a  servant,  527. 
compensation  of,  539. 
PLEDGE, 

when  an  agent  has  power  to  make  a,  51,  n.  (g). 

when  a  factor,  79,  80. 

pledgee's  liability,  measure  of,  591. 

property  in  the  pledge,  592. 
use  of,  593. 

liability  to  account  for  the  profits  of,  593. 
liabiUty  for  the  theft  of,  594. 
difference  between  a  pledge  and  a  mortgage,  452,  n.  (xx),  594-599. 
of  a  bill  of  lading,  clfect  of,  on  the  consignor's  right  of  sto^jpage  in  tran- 
situ, 488. 
of  stocks,  594-599. 

rights  of  pledgee,  592,  600,  601. 
sale  of,  602. 

whether  an  imjiliod  warranty  in  a  sale  of,  456,  457,   n.  (g). 
termination  of,  002. 

67* 


798  INDEX. 

PLACE, 

of  presentment  for  payment  of  a  note  or  bill,  226,  228-230. 
when  payable  at  a  particular  place,  226. 
of  payment  by  tenant,  424. 
of  delivery  by  vendor,  444,  446. 
of  payment  by  vendee,  447. 
of  payment  in  specific  articles,  448,  449. 
of  delivery  by  and  to  a  common  carrier. 
{See  Delivery.) 
POSTMASTERS, 

liability  of,  622. 
POWER  OF  ATTORNEY,  ill 

how  made  and  executed,  94,  95. 
commonly  gives  power  of  substitution,  72. 
PRESENTMENT, 

of  ne;2;otiable  paper  for  acceptance,  221,  222. 
for  payment,  223,  227. 
PRESUMPTION, 

of  consideration  in  negotiable  paper,  205,  210. 

how  rebutted,  206,  210. 
of  indorsement  of  negotiable  paper  before  maturity,  215,  n.  (b). 
of  hirer's  negligence,  when  authorized  by  his  conduct,  606. 
of  the  negligence  of  the  common  carrier,  in  ca'se  of  injury  to  a  j^assen- 
ger,  695. 
PRICE, 

lien  of  vendor  for,  440,  441. 
time  and  place  of  payment  of,  444,  447. 
PRINCIPAL, 

how  the  liability  of,  for  the  acts  of  a  general  and  special  agent,  is  meas- 
ured, 38-42. 
liable  for  omission  or  neglect  of  agent,  41,  n.  (q). 
distinction  between  authoritij  and  appearance  of  authority^  42. 
bound  by  authority  which  he  really  gives,  or  which  he  appears  to  give,  42. 
but  not  by  appearance  of  authority  which  agent  assumes,  42. 
how  authority  may  be  derived  from,  42-44. 
rights  and  liabilities  of,  on  account  of  his  ratification  of  unauthorized 

acts,  44-47,  69,  72. 
how  authority  derived  from,  to  sign  a  written  instrument,  must  be  exe- 
cuted, 4  7. 
liability  of,  for  the  sales,  pledges,  warranties,  and  representations,  and 

misconduct  of  his  agent,  49-52,  62. 
right  of,  to  sue  on  the  contracts  of  his  agent,  53. 
may  revoke  at  pleasure,  the  authority  of  the  agent,  unless  coupled  with 

an  interest,  58-61. 
death.  Insanity,  or  bankruptcy  of,  revokes  the  authority  of  the  agent,  60. 


INDEX.  799 

PRINCIPAL,  continued. 

how  affected  by  notice  to  his  agent,  64. 
or  by  misconduct  of,  62. 

rights  of,  not  determinable  in  an  action  against  his  agent,  67,  68. 
as  regards  his  agent,  69-77. 
to  a  strict  conformity  to  his  instructions,  69. 
to  reject  unauthorized  acts,  69,  70. 
to  authorize  tlie  appointment  of  sub-agents,  71,  72. 
to  the  care,  diligence,  and  skill  of  his  agent,  73. 
to  indemnit}-  for  his  misconduct,  74. 
to  reject  the  agent's  sales  to  himself  and  purchases  of  himself, 

for  the  principal,  75. 
to  an  account,  76. 

to  his  property  Avhen  mixed  by  the  agent  ■with  his  own,  77. 
to  interest  on  balances  in  the  agent's  hands,  7  7. 
when  his  agent  is  a  factor  or  broker,  78-85. 
{See  Agents.    Attorneys.    Factors  and  Brokers.     Servants.) 
PROFITS, 

partnership  in,  125. 

when  sharing  in,  constitutes  a  partner,  132-138. 
PROMISE, 

use  of  the  term,  6. 
PROMISE  FOR  A  PROMISE, 

a  valid  consideration,  373-376. 
PROMISSORY  NOTE, 

(.See  Bills  and  Notes.     Indorsement.) 
PROTEST, 

for  non-acceptance  or  non-payment  of  bills,  237,  238. 
PUBLIC  ENEMIES, 

common  carrier  excused  for  losses  by,  638. 
PUBLIC  OFFICERS, 

liability  of,  on  their  contracts  for  the  public,  104-106. 

R. 
RAILROAD  COMPANIES, 

when  liable  as  common  carriers,  647,  662-664,  673. 
lial)ility  of,  for  passengers,  700,  n.  (l). 
bonds  of,  assignable,  240. 
RATIFICATION, 

Of  an  agent's  authority,  44-47. 
expressly  and  by  implication,  44,  45,  47,  n.  (u'). 
of  part  of  the  agency  confirms  the  whole,  46. 
once  made  cannot  be  disaflirmed,  46  n.  (w). 
by  principal  unknown  when  the  contract  was  made,  44,  n.  (l). 
parol,  of  a  deed,  not  sufficient,  47,  94,  n.  (/). 


800  INDEX. 

RATIFICATION,  continued. 

unless  the  seal  was  imnecessaiy  to  its  validity,  47. 
in  what  cases  a  principal  may  adopt  the  acts  of  a  person  who  assumes  to 

act  for  him,  45,  n.  (Jt). 
of  a  trespass,  45,  n.  («),  47,  n.  (?i'^),  69. 
to  bind  the  principal  must  be  with  a  full  knowledge  of  the  facts,  46, 

does  not  take  away  the  liability  of  an  agent  for  unauthorized  acts,  47. 

by  a  state,  47,  n.  («<-'?/). 

of  the  appointment  of  a  sub-agent,  71-73. 

of  an  attorney's  execution  of  his  power  by  a  sealed  instrument,  when 

valid,  47,  94,  n.  (/). 
by  a  corporation  of  an  act  done  in  its  behalf,  118. 
by  an  administrator  of  an  act  of  the  agent,  in  ignorance  of  the  prin- 
cipal's death,  111. 
Of  a  partner  s  authority. 

to  contract  for  the  firm,  156,  157. 
to  make  a  sealed  instrument,  94,  n.  (/). 
(5ee  Agent.    Factors  and  Brokers.     Partnership.     Principal.) 
Of  an  infants  contracts^  243,  269-275. 
what  contracts  of  an  infant  are  subject  to,  243,  244,  261,  n.  (?/),  274,  275. 
what  amounts  to,  268,  269. 

whether  he  may  ratify  a  sealed  instrument  by  parol,  269,  n.  (?/),  272,  273. 
mere  neglect  to  disaffirm,  with  other  facts,  may  amount  to,  271. 
mere  acquiescence  in  purchases  confirms  them,  273,  n.  (J). 
mere  acquiescence  in  a  conveyance  of  real  estate  does  not,  271,  273,  274. 
disaffirmance  of  a  new  conveyance,  273. 
of  a  wife's  contract  by  her  husband,  286,  287,  289,  292. 
REAL  PROPERTY, 

liability  of  the  owners  of,  for  injuries  committed  on,  92. 

of  a  partnership,  incidents  and  liabilities  of,  125-130. 

law  relative  to  dormant  partners  does  not  extend  to  sales  and  purchases 

of,  142,  n.  (/). 
of  a  partnership,  cannot  be   assigned  or  sold  by  one  partner  without 

special  authority,  155,  n.  (i;),  160,  n.  Q). 
covenants  affecting,  when  assignable,  199-201. 

infant's  power  to  bind  himself  by  sale  or  purchase  of,  243,  244,  271. 
infant's  liability  with  respect  to,  when  acquired  by  contract,  278-282. 
Purchase  and  sale  of,  414-420. 

specific  performance  of  contract  relative  to,  when  enforced,  414. 
inadequacy  of  consideration,  414. 
no  implied  warranty  in  the  sale  of,  457,  n.  (r/),  471. 
sales  of,  at  auction,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
when  avoided  by  by-bidding,  417,  418. 


INDEX. 


801 


REAL  PROPERTY,  continued. 

sales  of,  at  auction,  retraction  of  bids,  403,  418. 

powers  and  liabilities  of  auctioneer,  418-420. 
Hiring  o/,  421-434. 

effected  by  a  lease,  421. 

■what  passes  by  the  description  in  a  lease,  421. 
Of  the  general  liabilities  of  the  lessor,  422,  423. 
his  obligation  to  renew,  422. 
his  obligation  to  repair,  422. 

effect  of  neglect  to  fulfil  his  obligation  on  the  liability  of  lessee,  423. 
Of  the  general  liability  and  obligation  of  the  tenant,  423-428. 
to  pay  rent,  423,  425. 
to  pay  the  taxes,  423. 
payment  of  rent,  time  and  place  of,  424. 
to  repair,  424,  425. 

covenant  by,  not  to  assign  or  underlet,  426. 
forfeiture  by,  how  caused  and  waived,  426,  427. 
may  not  dispute  his  landlord's  title,  428. 
Of  surrender  of  leases  by  operation  of  law,  429,  430. 
Of  away-going  crops,  rights  of  tenant,  429,  430. 
Of  fxtures,- 430,  431. 
Of  notice  to  quit,  432-434. 
•who  entitled  to,  432,  433. 
what  is  sufficient,  433. 
effect  of,  434. 
RECEIPT, 

of  joint  trustees  and  co-oxccutors,  when  it  may  be  explained,  29,  30. 
of  agent  is  receipt  of  principal,  42,  n.  (/). 
RELEASE, 

of  the  interest  of  a  witness  cannot  be  made  by  an  attorney,  by  virtue  of 

his  oral  authority,  to  appear  in  a  cause,  97,  n.  (A), 
by  or  to  one  partner  is  a  release  by  or  of  all,  162. 
by  an  infant,  void,  243. 
by  or  of  one  of  joint  parties,  26-29. 
by  a  surety,  35. 
REMEDY  FOR  BREACH  OF  CONTRACT, 
wholly  pecuniary  in  courts  of  law,  412,  413. 
not  so  in  equity,  413. 
RENT, 

obligation  of  the  lessee  or  tenant  to  pay,  423,  424,  426. 
RETIRING  PARTNER, 

liabilities  of,  until  notice,  143-145. 
REVOCATION, 

of  an  agent's  authority, 


802  INDEX. 

REVOCATION,  continued. 

may  be  at  the  pleasure  of  the  principal,  unless  coupled  with  an  interest, 

or  given  for  valuable  consideration,  58  and  n.  (A),  85. 
whether  that  of  factor  is  revocable  after  advances  by  him,  59,  n.  (A),  85.  .^ 

until  notice  of,  continues  as  regards  third  persons,  42,  59,  60.  .jg 

occasioned  by  death  unless  coupled  with  an  interest,  61. 

by  lunacy,  61,  n.  (Z). 

by  banki'uptcy,  Gl,  n.  Q). 

by  marriage  oi  feme  sole,  61,  n.  (/). 
of  a  partner's  authority, 
by  dissent  of  his  copartners,  156,  168,  169. 
by  dissolution  of  the  firm,  169-173. 
by  assignment  of  a  partner's  interest,  171. 
by  death,  172,  173. 
by  civil  incapacity,  172. 
by  insanity,  172,  173. 
by  a  court  of  equity,  173. 
by  bankruptcy  and  insolvency,  1 73. 
by  war,  1 73. 
Of  guaranty,  516,  517. 

S.        . 
SAILORS, 

{See  Seamex.) 
SALE, 

of  real  property,  when  enforced  in  equity,  414. 

no  implied  warranty  in,  457,  n.  (^r),  471. 
at  auction,  effect  of  misdescription,  415-417,  451. 
in  separate  lots,  417. 
when  avoided  by  by-bidding,  417. 
powers  and  liabilities  of  auctioneer,  418- 

420. 
conditions  of  sale,  450. 
of  personal  property,  435-455. 

essentials  of,  435. 
absolute  sale  of,  436-439, 
subject-matter  of,  437,  438. 

possibilities  not  coupled  with  an  interest  not  sub- 
jects of,  438. 
price  and  agreement  of  parties,  439,  440. 
consideration  of,  376. 
effect  of,  440,  441. 

the  property  in  the  chattel  passes  by,  440. 
not  until  the  thing  sold  is  identified,  441. 


INDEX.  803 

SALE,  continued. 

of  personal  projierty,  continued. 

lien  of  Tendor,  441,  449,  476. 

possession  and  delivery  of,  441—448. 

sale  without  deliyery  avoided  as  to  third  parties  by 

fraud,  442. 
constructive  delivery,  443. 

duty  of  vendor  and  vendee  until  delivery,  444-447. 
time  and  place  of  delivery  by  vendor,  444,  446. 
of  payment  by  vendee,  447,  448. 
of  payment  in  specific  articles,  448. 
conditional,  449—451. 

implied  condition  of  payment  of  price,  449. 
ex2)re5s  conditions,  449. 
contracts  of  sale  or  return,  450. 
conditions  of  sale  at  auction,  450,  451. 
mortgages  of,  452-455. 
(&e  Persoxal  Property.) 
warranty  of,  456-475. 
(See  Warranty.) 

of  a  pledge,  by  a  pledgee,  602. 
agent's  power  of,  how  limited,  50,  51. 
(5ee  Stoppage  in  Transitu.) 
SEALED  INSTRTOIEXT, 

(5ee  Specialty.    Deed.) 
SEAMEN, 

contracts  in  derogation  of  their  general  rights,  when  held  void,  316,  317. 
forfeiture  of  the  wages  of,  318,  n.  («). 
SECRET  PARTNER,  142. 

{See  Dormant  Partner.)  ^ 

SERVANTS, 

may  be  appointed  by  an  agent,  71,  n.  (7). 

■what  constitutes  the  relation  of  master  and  servant,  86. 

master's  responsibility  for  the  servant's  acts,  how  measured,  87. 

when  he  is  responsible  for  the  servant's  torts,  87,  n.  {ad). 

liability  of  employer  for  the  torts  of  contractors,  sub-contractors,  and 

their  servants,  88-92. 
when  the  owners  of  real  estate  are  liable  for  injuries  committed  on  it 

by  others,  92,  and  n.  (rf). 
mjister  not  answerable  to  one  servant  for  injuries  received  from  anothei 

engaged  in  his  service,  528. 
exception  in  the  hire  of  .slaves,  335. 
contract  of  service  witliin  the  statute  of  frauds,  529. 
{See  lliRixG  OF  Persons.) 


804  INDEX. 

SERVANT  BY  INDENTURE, 

not  assignable,  196,  197. 
SET-OFF, 

what  allowed,  in  the  case  of  negotiable  paper,  214-216. 
SHIPMASTERS, 

to  what  extent  agent  of  the  owners,  42. 
powers  of,  66,  67. 
SHIPS,  OWNERS  OF, 

when  liable  as  common  carriers,  646,  647,  657. 
agents  of,  to  receive  goods,  651. 
SIGNATURE, 

of  an  agent,  what  sufficient  to  make  the  principal  a  party,  47-49. 

of  a  partner,  for  the  firm,  to  a  sealed  instrument,  94,  n.  (/). 

of  an  attorney,  how  it  must  be  made,  94-96,  118,  119. 

of  an  auctioneer,  whether  it  must  appear,  96,  n.  (gg)- 

of  a  trustee,  when  it  binds  himself,  102. 

of  executors  and  administrators,  when  it  renders  them  personally  liable, 

108. 
of  a  partner,  when  it  binds  the  firm,  163. 
of  an  indorser  to  a  bill  or  note,  204. 
of  the  maker,  208. 
SI.  A  YES, 

Nature  of  the  relation  of  master  and  slave,  326-328. 
peculiar  in  this  country,  326. 

maxim  that  the  law  favors  liberty,  how  to  be  understood,  327. 
no  intermediate  state  between  freedom  and  slavery  allowed,  327. 
maxim,  partus  sequitur  ventrem,  328. 
Action  for  freedom,  328-333. 

in  what  form  it  may  be  prosecuted,  328. 

proceedings  in,  pending  the  trial,  328, 

presumption  of  freedom  or  slavery,  how  it  may  arise  or  be  overcome  in 

either  case,  329,  330. 
presumption  against  every  negro  that  he  is  a  slave,  330. 
evidence  admissible  to  prove  freedom  or  slavery,  331,  332. 
damages  recoverable  by  plaintiff  on  proof  of  freedom,  332,  333. 
The  capacity  of  slaves  to  contract,  333,  334. 
how  regarded  by  the  law,  333. 
injuries  to  their  persons,  how  punished,  333,  334. 
death  of,  by  excessive  whipping,  murder,  334. 
Liability  of  the  master  for  the  slave,  334-336. 
for  his  torts,  334,  335. 
for  necessaries  furnished  to  him,  336. 
for  medical  attendance  on  him,  336,  527,  n.  (w). 
master  not  bound  by  his  contracts  with  his  slave,  336. 


INDEX.  805 

SLAVES,  continued. 

and  generally  not  even  for  emancipation,  339. 
Of  contracts  between  a  slave  and  one  not  his  master,  336,  337. 
generally  prohibited  by  statute,  336. 

whether  the  contract  of  a  slave  may  be  ratified  by  his  master,  336,  337. 
Of  gifts  to  a  slave,  337-339. 
contracts  of  emancipation  between  master  and  slave,  and  between  mas- 
ter and  third  persons,  338,  339. 
The  peculium,  339,  340. 
Of  the  marriage  of  slaves,  340,  341. 
not  legal,  340. 

effect  of  marriage  during  slavery  on  the  status  of  emancipated  slaves, 
341,  n.  (i). 
Emancipation  of,  342-345. 
how  affected,  342. 
taking  effect  on  a  contingency,  342. 
conditions  subsequent  to,  void,  343. 
the  rights  of  creditors,  how  affected  by,  343. 
restrictions  on,  344. 

validity  of,  dependent  on  the  laws  of  the  State  where  the  emancipated 
slaves  reside,  345. 
Of  slaves  fur  a  limited  time,  or  statu-liheri,  345-347. 
capacity  to  take  by  testament  or  gift,  346. 
a  court  of  equity  will  not  forbid  their  removal  from  the  State  by  the 

master,  346. 
condition  of  the  children  of  a  statu-liheri,  346,  347. 
warranty  in  the  sale  of  a  slave,  459,  n.  (/). 
responsibility  of  the  hirer  of,  603,  n.  (r),  608,  n.  (i). 
liability  of  common  carriers  for  the  transportation  of,  692,  n.  (ni),  694, 
n.  {mm'). 
SPECIALTY,  CONTRACTS  BY, 
definition  of,  7. 
consideration  of,  354. 

how  proved  and  varied  by  parol  evidence,  355,  356. 
must  be  sued  on  in  the  name  of  a  party  to,  391. 
{See  Deed.) 
SPECIFIC  ARTICLES, 

bills  and  notes  payable  in,  not  negotiable,  209. 
payment  in,  time  and  place  of,  448. 
SPECIFIC  PERFORMANCE, 

of  a  contract,  when  enforced  by  the  common  law,  412,  413. 
of  a  contract  relative  to  real  estate,  414. 
SPENDTHRIFTS, 

under  guardianship,  by  statute,  disability  of,  314,  315. 
VOL.   I.  68 


S06  INDEX. 

STAGE-COACHES, 

liability  of  owners  of,  as  common  carriers  of  goods,  643,  656. 
for  baggage  of  passengers,  673. 
STOPPAGE  IN  TRANSITU, 
right  of,  defined,  476,  481. 

created  by  the  insolvency  of  vendee,  476,  477,  478. 
notice  of,  to  whom  to  be  gi^en,  47  7,  478. 
effect  of,  479,  480,  481. 
to  whom  the  right  of  belongs,  481,  482. 
right  of,  defeated  by  delivery  to  the  consignee,  483-487. 

by  indorsement  of  the  bill  of  lading  by  consignee, 
487-489. 
effect  of,  with  consent  of  the  consignee  or  buyer,  489,  490. 
by  an  unauthorized  agent,  when  it  may  be  ratified,  45,  n.  (tt). 
SUB-AGENT, 

notice  to,  is  notice  to  principal,  64,  n.  (m). 
when  one  may  be  appointed  by  an  agent,  71,  72. 
whose  agent  the  substitute  is,  72,  77. 
to  whom  liable  to  account,  76. 
SUBJECT-MATTER, 

of  contracts,  411-413. 
SUBSCRIPTION  AND  CONTRIBUTION, 

a  valid  consideration,  377-379. 
SUNDAY, 

excluded  in  the  computation  of  time  for  the  demand  of  bills  and  notes. 
and  notice  thereof,  234. 
SURETIES, 

contribution  between,  32-37. 

representatives  of  deceased  surety  liable  for,  32,  n.  (e). 

(^e  Contribution.    Joint  Parties.) 
del  credere  factor  liable  as  surety,  78. 

rights  of,  against  the  principal,  on  payment  of  the  debt,  393,  394. 
for  the  payment  of  a  debt, 

(See  Guaranty  and  Suretyship.) 
SURETYSHIP, 

(See  Guaranty  and  Suretyship.) 
SURRENDER, 

of  leases  by  operation  of  law,  428,  429. 


TENANT, 

liability  of,  to  pay  rent  and  taxes,  422-426. 
to  repair,  424. 
on  his  covenant  not  to  assign  or  underlet,  426. 


INDEX.  807 

TENANT,  continued. 

cannot  recover  of  his  landlord  for  repairs  made  by  him,  5-il,  n. 
forfeiture  by,  how  caused  and  waived,  426,  427. 
surrender  by,  428,  429. 
right  of,  to  away-going  crops,  429,  430. 
to  fixtures,  430,  431. 
to  notice  to  quit,  432-434. 

{See  Rkal  Property.     Lease.) 

tp:nants  in  common, 

joint  suits  by,  20-26,  n.  (c). 

{See  Joint  Parties,  pass^im.) 

difference  between,  and  partners,  138,  147-151. 
TENDER, 

to  agent  is  tender  to  the  principal,  42,  n.  (J). 

by  the  lessee  of  rent,  424. 

of  freight-money  to  a  common  carrier,  649. 
TIME, 

when  notes  on  demand  become  overdue,  217-219. 

of  presentment  of  bills  for  acceptance,  221,  222. 

of  negotiable  paper  for  payment,  223,  224. 

of  forbearance,  as  a  consideration,  366,  367. 

offers  on,  acceptance  of,  {See  Assent,)  403-408. 

of  delivery  by  vendor,  444,  446. 

of  payment  by  vendee,  447,  448. 

of  the  consideration  of  a  contract,  391-398. 
TITLE, 

assignment  of  covenants  for,  199,  200. 

of  holder  of  negotiable  paper,  ho\y  impeached,  206,  211,  213. 
TORTS, 

of  agent,  ratification  of  by  principal,  45,  n.  («),  47,  n.  {wy). 

of  servant,  responsibility  of  master  for,  86-92. 

of  partner,  responsibility  of  his  copartners  for,  159. 

of  infants,  their  liability  for,  264-267. 

of  slaves,  liability  of  the  master  for,  334,  335. 
TRADE  MARKS,  ^ 

right  of  aliens  to  protection  in  the  use  of,  324. 
TRANSFER, 

of  bills  and  notes, 

{See  Ls'DORSEMENT.) 
TRUSTEES, 

Orifj'in  of  trusts,  100. 

how  administered,  100. 
Classif  cation  of  trusts,  101,  102. 

simple  and  special,  101. 

ministerial  and  discretionary,  101. 


808  INDEX. 

TRUSTEES,  continued. 

with  a  power  annexed,  and  mixture  of  trust  and  power,  101. 
private  and  public,  101. 
Private  trustees,  102-104. 
who  are,  102. 
estate  of,  102. 

when  personally  bound  by  their  contracts  as  trustees,  102. 
when  chargeable  with  simj^le  or  compound  interest,  103. 
liability  of  joint  for  each  other,  29,  30. 

cannot  buy  the  trust  property  for  themselves,  or  purchase  their  own 
for  the  cestui  que  trust,  75,  104. 
Puhlic  trustees,  104-106. 

ordinarily  not  personally  responsible  for  their  contracts  for  the  public, 

104. 
when  personally  responsible,  105,  106. 
guardians  are  trustees,  113. 
TRUST  AND  CONFIDENCE, 
a  valid  consideration,  372. 

U. 

USAGE, 

effect  of  in  determining  the  authority  of  an  agent,  39,  52. 

will  not  excuse  disobedience  by  an  agent  to  positive  instructions  by  his 

principal,  69. 
may  justify  an  agent  in  appointing  a  sub-agent,  72. 
sometimes  defined  by  law,  73. 
factor  must  conform  to  usages  of  trade,  80. 

effect  of,  in  regulating  demand  of  bills  and  notes,  and  notice  of  non- 
payment, 229. 
effect  of,  in  relation  to  bank-checks  and  discount  of  notes  by  banks,  229. 
delivery  to  a  common  carrier,  how  affected  by,  654. 

by  a  common  carrier,  how  affected  by,  661,  663,  665-670. 
USURY, 

lender  on,  when  a  partner,  134,  143,  n.  (i). 

• 
V. 

VENDOR, 

(5ee  Sale,  Real  Pkoperty,  &c.) 
VENDEE, 

(^See  Sale,  Real  Property,  &c.) 

W. 
WAIVER, 

of  demand  of  a  note  or  bill,  225. 


1 


INDEX.  S09 

WAIVER,  continued. 

of  a  right  of  action,  a  valid  consideration,  369. 
of  forfeiture,  by  the  lessor,  427. 
of  a  breach  of  warranty,  475. 
WAR, 

dissolves  partnership,  the  members  of  which  are  of  hostile  nations,  17:5. 
excuses  neglect  of  notice  of  non-imyment  of  note,  232,  n.  (k). 
WARD, 

(See  Guardian.) 
WAREHOUSE-MEN, 

liability  of,  how  measured,  618. 

when  extended  to  that  of  a  common  carrier,  618-62"). 
when  incurred,  620. 
delivery  by,  when  the  title  is  in  dispute,  621. 
when  the  common-carrier  is  liable  as  such,  671,  674,  681. 
WARRANT  OF  ATTORNEY, 

to  confess  judgment,  not  revocable,  61,  n.  (;h). 

need  not  be  under  seal,  94,  n.  (/). 
by  an  infant  authorizing  a  conveyance,  whether  void  or  voidable,  243. 
244. 
WARRANTY, 

kinds  of,  456. 

implied,  of  title  to  goods  in  vendor's  possession,  456-459. 
none  of  merchantable  qualitj-,  467, 
Express,  459-475. 
construction  of,  459. 

general,  whether  it  covers  obvious  defects,  459,  n.  (/). 
of  quality  must  be  express,  460. 
what  amounts  to,  461-465. 

implied,  when  the  goods  are  not  examined  by  vendee,  465,  466. 
whei  sold  by  sample,  467,  468. 
when  ordered  for  a  specific  purpose,  468-471. 
in  the  sales  of  provisions,  rjurere,  470,  n.  (u'). 
of  the  genuineness  of  a  negotiable  instrument,  220. 
none  where  a  warranty  is  refused  or  is  put  in  writing,  472. 
none  upon  the  sale  or  leasing  of  real  estate.  457.  n.  (</),  171. 
in  the  sale  of  ships,  472. 
breach  of,  what  amounts  to,  473,  474. 

remedies  of  vendee,  474,  475. 
how  waived,  475. 
authority  of  an  agent  to  make,  when  it  exists,  51,  52. 
covenants  of,  run  with  the  land,  199,  201. 
WATER,  CARRIERS  BY, 

liability  of,  644-647,  657,  6C5-670. 


810  INDEX. 

WHARFINGERS, 

liability  of,  G22. 
\VIDOW, 

her  dower  in  partnership  property,  128. 

liability  of  infant  widow  for  funeral  expenses  of  her  deceased  husband, 

245,  n.  (i). 
not  liable  for  the  support  of  her  children,  256. 
WIFE, 

agent  of  her  husband,  when,  43,  287,  289,  804. 
(See  Marriage.) 
WILL, 

power  of  married  woman  to  make,  by  statute,  in  the  different  States  of 
the  United  States,  -306,  note. 
WORK  AND  LABOR, 

a  consideration,  37]. 

(See  Hiring  of  Persons.) 
AVRITING, 

assignment  of  chose  in  action  need  not  be  in,  197. 
contracts  required  to  be  In,  by  the  Statute  of  Frauds, 
(See  Frauds,  Statute  of.) 

Y. 

YEAR, 

contract  of  service  not  to  be  performed  within,  must  be  in  writing,  529, 
530. 
"  YEAR  AND  A  DAY,"  242,  n.  (tt). 


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